Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of any insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, the Indemnified Party, (iii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iv) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) . (b) An Indemnifying Party’s liability for any Losses under this Article VIII shall be subject to the limitations set forth in Section 8.8 and as follows: (i) the Indemnifying Party shall have no liability for any Losses unless and until the aggregate amount of the Losses for which the Indemnifying Party is obligated to indemnify pursuant to Section 8.1 or 8.2 (and for the avoidance of doubt as may be required under Section 6.15) shall exceed Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000.00); and (ii) the aggregate liability of an Indemnifying Party for Losses (A) pursuant to Section 8.1(a) in the case of the Sellers or Section 8.2(a) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to Section 8.1(a) solely with respect to the representations and warranties made in Sections 4.7(j), (m), (n), (p), (q), (r), and (s) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case of the Buyers, shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a Party. (c) IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED).
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Samples: Securities Purchase Agreement (TerraForm Power, Inc.), Securities Purchase Agreement (TerraForm Power, Inc.)
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of taking into account any applicable insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, received by the Indemnified Party, (iii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iv) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) .
(b) An Indemnifying Party’s The Sellers’ liability for any Losses under this Article VIII 10 and for any Tax Losses attributable to Pre-Closing Foreign Taxes under Article 11 shall be subject to the limitations set forth in Section 8.8 and as followsfollowing limitations: (i) the Indemnifying Party Sellers shall have no liability for any such Losses or Tax Losses (other than those arising out of, or resulting from, the breach by either Seller of its representations and warranties in Article 4) unless and until the aggregate amount of the such Losses and Tax Losses for which the Indemnifying Party is Sellers are obligated to indemnify pursuant to Section 8.1 10.1(a) or 8.2 (Section 11.2, and for other Losses suffered by the avoidance of doubt as may be required Buyer that would have been indemnifiable under Section 6.1510.1(a) but for their exclusion under standards of materiality (indicated by the use of the words “Company Material Adverse Effect,” “material,” “significant” or “substantial”) set forth in Sections 3.3, 3.8(e), 3.9(a), 3.11, 3.12, 3.13, 3.14, 3.17(c), 3.20(c) and 3.20(e), the third line and the third sentence of Section 3.16 and the third and fourth sentences of Section 3.25 (“Immaterial Losses”) shall exceed Two Million One Hundred Twenty Five Thousand Dollars $1,000,000 ($2,125,000.00the “Threshold Amount”), in which case the Sellers shall be liable only to the extent that the aggregate amount of such Losses, Immaterial Losses and Tax Losses, as finally determined, shall exceed the Threshold Amount; and (ii) the aggregate liability of an Indemnifying Party the Sellers for all such Losses, Immaterial Losses (A) and Tax Losses pursuant to Section 8.1(a10.1(a) in the case of the Sellers or Section 8.2(a) in 11.2 (other than those arising out of, or resulting from, the case breach by either Seller of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to Section 8.1(a) solely with respect to the its representations and warranties made in Sections 4.7(j), (m), (n), (p), (q), (r), and (sArticle 4) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, Price and (Diii) pursuant to Section 8.2(c) in the case aggregate liability of the BuyersSellers for all Losses arising out of, or resulting from, Section 10.1(d) shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a PartyEuro 936,000.
(c) EXCEPT IN THE CASE OF FRAUD (FOR WHICH LIABILITY SHALL BE GOVERNED BY APPLICABLE LAW) AND AS Table of Contents PROVIDED BELOW, IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY DAMAGES THAT ARE NOT REASONABLY FORESEEABLE, SUCH AS CONSEQUENTIAL, INDIRECT, INCIDENTAL OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION OTHERWISE. THE FOREGOING SHALL NOT, HOWEVER, LIMIT THE ABILITY OF THE BUYER TO ALLEGE DAMAGES FOR AMOUNTS PAID OR PAYABLE THE DIMINUTION IN PRESENT VALUE OF THE COMPANY ASSOCIATED WITH ANY BREACH OF THE SELLERS’ REPRESENTATIONS AND WARRANTIES RELATING TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED)THE COMPANY AND THE SUBSIDIARIES.
Appears in 1 contract
Samples: Stock Purchase Agreement
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of taking into account any applicable insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, received by the Indemnified Party, (iii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iv) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) .
(b) An Indemnifying Party’s The Sellers’ liability for any Losses under this Article VIII 10 and for any Tax Losses attributable to Pre-Closing Foreign Taxes under Article 11 shall be subject to the limitations set forth in Section 8.8 and as followsfollowing limitations: (i) the Indemnifying Party Sellers shall have no liability for any such Losses or Tax Losses (other than those arising out of, or resulting from, the breach by either Seller of its representations and warranties in Article 4) unless and until the aggregate amount of the such Losses and Tax Losses for which the Indemnifying Party is Sellers are obligated to indemnify pursuant to Section 8.1 10.1(a) or 8.2 (Section 11.2, and for other Losses suffered by the avoidance of doubt as may be required Buyer that would have been indemnifiable under Section 6.1510.1(a) but for their exclusion under standards of materiality (indicated by the use of the words “Company Material Adverse Effect,” “material,” “significant” or “substantial”) set forth in Sections 3.3, 3.8(e), 3.9(a), 3.11, 3.12, 3.13, 3.14, 3.17(c), 3.20(c) and 3.20(e), the third line and the third sentence of Section 3.16 and the third and fourth sentences of Section 3.25 (“Immaterial Losses”) shall exceed Two Million One Hundred Twenty Five Thousand Dollars $1,000,000 ($2,125,000.00the “Threshold Amount”), in which case the Sellers shall be liable only to the extent that the aggregate amount of such Losses, Immaterial Losses and Tax Losses, as finally determined, shall exceed the Threshold Amount; and (ii) the aggregate liability of an Indemnifying Party the Sellers for all such Losses, Immaterial Losses (A) and Tax Losses pursuant to Section 8.1(a10.1(a) in the case of the Sellers or Section 8.2(a) in 11.2 (other than those arising out of, or resulting from, the case breach by either Seller of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to Section 8.1(a) solely with respect to the its representations and warranties made in Sections 4.7(j), (m), (n), (p), (q), (r), and (sArticle 4) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, Price and (Diii) pursuant to Section 8.2(c) in the case aggregate liability of the BuyersSellers for all Losses arising out of, or resulting from, Section 10.1(d) shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a PartyEuro 936,000.
(c) EXCEPT IN THE CASE OF FRAUD (FOR WHICH LIABILITY SHALL BE GOVERNED BY APPLICABLE LAW) AND AS PROVIDED BELOW, IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY DAMAGES THAT ARE NOT REASONABLY FORESEEABLE, SUCH AS CONSEQUENTIAL, INDIRECT, INCIDENTAL OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION OTHERWISE. THE FOREGOING SHALL NOT, HOWEVER, LIMIT THE ABILITY OF THE BUYER TO ALLEGE DAMAGES FOR AMOUNTS PAID OR PAYABLE THE DIMINUTION IN PRESENT VALUE OF THE COMPANY ASSOCIATED WITH ANY BREACH OF THE SELLERS’ REPRESENTATIONS AND WARRANTIES RELATING TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED)THE COMPANY AND THE SUBSIDIARIES.
Appears in 1 contract
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of any insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, received by the Indemnified Party, (iii) net of any tax benefit actually realized by in connection with such Loss or the Indemnified Party or any of its Affiliatescircumstances resulting in the Loss, and (iv) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, by the Indemnified Party, less the costs of collection thereof and any related increases in insurance premiums or other chargebacks (it being agreed that the Indemnified Party shall have no obligation to seek to recover any insurance proceeds in connection with making a claim under this ARTICLE VIII). If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a8.5(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) ).
(b) Buyer Indemnified Parties shall not be entitled to make any claim for indemnification under Section 8.2(a) unless the total of all claims made by Buyer Indemnified Parties in respect of Section 8.2(a) exceeds Five Hundred Thousand Dollars ($500,000) (the “Basket Amount”), in which case Buyer Indemnified Parties will be entitled to recover the full amount (including the Basket Amount), to the extent otherwise allowable hereunder. Seller Indemnified Parties shall not be entitled to make any claim for indemnification under Section 8.3(a) unless the total of all claims made by Seller Indemnified Parties in respect of Section 8.3(a) exceeds the Basket Amount, in which case Seller Indemnified Parties will be entitled to recover the full amount (including the Basket Amount), to the extent otherwise allowable hereunder. An Indemnifying Party’s liability for any Losses under this Article VIII shall be subject to the limitations set forth in Section 8.8 and as follows: (i) the Indemnifying Party shall have no liability for any Losses unless and until the aggregate amount of the Losses for which the Indemnifying Party is obligated to indemnify pursuant to Section 8.1 or 8.2 (and for the avoidance of doubt as may be required under Section 6.15) shall exceed Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000.00); and (ii) the aggregate liability of an Indemnifying Party for Losses (A) pursuant to Section 8.1(a) in the case of the Sellers or Section 8.2(a) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to or Section 8.1(a) solely with respect to the representations and warranties made in Sections 4.7(j8.3(a), (m)as applicable, (n), (p), (q), (r), and (s) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, be limited to an amount equal to fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Price. An Indemnifying Party’s liability for any Losses under Section 8.2(b) in the case of the Buyers through Section 8.2(g) or Section 8.3(b), as applicable, shall not exceed, in the aggregate, twenty-five percent (25%) of be limited to an amount equal to the Purchase Price; provided that . Notwithstanding the foregoing or anything in this Agreement to the contrary: (i) claims of fraud, intentional misrepresentation or willful breach shall not be subject to any Basket Amount or other liability limit and (ii) claims with respect to any breach or inaccuracy of the Seller Fundamental Representations, the Buyer Fundamental Representations or the representations and warranties contained in Section 8.1(c) relating 4.8 or Section 4.12 shall not be subject to any Basket Amount but liability for Losses resulting therefrom shall be limited to an amount equal to the covenants in Section 6.2, Section 6.4 and Section 6.14 Purchase Price. Seller shall have no right to seek contribution from any Target Group Company with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case all or any part of the Buyers, shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in any of such indemnification obligations under this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8ARTICLE VIII. Solely for purposes of determining the amount of any Lossthis ARTICLE VIII, any qualifications in the representations, warranties and covenants with respect to materiality, materialmaterial adverse effect, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect similar qualification shall be disregarded and will not have any effect with respect to (including for purposes of determining the calculation existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a Party.
(c) IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIREDwith respect thereto).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Altus Power, Inc.)
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of any insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, the Indemnified Party, calculated net of any out-of-pocket expenses incurred by such Person in collecting such amount and net of the present value of any increase in insurance premiums or other charges paid or reasonably expected to be paid by such Person arising out of, and to the extent attributable to, such Loss (iiiii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iviii) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. The Indemnified Party shall use its commercially reasonable efforts to obtain any such tax benefits, insurance proceeds or other amounts described in this Section 15.4(a). If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a15.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) ).
(b) An Indemnifying Party’s liability for any Losses under this Article VIII 15 shall be subject to the limitations set forth in Section 8.8 15.8 and as follows: :
(i) the Indemnifying no Indemnified Party shall have no any recourse for liability for any Losses unless and pursuant to Section 15.1(a) or Section 15.2(a) until the aggregate amount of all Qualifying Losses incurred by the Indemnified Party equals or exceeds one percent (1%) of the Swap Value with respect to the Project and/or Project Company that is the subject of the claim (the “Deductible”), but if exceeded, to the full extent of such Losses for which and not only to the Indemnifying Party is obligated to indemnify pursuant to Section 8.1 or 8.2 (and for extent they exceed the avoidance of doubt as may be required under Section 6.15) shall exceed Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000.00); and Deductible;
(ii) the aggregate liability of an Indemnifying Party for Losses (A) pursuant to Section 8.1(a15.1(a) in the case of the Sellers Renova or Section 8.2(a15.2(a) in the case of the Buyers EMYC shall not exceed, in the aggregate, twenty-five twenty percent (2520%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental RepresentationsSwap Value, (B) pursuant to Section 8.1(a) solely with respect to the representations Project and/or Project Company that is the subject of the claim; and
(iii) The foregoing limitations shall not apply in respect of claims for indemnification pursuant to Section 15.1(a) or Section 15.2(a) in respect of (A) breaches of Fundamental Representations and breaches of the representation and warranties made set forth in Sections 4.7(jSection 7.7 (Tax Matters), (m), (n), (p), (q), (r), and (s) (collectively, for which the “Special Tax Representations”) aggregate liability of the Indemnifying Party shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 Swap Value with respect to the Sellers and Section 8.2(b) relating to Project and/or Project Company that is the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case subject of the Buyersclaim, shall not exceedor (B) any fraud, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any willful breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for intentional misrepresentation.
(c) For purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to Losses resulting from a breach of any representationrepresentation or warranty (but not for purposes of determining whether there has been any breach thereof), all qualifications or exceptions in any representation or warranty referring to the terms “material”, “materiality”, “in all material respects”, “Material Adverse Effect,” or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a Partyother similar qualification shall be disregarded.
(cd) EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL INCIDENTAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED).
Appears in 1 contract
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying Party’s liability under this Agreement shall be determined (i) net of any insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, the Indemnified Party, calculated net of any out-of-pocket expenses incurred by such Person in collecting such amount and net of the present value of any increase in insurance premiums or other charges paid or reasonably expected to be paid by such Person arising out of, and to the extent attributable to, such Loss (iiiii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iviii) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. The Indemnified Party shall use its commercially reasonable efforts to obtain any such tax benefits, insurance proceeds or other amounts described in this Section 15.4(a). If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a15.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received from the Indemnifying Party) ).
(b) An Indemnifying Party’s liability for any Losses under this Article VIII 15 shall be subject to the limitations set forth in Section 8.8 15.8 and as follows: :
(i) the Indemnifying no Indemnified Party shall have no any recourse for liability for any Losses unless and pursuant to Section 15.1(a) or Section 15.2(a) until the aggregate amount of all Qualifying Losses incurred by the Indemnified Party equals or exceeds one percent (1%) of the Purchase Price with respect to the Project and/or Project Company that is the subject of the claim (the “Deductible”), but if exceeded, to the full extent of such Losses for which and not only to the Indemnifying Party is obligated to indemnify pursuant to Section 8.1 or 8.2 (and for extent they exceed the avoidance of doubt as may be required under Section 6.15) shall exceed Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000.00); and Deductible;
(ii) the aggregate liability of an Indemnifying Party for Losses (A) pursuant to Section 8.1(a15.1(a) in the case of the Sellers Renova or Section 8.2(a15.2(a) in the case of the Buyers EMYC shall not exceed, in the aggregate, twenty-five twenty percent (2520%) of the Purchase Price, with respect to the Project and/or Project Company that is the subject of the claim; and
(iii) The foregoing limitations shall not apply in respect of claims for indemnification pursuant to Section 15.1(a) or Section 15.2(a) in respect of (A) breaches of Fundamental Representations and breaches of the representation and warranties set forth in Section 7.7 (Tax Matters), for which the aggregate liability of the Indemnifying Party shall not exceed the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental RepresentationsProject and/or Project Company that is the subject of the claim, or (B) pursuant to Section 8.1(aany fraud, willful breach or intentional misrepresentation.
(c) solely with respect to the representations and warranties made in Sections 4.7(j), (m), (n), (p), (q), (r), and (s) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case of the Buyers, shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for For purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to Losses resulting from a breach of any representationrepresentation or warranty (but not for purposes of determining whether there has been any breach thereof), all qualifications or exceptions in any representation or warranty referring to the terms “material”, “materiality”, “in all material respects”, “Material Adverse Effect,” or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a Partyother similar qualification shall be disregarded.
(cd) EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL INCIDENTAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUSINESS INTERRUPTION, DIMINUTION OF VALUE, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED).
Appears in 1 contract
Samples: Securities Purchase Agreement (Terraform Global, Inc.)
Measure of and Limitations upon Indemnification. (a) The In determining the amount of the Indemnifying Party’s liability any Loss for which any party is entitled to indemnification under this Agreement shall Article 10, the gross amount thereof (a) will be determined (i) net of reduced by any insurance proceeds actually receivedrealized, over and other savings that actually reduce the overall impact of the Losses uponabove applicable deductibles paid, the by such party from third party insurers and (b) will be increased by an Indemnified Party, (iii) net of 's tax cost and reduced by any Indemnified Party's tax benefits to the extent such tax cost or tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iv) net of any other third party amounts actually recovered in each case that reduce the Loss suffered or incurred by, the Indemnified Party. If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described in this Section 8.4(a) after an indemnification payment is made, the applicable Indemnified Party shall promptly refund to the Indemnifying Party such amount (not to exceed the amount received results from the Indemnifying Party) incurrence of such Loss.
(b) An Indemnifying Party’s The Sellers' liability for any Losses under this Article VIII 10 shall be subject to the limitations set forth in Section 8.8 and as followsfollowing limitations: (i) the Indemnifying Party Sellers shall have no liability for any Losses (other than those arising out of, or resulting from, the breach by any Seller of its representations and warranties in Sections 3.4, 3.10 or Article 4) unless and until the aggregate amount of the Losses for which the Indemnifying Party is Sellers are obligated to indemnify pursuant to Section 8.1 or 8.2 (and for the avoidance of doubt as may be required under Section 6.15) 10.1 shall exceed Two Million One Hundred Twenty Five Thousand Dollars $5 million ($2,125,000.00)the "THRESHOLD AMOUNT") in which case the Sellers shall be liable only to the extent that the aggregate amount of such Losses, as finally determined, shall exceed the Threshold Amount; and (ii) the aggregate liability of an Indemnifying Party the Sellers for all Losses (A) pursuant to Section 8.1(a) in other than those arising out of, or resulting from, the case breach by any Seller of the Sellers or Section 8.2(a) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to Section 8.1(a) solely with respect to the its representations and warranties made in Sections 4.7(j)3.4, (m), (n), (p), (q), (r), and (s) (collectively, the “Special Tax Representations”3.10 or Article 4) shall not exceed $350 million in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case of the Buyers, shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that the limitations in this Section 8.4 shall not apply to any breach by the Buyers to pay the Purchase Price or the amounts set forth in Section 6.8. Solely for purposes of determining the amount of any Loss, any qualifications in the representations, warranties and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of the amount of any Loss attributable to a breach of any representation, warranty or covenant set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a Party.
(c) IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIALThe Buyer's liability for any Losses under this Article 10 shall be subject to the following limitations: (i) the Buyer shall have no liability for any Losses (other than those arising out of, INDIRECTor resulting from, INCIDENTAL OR OTHER SIMILAR DAMAGESthe breach by the Buyer of its representations and warranties in Sections 5.4, INCLUDING BUSINESS INTERRUPTION5.6 or 5.10) unless and until the aggregate amount of the Losses for which the Buyer is obligated to indemnify pursuant to Section 10.1 shall exceed the Threshold Amount in which case the Buyer shall be liable only to the extent that the aggregate amount of such Losses, DIMINUTION OF VALUEas finally determined, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED).shall exceed the Threshold Amount; and
Appears in 1 contract
Samples: Stock Purchase Agreement (SDL Inc)
Measure of and Limitations upon Indemnification. (a) The amount of the Indemnifying PartySellers’ or Buyer’s respective liability under this Agreement shall be determined (i) net of calculated after giving effect to any insurance proceeds actually received, and other savings that actually reduce the overall impact of the Losses upon, the Indemnified Party, (iii) net of any tax benefit actually realized by the Indemnified Party or any of its Affiliates, and (iv) net of any other third party amounts actually recovered from third parties, including insurance proceeds, in each case that reduce net of the Loss suffered or incurred by, the Indemnified Partyreasonable third party out-of-pocket costs and expenses associated with such recoveries. If the Indemnified Party or any of its Affiliates actually receives tax benefits, insurance proceeds or other amounts described recoveries from third parties are actually realized (in this Section 8.4(aeach case calculated net of the reasonable third party out-of-pocket costs and expenses associated with such recoveries) after by an Indemnified Party subsequent to the receipt by such Indemnified Party of an indemnification payment is madehereunder in respect of the claims to which such insurance proceeds, or third-party recoveries relate, the applicable Indemnified Party shall hold such amounts in trust and appropriate refunds shall be made promptly refund to the Indemnifying Party regarding the amount of such amount indemnification payment. (not to exceed the amount received from the Indemnifying indemnifying Party) ).
(b) An Indemnifying Party’s liability for any Losses under this Article VIII shall be subject Notwithstanding anything to the limitations set forth contrary herein, Sellers shall not be liable to the Buyer Indemnified Parties for indemnification under clause (a) of Section 8.2(a)(i) or Section 8.2(a)(ii) in Section 8.8 and as follows: connection with any item or group of related items that results in Losses incurred by a Buyer Indemnified Party for which it would otherwise be entitled to indemnification hereunder of less than $62,500 (i) the Indemnifying Party “De Minimis Losses”). In addition, Sellers shall not have no any liability for any Losses unless and arising out of or relating to this Agreement until the aggregate amount of the all Losses incurred by Buyer Indemnified Parties for which the Indemnifying Party is obligated they are entitled to indemnify pursuant to Section 8.1 or 8.2 indemnification under this Article VIII (and for the avoidance of doubt as may be required under Section 6.15) shall exceed Two Million One Hundred Twenty Five Thousand Dollars ($2,125,000.00); and (ii) the aggregate liability of an Indemnifying Party for Losses (A) pursuant to Section 8.1(a) in the case of the Sellers or Section 8.2(a) in the case of the Buyers shall not exceedwhich, in the aggregate, twenty-five percent (25%) of the Purchase Price with respect to non-Fundamental Representations and the Purchase Price with respect to Fundamental Representations, (B) pursuant to Section 8.1(a) solely with respect to the representations and warranties made in Sections 4.7(j), (m), (n), (p), (q), (r), and (s) (collectively, the “Special Tax Representations”) shall not exceed in the aggregate, fifteen percent (15%) of the Purchase Price and (C) pursuant to Sections 8.1(b) and Section 8.1(c) in the case of the Sellers or Section 8.2(b) in the case of the Buyers shall not exceed, in the aggregate, twenty-five percent (25%) of the Purchase Price; provided that with respect to Section 8.1(c) relating to the covenants in Section 6.2, Section 6.4 and Section 6.14 with respect to the Sellers and Section 8.2(b) relating to the covenants in Section 6.2 and Section 6.4 with respect to the Buyers, shall not exceed, in the aggregate, the Purchase Price, and (D) pursuant to Section 8.2(c) in the case of the Buyers, shall not exceed, in the aggregate, the Purchase Price; provided, that the limitations set forth in this Section 8.4 shall not apply to any Loss arising as a result of fraud by any Party; and provided further and for the avoidance of doubt, that shall not include any De Minimis Losses) equals or exceeds $487,500 (the limitations “Deductible Amount”), in which event the indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible Amount. Notwithstanding anything to the contrary in this Section 8.4 Agreement, neither the De Minimis Losses limitation nor the Deductible Amount limitation shall not apply to in the case of any breach by of or inaccuracy in any of the Buyers to pay the Purchase Price Fundamental Representations or the amounts set forth in Section 6.8. Solely Fraud.
(c) For purposes of this Article VIII (including for purposes of determining the amount existence of any Lossinaccuracy in, or breach of, any qualifications in the representations, warranties representation or warranty and covenants with respect to materiality, material, Transferred Company Material Adverse Effect or Buyer Material Adverse Effect shall be disregarded and will not have any effect with respect to the calculation of for calculating the amount of any Loss attributable to a with respect thereto), any inaccuracy in or breach of any representationrepresentation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(d) The representations, warranties, covenants and agreements of Sellers, and any Buyer Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of any Buyer Indemnified Party (including by any of its Representatives) or by reason of the fact that the Buyer Indemnified Party or any of its Representatives knew or had reason to know that any such representation or warranty is, was or covenant might be inaccurate or by reason of a Buyer Indemnified Party’s waiver of any condition set forth in this Agreement (including the Seller Disclosure Letter) or any certificate delivered by a PartySection 7.1, as applicable.
(e) Notwithstanding anything to the contrary herein, except in the case of the breach of or inaccuracy in Fundamental Representations, any Losses for which the Buyer Indemnified Parties are entitled to indemnification pursuant to clause (c) IN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CONSEQUENTIALof Section 8.2(a)(i) in respect of the recapture of any investment tax credit pursuant to the Tax Equity Documents relating to Holdco 6, INDIRECTHoldco 7 or Holdco 7A, INCIDENTAL OR OTHER SIMILAR DAMAGESor relating to Holdco 8 to the extent based on any event occurring prior to the Closing Date, INCLUDING BUSINESS INTERRUPTIONand Fraud, DIMINUTION OF VALUEthe aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.2(a) shall not exceed $4,000,000. The aggregate amount of Losses resulting from the breach of Fundamental Representations for which Sellers shall be liable shall not exceed the amount of the Purchase Price received by the respective Sellers. The aggregate amount of Losses resulting from Fraud for which Sellers shall be liable shall not be limited.
(f) Any Losses payable to Buyer Indemnified Parties pursuant to Section 8.2(a) shall be satisfied solely as a deduction from the Production Earnout Payment in accordance with Section 8.6.
(g) Notwithstanding anything to the contrary herein, COST OF CAPITAL OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITYexcept in the case of Fraud, FOR ANY BREACH OR DEFAULT UNDER, OR ANY ACT OR OMISSION ARISING OUT OF OR IN ANY WAY RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, UNDER ANY FORM OF ACTION WHATSOEVER, WHETHER IN CONTRACT OR OTHERWISE (OTHER THAN INDEMNIFICATION FOR AMOUNTS PAID OR PAYABLE TO THIRD PARTIES IN RESPECT OF ANY THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION HEREUNDER IS OTHERWISE REQUIRED)the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.2(b) shall not exceed the amount of the Purchase Price. The aggregate amount of Losses resulting from Fraud for which Buyer shall be liable shall not be limited.
Appears in 1 contract
