Other Limitations on Indemnification. (a) No Party shall have any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c). (b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit. (c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived. (d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Penn Virginia Corp), Limited Liability Company Unit Purchase and Sale Agreement (American Midstream Partners, LP)
Other Limitations on Indemnification. (aA) No Party The amount of any Losses sustained by an indemnified party shall have be reduced (i) by any liability pursuant to Section 7.2(aamount received by such indemnified party with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such indemnified party) or Section 7.3(afrom any third party (not a party to this Agreement) above alleged to be responsible therefor, and (ii) by the amount of any Tax benefit actually realized with respect to the Loss. Each of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any breach amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party realizes a Tax benefit or receives an amount under insurance coverage or from any such third party with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying party for any payment made by such indemnifying party in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing in this Section 12.6(A) shall limit in any way the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany or HTI Acquisition, as the case may be, determines would be commercially inadvisable to pursue.
(B) Each indemnified party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any representation or warranty (other than Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party shall not be required to make any Fundamental Representation) unless and until the aggregate amount payment to an indemnified party in respect of all of the Damages such Loss to the Buyer Indemnified Parties exceeds $2,000,000 extent such indemnified party has failed to comply with the foregoing obligation.
(C) Upon making any indemnification payment, the “Indemnification Threshold”)indemnifying party will, in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of such payment, be subrogated to all rights of the excess over indemnified party against any third party in respect of the Indemnification Threshold. There shall be no threshold or deductible with respect Loss to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in which the aggregate, $15,000,000payment relates; provided, however, that subject until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to Section 7.5(c) belowthe indemnified party's rights against such third party. Without limiting the generality of any other provision hereof, (a) Buyer’s liability pursuant each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to Section 7.3(b) evidence and perfect the above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) described subrogation and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitsubordination rights.
(cD) Under no circumstances Neither Alleghany nor HTI Acquisition shall have any Party be liable right to set off any other Party for Losses against any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers made by such party pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementAgreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 2 contracts
Sources: Merger Agreement (Alleghany Corp /De), Agreement and Plan of Merger (Alleghany Corp /De)
Other Limitations on Indemnification. (a) No Party The following principles, terms and limitations shall have apply to any liability pursuant to Section 7.2(a) or Section 7.3(a) above claims for indemnification with respect to any Seller-Indemnified On-Site Environmental Liabilities or related claims for breach of the representations set forth in Section 2.15:
(i) If the cost of investigation or remediation of actual or alleged contamination of the Business Real Properties, or the cost of correcting a non-compliance with Environmental Law that is subject to indemnity, is increased due to the actions or omissions by or on behalf of any representation or warranty (Person other than Seller, its Affiliates, their respective Representatives or any Fundamental Representation) unless and until the aggregate amount Person for which or whom Seller or any of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”)its Affiliates or Representatives is responsible, in which case the Buyer Indemnified Parties Seller shall not be entitled to indemnification only responsible to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or such increase in costs incurred.
(ii) Buyer’s obligations Seller shall only be obligated to Sellers pursuant indemnify Purchaser Indemnitees for fines or penalties arising out of actual or alleged noncompliance with Environmental Laws accruing during the period prior to Section 7.3(b) the Closing Date or Section 7.3(c).
(b) The aggregate liability of any Party pursuant for expenditures made or actions taken by Purchaser Indemnitees to this Article 7 achieve compliance with applicable Environmental Laws, to the extent the operations at the Business Real Property were not in compliance on the Closing Date, and shall in no event exceedbe liable (A) for any Losses arising out of any expenditures made or actions taken by any Purchaser Indemnitee to maintain compliance with applicable Environmental Laws based on circumstances arising after the Closing Date; (B) for expenditures that are not commercially reasonable, individually taking into account the obligation to come into compliance with applicable Environmental Law or, subject to the express written consent of Seller at Seller’s sole discretion, improve the Business Real Property in a manner that goes beyond what is required to bring said assets into compliance with applicable Environmental Law for the purpose of providing an economic benefit to a Purchaser Indemnitee; or (C) for operating costs relating to the ongoing operation of the Business at the Business Real Property, provided, for purposes of clarification, that this limitation does not apply to the costs incurred to correct the noncompliance that is the subject to indemnification hereunder.
(iii) Seller shall not be responsible for any Losses, including costs of investigation and remediation of properties impacted by Hazardous Materials, to the extent such Losses are incurred due to (A) actions that are not required by applicable Environmental Law or any demand, claim, action, suit, directive or order of a Governmental Authority or any third party, unless such actions are undertaken with the express written consent of Seller at Seller’s sole discretion; (B) any change in Environmental Laws or written interpretation thereof by the applicable Governmental Authority, in either case, after the Closing Date; (C) the closure of any Business Real Property after the Closing Date; (D) any change in the aggregateuse of the Business Real Property after the Closing Date that would trigger investigation or remediation obligations or would result in the imposition of a more stringent remediation standard; or (E) any investigation or remediation that is conducted to achieve compliance in excess of the least stringent applicable remediation standard, $15,000,000; providedconsistent with the manufacturing operations at the Business Real Property in effect as of the Closing Date. Seller shall not be liable for any operating costs associated with post-remedial monitoring (excluding such monitoring that is implemented to verify that a remedial activity has achieved compliance with applicable remediation standards, howeverprior to entering into a long-term post-remedial phase) and operations and maintenance after completion of a remediation of any environmental media. To the extent necessary to implement the foregoing, Purchaser Indemnitees shall agree to appropriate deed restrictions and engineering controls that subject prohibit uses of the property that are inconsistent with the least stringent remediation standard and limit exposure to Section 7.5(ccontaminants that are allowed to remain in place.
(iv) belowSeller shall not be responsible for costs for investigation, remediation, corrective actions or other Losses arising out of or related to any investigation of soil or groundwater that any Purchaser Indemnitee voluntarily initiates, performs or causes to be performed by any Person or Governmental Authority, if such investigation is not required by any Environmental Law or demanded or required by a Governmental Authority, or is not a prudent response (awithout consideration of the indemnity provided hereunder) Buyer’s liability to a demand or claim by a third party.
(v) Seller shall not be responsible for any Losses arising as a result of any matter as to which a Purchaser Indemnitee has initiated contact with a Governmental Authority if the principal, but not necessarily exclusive, reason for the contact is to identify, enhance or accelerate a claim for indemnification pursuant to Section 7.3(bthis Agreement.
(vi) above If any Purchaser or Affiliate of Purchaser sells any Business Real Property and the right of Purchaser Indemnitees to indemnification with respect to On-Site Environmental Liabilities has not terminated in accordance with the terms of this Section 9.5 or Section 9.2(a)(i)(A) for breach of the representations set forth in Section 2.15, Purchaser shall or shall cause said Affiliate to include Section 9.5(d)(iii) or equivalent language in the purchase and sale agreement and shall indemnify, defend and hold harmless Seller Indemnitees for any covenant (including Buyer’s liability Losses incurred by Seller Indemnitees due to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant failure to Section 7.2(a) comply with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitthis obligation.
(cvii) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement Seller shall not be waived.
(d) The Parties will make appropriate adjustments obligated to indemnify Purchaser Indemnitees for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than associated with Purchaser Indemnitees’ oversight of Seller’s performance of its defense and indemnity obligations, and Seller shall not be obligated to indemnify Purchaser Indemnitees for any internal costs and expenses) incurred in connection therewith shall constitute Damagesattributed to the time spent on an indemnified matter by any of Purchaser Indemnitees.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp)
Other Limitations on Indemnification. (a) No Party shall have In all cases in determining whether there has been a breach of a representation, warranty or covenant by the Company, the Purchaser or the Seller for purposes of this Article XII, or in determining the amount of any liability pursuant to Section 7.2(a) or Section 7.3(a) above Losses with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless such breach, such representations, warranties and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties covenants shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect read without regard to any breach of materiality qualifier (including any Fundamental Representation or pursuant reference to Section 7.2(bMaterial Adverse Effect) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)contained therein.
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above Except with respect to any covenant (including Buyer’s liability to fund fraud, the Purchase Price at Purchaser acknowledges and agrees that, from and after the Closing) , the indemnification provisions of this Article XII are the Purchaser’s sole and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) exclusive remedy against the Seller for any claim with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages the breach of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementagreement hereunder.
(c) The amount of any Loss subject to indemnification under Section 12.02 or 12.03 shall be calculated net of (i) any Tax Benefit realized by the Indemnitee or its Affiliates on account of such Loss, but only to the extent such Tax Benefit is realized on or prior to the date on which the indemnification payment is made on account of such Loss, and (ii) any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnitee from any third party with respect thereto, net of any retropremiums and costs of recovery, if any. The Indemnitee shall take all commercially reasonable actions to seek full and prompt recovery under all insurance policies and any other rights, remedies or agreements covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnitor.
(d) Each of the Purchaser and the Seller acknowledges that a failure to mitigate any Losses may result in a lesser recovery pursuant to Delaware common law in a breach of contract action.
(e) Each Indemnified Party seeking No Purchaser Indemnitee shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one Loss or related group of Losses.
(f) All amounts owed to any Purchaser Indemnitee in respect of Losses indemnifiable pursuant to Section 12.02 which are satisfied out of the Indemnity Escrow Funds shall be distributed in a ratio of cash to Class A Common Stock (valued based on the 30-day volume-weighted average price per share as of the day prior to the date of determination) equal to the Indemnity Escrow Funding Ratio, and all amounts owed to any Purchaser Indemnitee in respect of Losses indemnifiable pursuant to Section 12.02 which are satisfied out of the Tax Indemnity Escrow Funds shall be distributed in a ratio of cash to Class A Common Stock (valued based on the 30-day volume-weighted average price per share as of the day prior to the date of determination) equal to the Tax Indemnity Escrow Funding Ratio. For the avoidance of doubt, in the event that (i) all cash amounts in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, have been released from the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, the Purchaser Indemnitees’ sole and exclusive source of recovery against the Seller for indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs solely with respect to breaches of the Company Indemnity Fundamental Reps) shall be against the Class A Common Stock in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, and expenses(ii) incurred all Class A Common Stock in connection therewith the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, have been released from the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, the Purchaser Indemnitees’ sole and exclusive source of recovery against the Seller for indemnification (other than solely with respect to breaches of the Company Indemnity Fundamental Reps) shall constitute Damagesbe against the cash in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, and in no event shall the Seller have any liability for any amounts due pursuant to Section 12.02 (other than solely with respect to breaches of the Company Indemnity Fundamental Reps) except to the extent of amounts available in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable.
Appears in 1 contract
Other Limitations on Indemnification. (a) No Party The amount of any Losses sustained by a Purchaser Indemnitee or a Seller Indemnitee shall have be reduced (i) by any liability pursuant to Section 7.2(aamount received by such Purchaser Indemnitee or Seller Indemnitee with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such indemnitee) or Section 7.3(afrom any other party alleged to be responsible therefor, and (ii) above by the amount of any Tax benefit actually realized with respect to the Loss. The Purchaser Indemnitees and the Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If a Purchaser Indemnitee or a Seller Indemnitee realizes a Tax benefit or receives an amount under insurance coverage or from such other party with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Article XV, then such Purchaser Indemnitee or Seller Indemnitee shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification up to such amount realized or received by Purchaser Indemnitee or Seller Indemnitee, as applicable. Nothing in this Section 15.5(a) shall limit in any way the ability of Seller, RSUI or Purchaser to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that Seller, RSUI or Purchaser determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Seller, RSUI or Purchaser, as the case may be, determines would be commercially inadvisable to pursue.
(b) With respect to Losses arising out of the breach of any representation or warranty contained herein, the Indemnifying Party shall be obligated to indemnify the Indemnified Party only for those claims for which the Indemnified Party has given the Indemnifying Party written notice within the Survival Period relating to such breached representation or warranty.
(other than any Fundamental Representationc) unless and until Each Indemnified Party shall be obligated to use its reasonable best efforts to mitigate to the aggregate fullest extent practicable the amount of all any Loss for which its it entitled to seek indemnification hereunder, and the Indemnifying Party shall not be required to make any payment to an Indemnified Party in respect of the Damages such Loss to the Buyer extent such Indemnified Parties exceeds $2,000,000 Party has failed to comply with the foregoing obligation.
(d) Upon making any indemnification payment, the “Indemnification Threshold”)Indemnifying Party will, in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of such payment, be subrogated to all rights of the excess over Indemnified Party against any third party in respect of the Indemnification Threshold. There shall be no threshold or deductible with respect Loss to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in which the aggregate, $15,000,000payment relates; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by until the Indemnified Party recovers full payment of its Loss, any and all claims of the Indemnifying Party against any such third party on account of said payment are hereby made expressly subordinated and subjected in determining Damages for purposes right of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments payment to the amounts paid Indemnified Party's rights against such third party. Without limiting the generality of any other provision hereof, each such Indemnified Party and Indemnifying Party will duly execute upon request all instruments reasonably necessary to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of evidence and perfect the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementabove described subrogation and subordination rights.
(e) Each Indemnified Party seeking indemnification hereunder Neither Seller nor Purchaser shall use commercially reasonable efforts have any right to mitigate set off any Damages that it asserts under Losses against any payments to be made by such party or parties pursuant to this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute DamagesAgreement or the Ancillary Agreements.
Appears in 1 contract
Other Limitations on Indemnification. (a) No Party shall have any liability pursuant In the event that either party makes a Claim which is determined by a court of competent jurisdiction after entry of final and unappealable decision to Section 7.2(a) be without reasonable basis in law or Section 7.3(a) above with respect to any breach of any representation or warranty (fact, such party will bear and promptly reimburse the other than any Fundamental Representation) unless party for all Expenses in investigating and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)defending against that Claim.
(b) The aggregate liability indemnification obligations of any the parties hereunder shall be limited to the obligation to make the other party whole on a dollar for dollar basis for assets lost or diminished, liabilities increased or expenses and costs actually incurred, and under no circumstances shall the Indemnifying Party pursuant to this Article 7 shall be liable for claims by the Indemnified Party that as a consequence of the breach in no event exceedquestion the Indemnified Party has incurred consequential, individually enhanced, punitive, special or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitexemplary damages.
(c) Under no circumstances To the extent that indemnity, insurance or "pass-through" warranty coverage from a seller or manufacturer or other form of recovery or reimbursement from a third party is available to Buyer or the Company to cover any item for which indemnification may be sought hereunder, Buyer will, and will cause the Company to, on a timely and expeditious basis, seek recovery under applicable contracts, insurance policies and warranties and otherwise exhaust all available remedies or causes of action to recover the maximum amount of its Claim as may be available from such other party. Seller shall be subrogated to the rights of Buyer and the Company under any Party such contract, policy or warranty, and to the extent Seller indemnifies Buyer on any Claim referred to in the previous sentence, Buyer will assign to Seller, to the fullest extent allowable, its claim against such indemnity, insurance, warranty coverage or third-party, or in the event assignment is not permissible, Seller will be liable allowed to any other Party for any indirectpursue such Claim in the name of Buyer or the Company, contingentas appropriate, consequential, unforeseen, exemplary or punitive, special Damages at Seller's expense. Seller will be entitled to retain all recoveries made as a result of any nature (including lost profits); provided, however, that any such Damages recovered action to the extent of all sums paid to Buyer by any third party Seller. Buyer will make its and the Company's books and records relating to such Claim available to Seller and make its and the Company's employees available for which a Party owes another Party an indemnity under this Agreement shall not be waivedinterviews and similar matters to assist Seller in prosecuting such claim.
(d) The Parties Any amount recoverable by Buyer from Seller under this Article XI will make appropriate adjustments be net of any actual tax benefit realized by Buyer or the Company in connection with federal, state and foreign tax deductions pertaining to the item for any insurance proceeds actually received which indemnification may be sought hereunder. To the extent the actual tax benefit realized by the Indemnified Party in determining Damages for purposes of Buyer or the Company is incurred after any recovery pursuant to this Article 7XI, there will be a corresponding adjustment between the parties without regard to the time limitations imposed under this Article XI. All indemnification payments under this Article 7 will XI shall be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementPurchase Price.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Other Limitations on Indemnification. Notwithstanding anything contained in Section 9.1, the indemnification obligations of Acquiror and Seller are subject to the following additional limitations:
(a) No Party shall have any liability pursuant to Section 7.2(aexcept (i) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer extent awarded to a Third Party (that is not an Acquiror Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), Person or an Affiliate of an Acquiror Indemnified Person) in a Third Party Claim for which case the Buyer an Acquiror Indemnified Parties shall be Person otherwise is entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above under this Article IX or (ii) Buyer’s obligations in the case of Losses for indirect, incidental or consequential damages that are the probable and reasonably foreseeable consequence of the events, actions or circumstances giving rise to Sellers pursuant to such claims and are not based on any special circumstances of the Acquiror Indemnified Persons, Seller shall not have any liability for Losses under this Article IX for any indirect, incidental, consequential, special or punitive damages, including loss of future revenue, income or profits, diminution in the value of any member of the Company Group, any of its Subsidiaries or the Equity Interests, or damages arising from changes in or interpretations of any Law, GAAP or SAP occurring after the date of this Agreement, and no Losses related thereto shall be aggregated for purposes of Section 7.3(b9.2(b) or Section 7.3(c9.2(c).;
(b) The aggregate liability the obligation of Acquiror and Seller to indemnify the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, for Losses under this Article IX shall be reduced (A) by the amount actually received by the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, pursuant to any indemnification by, or any indemnification or other agreement with, any Third Party with respect to such Losses or the underlying reasons therefor and (B) by the amount of insurance proceeds actually received by the Acquiror Indemnified Persons or the Seller Indemnified Persons from any Third Party, including insurers, with respect to such Losses or the underlying reasons therefor; provided, that the amount deemed to be recovered under any insurance policy shall be net of (i) the deductible for such policies and (ii) any increase in premium for such policies arising out of or in connection with such Loss; provided, further, that (x) no right of subrogation shall accrue or inure to the benefit of any Party source of any amounts described in this Section 9.2(b) and neither party shall, and shall cause the other Acquiror Indemnified Persons or Seller Indemnified Persons, as applicable, to not, take any action to provide that a right of subrogation shall accrue or inure to the benefit of any source of any amounts described in this Section 9.2(b), (y) the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, shall use commercially reasonable efforts to collect amounts from the sources described in clause (A) and from insurance policies of the Company Group and any of its Subsidiaries in effect as of the date of this Agreement and the New Tail Policies (provided, that, the premium for the New Tail Policies shall have been paid in full prior to the Closing Date or shall be treated as Transaction Expenses) and (z) if Seller pays to any Acquiror Indemnified Person (including through a disbursement from the Indemnification Escrow Fund) or if Acquiror pays to any Seller Indemnified Person an amount in respect of Losses and the such Persons thereafter receive from a third party a sum that is related to the matter giving rise to such Losses, then Acquiror or Seller, as applicable, shall promptly tender to the other party an amount equal to the lesser of such sum and the amount that such party paid in respect of such Losses; provided, that, notwithstanding the foregoing, the obligations set forth in this Section 9.2(b) shall in no way modify or amend the obligation of the Seller to make indemnification payments pursuant to Section 9.5 when due and any amounts subsequently received by Acquiror pursuant to this Article 7 Section 9.2(b) shall be reimbursed;
(c) The indemnification obligations of Seller under Section 9.1(a)(i) and of Acquiror under Section 9.1(b)(i) for any breach or inaccuracy of the representations and warranties in no event exceed, individually this Agreement (whether set forth in this Agreement or in any certificate delivered in connection herewith) shall survive the aggregateClosing until the eighteenth month anniversary of the Closing Date; provided, $15,000,000that (i) the indemnification obligations of Seller under Section 9.1(a)(i) and of Acquiror under Section 9.1(b)(i) for any breach or inaccuracy of the Fundamental Representations shall survive until the four year anniversary of the Closing Date and (ii) the indemnification obligations of Seller under Section 9.1(a)(i) for any breach or inaccuracy of the representations and warranties set forth in Section 3.11 (Tax Matters) shall survive until the forty-eight (48) month anniversary of the Closing; provided, further, that each party shall preserve its right to pursue a claim under Sections 9.1(a)(i) and 9.1(b)(i) with respect to a particular breach if, prior to the expiration of the applicable period, Acquiror or Seller, as applicable, delivers a notice that constitutes an Indemnification Notice, but only with respect to the content of, and on the basis set forth in, such Indemnification Notice; and
(d) All covenants or agreements of the parties set forth in Article VI shall survive the Closing until the eighteenth month anniversary of the Closing Date and all other covenants and agreements of the parties shall survive the Closing until performed; provided, however, that subject each party shall preserve its right to Section 7.5(c) belowpursue a claim under Sections 9.1(a)(ii), (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing9.1(a)(iii), 9.1(b)(ii) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a9.1(b)(iii) with respect to a particular breach or default of any Fundamental Representation and Section 7.2(b) such covenant or agreement set forth in Article VI if, prior to the date that is the eighteen month anniversary of the Closing Date, Acquiror or Seller, as applicable, delivers a notice that constitutes an Indemnification Notice, but only with respect to any covenantthe content of, shalland on the basis set forth in, in each case, be without limitsuch Indemnification Notice.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Sources: Transaction Agreement (Wellcare Health Plans, Inc.)
Other Limitations on Indemnification. (a) No Party Except with respect to Damages claimed by the Purchaser under Section 12.16 (Risk of Damage): (i) the Parties shall have any liability pursuant no right to Section 7.2(a) or Section 7.3(a) above indemnification with respect to any loss of profits or any consequential, indirect, special or punitive damages (provided, however, and for greater certainty, that such limitation does not apply to an award to a third party based on a Third Party Claim or in the event of actual fraud, intentional misrepresentation or willful breach by either Party); (ii) the Parties shall have no right to indemnification with respect to any losses to the extent that they are included in the calculation of any adjustment to the Purchase Price pursuant to Section 2.6 and (iii) MFI shall have no liability under this Agreement with respect to any matter to the extent that the expense, loss or liability comprising the Damages arising from such matter has been provided for in the Financial Statements or taken into account in calculating the Adjustment Amount.
(b) The amount which the Indemnifying Party is required to pay to, for, or on behalf of the Indemnified Party pursuant to this Article 9 shall be reduced by any Tax benefit applicable thereto actually recognized by the Indemnified Party.
(c) The Indemnified Party shall have an obligation to promptly seek to recover or make a claim for insurance proceeds or other similar amounts as a result of any matter giving rise to an indemnification claim of the Indemnified Party against the Indemnifying Party. If the Indemnified Party receives any insurance proceeds or other similar amounts as a result of the matter giving rise to any indemnification claim of the Indemnified Party prior to the date upon which the Indemnifying Party is given Notice of the claim, the Indemnifying Party’s indemnification obligation with respect to such claim shall be net of the amount of any such insurance proceeds or other similar amounts actually received by the Indemnified Party (minus the amount of any retroactive increases in premiums with respect to such insurance resulting from such claim). If the Indemnified Party receives any insurance proceeds or other similar amounts as a result of the matter giving rise to any indemnification claim of the Indemnified Party against the Indemnifying Party after the Indemnifying Party has paid such indemnification claim to the Indemnified Party, then the Indemnified Party shall promptly turn over any such insurance proceeds or other similar amounts received to the Indemnifying Party to the extent of the payments made by the Indemnifying Party to the Indemnified Party with respect to the claim (minus the amount of any retroactive increases in premiums with respect to such insurance resulting from such claim).
(d) Except in the event of actual fraud, intentional misrepresentation or willful breach by MFI and except pursuant to the other agreements attached as exhibits hereto, the sole recourse and exclusive remedy of the Parties and their respective Indemnified Parties from and after the Closing arising out of this Agreement or otherwise arising out of the Purchaser’s acquisition of the Business, whether based on tort, contract, statutory or common law remedy or equitable remedy or otherwise, including but not limited to, any misrepresentation, breach of warranty or otherwise, shall be to assert a claim for indemnification under the indemnification provisions of this Article 9, and the Purchaser and MFI each covenant that it (and the Purchaser’s Indemnified Parties and MFI’s Indemnified Parties) will not seek to obtain any remedy except as provided in this Article 9.
(e) An Indemnified Party shall take commercially reasonable steps to mitigate any Losses and shall respond to a claim or liability that may provide a basis for indemnification in the same manner (but in any event in a reasonable manner) it would respond in the absence of the indemnification provided in this Agreement. In the event that the Indemnified Party fails to make reasonable efforts to mitigate any losses, or resolve any claim or liability, the Indemnified Party shall not be indemnified to the extent that any Losses could reasonably be expected to have been avoided if the Indemnified Party had made such efforts.
(f) Each Party acknowledges and agrees that (a) prior to the Closing, other than in the case of actual fraud, intentional misrepresentation or willful breach by MFI, the sole and exclusive remedy of the Purchaser for any breach of any of the representations and warranties of MFI contained in Article 4 shall be, in the event that each of the conditions set forth in Article 6 has not been satisfied or waived, refusal to close the purchase and sale of the Purchased Assets hereunder; (b) following the Closing, (i) the indemnification provisions of this Article 9 shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement except in the case of fraud, intentional misrepresentation or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby except in the case of actual fraud, intentional misrepresentation or willful breach; and (c) following the Closing, the indemnification provisions of this Article 9 shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant (other than those covenants set forth under Section 13.1 and Section 13.2 for the enforcement of which a Party may also seek specific performance or except in the case of actual fraud, intentional misrepresentation or willful breach).
(g) MFI shall not have any indemnification obligations under Section 9.1(a) for breach of any representation or warranty (other than any Fundamental Representationcontained in Section 4.11 or under Section 9.1(e) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent Damages arise from or relate to any sampling and analysis by or on behalf of the excess over Purchaser of any environmental media subsequent to the Indemnification Threshold. There shall be no threshold or deductible with respect to Closing, except (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any in the event of actual fraud, intentional misrepresentation or willful breach of any Fundamental Representation or pursuant to Section 7.2(b) above or by MFI; (ii) Buyer’s obligations to Sellers where such sampling and analysis is required pursuant to Section 7.3(bEnvironmental Laws and is not related to any post-Closing closure of a Facility; or (iii) where such sampling and analysis is necessary to complete bona fide construction, maintenance or Section 7.3(c)expansion activities.
(bh) The aggregate liability In respect of any Party pursuant Environmental Liabilities which are the subject of indemnification obligations under Section 9.1 which require cleanup or remediation (“Remediation”) MFI shall have the right, but not the obligation, to this Article 7 conduct such Remediation. Whether MFI chooses to remediate or indemnify, MFI’s obligation shall in no event exceedbe limited to Remediation to the least stringent cleanup standards, individually or including risk assessment where permitted, that are applicable to a Real Property considering its use and use classification as of the Closing. Any Remediation that is required to satisfy MFI’s indemnification obligations shall be performed in the aggregate, $15,000,000; provided, however, most cost-effective manner and may include the recording of deed restrictions or implementation of institutional or engineering controls where such deed restrictions or controls are acceptable to Governmental Authorities for the type of Hazardous Materials that are the subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund of the Purchase Price at the Closing) Remediation and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid landlord for Leased Real Property. Where MFI chooses to Sellers pursuant remediate, MFI shall have the right to Article 2. Any liability control the Remediation in its sole discretion, acting reasonably, and MFI and the Purchaser shall enter into an agreement addressing terms for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise access, including reasonable measures to such liability constituting a breach of more than one representationminimize disruption to Purchaser, warrantyon terms and conditions acceptable to both, covenant or agreementacting reasonably.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Other Limitations on Indemnification. Portions of the exhibit, indicated by the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(a) No For purposes of computing the amount of any Losses incurred by any Indemnified Party under this Article VII for which such Indemnified Party would otherwise be entitled to receive indemnification payments under this Article VII, there shall be deducted an amount equal to any cash payments actually recovered by such Indemnified Party under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or Contract pursuant to which or under which such Indemnified Party is a party or has rights; provided that in the event any amounts recovered under insurance policies or other collateral sources are not received before any claim for indemnification is paid under this Article VII, the Indemnifying Party shall pay the full amount of the applicable Losses, and the Indemnified Party shall have the right, but not the obligation, to pursue recovery for all amounts paid in indemnification under such insurance policies; provided, further, that nothing herein shall (i) apply to any liability pursuant self-insurance or (ii) be deemed to Section 7.2(a) obligate any Indemnified Party or Section 7.3(a) above any of its Affiliates to maintain any insurance policies after the Closing Date or assert any claim, seek any recovery or take any other action against any insurance carriers or other Third Parties with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)such claim.
(b) The aggregate liability of any Each Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each caseand shall cause its respective Affiliates to, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages Loss indemnifiable hereunder to the extent required by applicable Law upon and after becoming aware of any event that it asserts under would reasonably be expected to give rise to any Loss.
(c) No Indemnified Party shall be entitled to be indemnified pursuant to this Article 7VII for any Loss that constitutes punitive or exemplary damages, but any reasonable costs and expenses (other than internal costs and expenses) incurred except to the extent actually paid to a Third Party as a result of a final, non-appealable determination in connection therewith shall constitute Damagesrespect of the applicable Third Party Claim.
Appears in 1 contract
Other Limitations on Indemnification. (ai) No Party shall have IN NO EVENT SHALL SELLER GROUP BE LIABLE TO THE BUYER INDEMNIFIED PARTIES FOR PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES AND IN NO EVENT SHALL BUYER GROUP BE LIABLE TO THE SELLER INDEMNIFIED PARTIES FOR PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES, PROVIDED, THAT THESE LIMITATIONS SHALL NOT APPLY TO (I) PUNITIVE, SPECIAL EXEMPLARY DAMAGES AND CONSEQUENTIAL PAYABLE TO A THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM OR (II) CONSEQUENTIAL DAMAGES DIRECTLY RESULTING FROM A SPECIFIC BREACH OF A PARTY'S REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER.
(ii) Anything in this Agreement to the contrary notwithstanding, no claim may be asserted nor any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any action commenced against Seller Group for breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking agreement contained herein, unless written notice of such claim or action is received by Seller, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in this Agreement irrespective of whether the subject matter of such claim or action shall have occurred before or after such date. Indemnification shall continue hereunder with respect to any matter of which a party has notified the other parties in accordance with the requirements of this Section 7.2 ----------- on or prior to the date such indemnification hereunder would otherwise terminate in accordance with this Section 7.2(a), as to which the obligation of such -------------- other party shall use commercially reasonable efforts continue until the liability of such party shall have been determined pursuant to mitigate any Damages that it asserts under this Article 7VII, but any reasonable costs and expenses (other than internal costs and expenses) incurred the Indemnitor shall have reimbursed all indemnified parties for the full amount of such Indemnifiable Damages in connection therewith shall constitute Damages.accordance with this Article VII. -----------
Appears in 1 contract
Other Limitations on Indemnification. (a1) No Party Notwithstanding any provision of this Agreement, S-A shall have not be liable to Comverge for any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to Indemnifiable Damages arising out of any breach of any representation or warranty (other than any Fundamental Representation) unless and until of which the aggregate amount of all Comverge had knowledge, as defined in this Section 7.2(g), at the time of the Damages Closing unless Comverge discloses such breach to S-A in writing prior to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”Closing. For purposes of this Section 7.2(g), in which case the Buyer Indemnified Parties Comverge shall be entitled deemed to indemnification only have "knowledge" if Comverge had actual knowledge of the untruth of such representation or warranty. In the determination of whether Comverge had such actual knowledge, each of the persons listed in Section 7.2(g) to the extent Disclosure Schedule shall be deemed to have read this Agreement, the Disclosure Schedule and Exhibits hereto and the actual knowledge of any such person shall be imputed to Comverge. It is understood that actual knowledge by Comverge of a breach of a representation or warranty by S-A shall not operate as a waiver by Comverge of the excess over obligation of S-A to satisfy the Indemnification Threshold. There conditions to Closing set forth in Section 6.2 unless the Closing shall be no threshold or deductible with respect occur.
(2) Neither indemnifying party shall have any obligation to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above indemnify the indemnified party with respect to any matter unless the indemnified party shall have taken all reasonable steps to mitigate the liabilities, losses, claims, judgments, damages, expenses and costs involved upon and after becoming aware of such matter. In no event shall the indemnifying party shall be liable for consequential, incidental or punitive damages, including lost profits.
(3) Anything in this Agreement to the contrary notwithstanding, no claim may be asserted nor any action commenced against S-A for breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementagreement contained herein, unless written notice of such claim or action is received by S-A describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in this Agreement irrespective of whether the subject matter of such claim or action shall have occurred before or after such date.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Sources: Asset Purchase Agreement (Data Systems & Software Inc)
Other Limitations on Indemnification. Notwithstanding anything herein to the contrary:
(a) No All Losses for which any Indemnified Party would otherwise be entitled to indemnification under this ARTICLE 12 shall be reduced by the amount of insurance proceeds, indemnification payments, and other Third-Party recoveries to which such Indemnified Party actually receives (less any reasonable costs and expenses, including the aggregate cost of pursuing any related insurance claims in obtaining such amounts) in respect of any Losses incurred by such Indemnified Party. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments, or any Third-Party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to this ARTICLE 12, such Indemnified Party shall have use commercially reasonable efforts to obtain, receive, or realize such proceeds, payments, or recoveries. In the event that any liability pursuant such insurance proceeds, indemnity payments, or other Third-Party recoveries are realized by an Indemnified Party subsequent to Section 7.2(areceipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments, or other Third-Party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties for such reduction in Losses for which the Indemnified Party was indemnified prior to the realization of reduction of such Losses.
(b) For purposes of this ARTICLE 12, any inaccuracy in or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such liability constituting a breach of more than one representation, representation or warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Other Limitations on Indemnification. (a) No Party The following principles, terms and limitations shall have apply to any liability pursuant to Section 7.2(a) or Section 7.3(a) above claims for indemnification with respect to any Seller-Indemnified On-Site Environmental Liabilities or related claims for breach of the representations set forth in Section 2.15:
(i) If the cost of investigation or remediation of actual or alleged contamination of the Business Real Properties, or the cost of correcting a non-compliance with Environmental Law that is subject to indemnity, is increased due to the actions or omissions by or on behalf of any representation or warranty (Person other than Seller, its Affiliates, their respective Representatives or any Fundamental Representation) unless and until the aggregate amount Person for which or whom Seller or any of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”)its Affiliates or Representatives is responsible, in which case the Buyer Indemnified Parties Seller shall not be entitled to indemnification only responsible to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or such increase in costs incurred.
(ii) Buyer’s obligations Seller shall only be obligated to Sellers pursuant indemnify Purchaser Indemnitees for fines or penalties arising out of actual or alleged noncompliance with Environmental Laws accruing during the period prior to Section 7.3(b) the Closing Date or Section 7.3(c).
(b) The aggregate liability of any Party pursuant for expenditures made or actions taken by Purchaser Indemnitees to this Article 7 achieve compliance with applicable Environmental Laws, to the extent the operations at the Business Real Property were not in compliance on the Closing Date, and shall in no event exceedbe liable (A) for any Losses arising out of any expenditures made or actions taken by any Purchaser Indemnitee to maintain compliance with applicable Environmental Laws based on circumstances arising after the Closing Date; (B) for expenditures that are not commercially reasonable, individually taking into account the obligation to come into compliance with applicable Environmental Law or, subject to the express written consent of Seller at Seller’s sole discretion, improve the Business Real Property in a manner that goes beyond what is required to bring said assets into compliance with applicable Environmental Law for the purpose of providing an economic benefit to a Purchaser Indemnitee; or (C) for operating costs relating to the ongoing operation of the Business at the Business Real Property, provided, for purposes of clarification, that this limitation does not apply to the costs incurred to correct the noncompliance that is the subject to indemnification hereunder.
(iii) Seller shall not be responsible for any Losses, including costs of investigation and remediation of properties impacted by Hazardous Materials, to the extent such Losses are incurred due to (A) actions that are not required by applicable Environmental Law or any demand, claim, action, suit, directive or order of a Governmental Authority or any third party, unless such actions are undertaken with the express written consent of Seller at Seller’s sole discretion; (B) any change in Environmental Laws or written interpretation thereof by the applicable Governmental Authority, in either case, after the Closing Date; (C) the closure of any Business Real Property after the Closing Date; (D) any change in the aggregateuse of the Business Real Property after the Closing Date that would trigger investigation or remediation obligations or would result in the imposition of a more stringent remediation standard; or (E) any investigation or remediation that is conducted to achieve compliance in excess of the least stringent applicable remediation standard, $15,000,000; providedconsistent with the manufacturing operations at the Business Real Property in effect as of the Closing Date. Seller shall not be liable for any operating costs associated with post-remedial monitoring (excluding such monitoring that is implemented to verify that a remedial activity has achieved compliance with applicable remediation standards, howeverprior to entering into a long-term post- remedial phase) and operations and maintenance after completion of a remediation of any environmental media. To the extent necessary to implement the foregoing, Purchaser Indemnitees shall agree to appropriate deed restrictions and engineering controls that subject prohibit uses of the property that are inconsistent with the least stringent remediation standard and limit exposure to Section 7.5(ccontaminants that are allowed to remain in place.
(iv) belowSeller shall not be responsible for costs for investigation, remediation, corrective actions or other Losses arising out of or related to any investigation of soil or groundwater that any Purchaser Indemnitee voluntarily initiates, performs or causes to be performed by any Person or Governmental Authority, if such investigation is not required by any Environmental Law or demanded or required by a Governmental Authority, or is not a prudent response (awithout consideration of the indemnity provided hereunder) Buyer’s liability to a demand or claim by a third party.
(v) Seller shall not be responsible for any Losses arising as a result of any matter as to which a Purchaser Indemnitee has initiated contact with a Governmental Authority if the principal, but not necessarily exclusive, reason for the contact is to identify, enhance or accelerate a claim for indemnification pursuant to Section 7.3(bthis Agreement.
(vi) above If any Purchaser or Affiliate of Purchaser sells any Business Real Property and the right of Purchaser Indemnitees to indemnification with respect to On- Site Environmental Liabilities has not terminated in accordance with the terms of this Section 9.5 or Section 9.2(a)(i)(A) for breach of the representations set forth in Section 2.15, Purchaser shall or shall cause said Affiliate to include Section 9.5(d)(iii) or equivalent language in the purchase and sale agreement and shall indemnify, defend and hold harmless Seller Indemnitees for any covenant (including Buyer’s liability Losses incurred by Seller Indemnitees due to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant failure to Section 7.2(a) comply with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitthis obligation.
(cvii) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement Seller shall not be waived.
(d) The Parties will make appropriate adjustments obligated to indemnify Purchaser Indemnitees for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than associated with Purchaser Indemnitees’ oversight of Seller’s performance of its defense and indemnity obligations, and Seller shall not be obligated to indemnify Purchaser Indemnitees for any internal costs and expenses) incurred in connection therewith shall constitute Damagesattributed to the time spent on an indemnified matter by any of Purchaser Indemnitees.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement
Other Limitations on Indemnification. Notwithstanding anything herein to the contrary, except in the case of Fraud:
(a) No All Losses for which any Indemnified Party shall have any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall would otherwise be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There under this Article 10 shall be no threshold or deductible with reduced by the amount of insurance proceeds, indemnification payments and other Third Party recoveries actually received by any Indemnified Party in respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect of any Losses incurred by such Indemnified Party. In the event any Indemnified Party is entitled to any breach insurance proceeds, indemnity payments or any Third Party recoveries in respect of any Fundamental Representation or pursuant Losses for which such Indemnified Party is entitled to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party indemnification pursuant to this Article 7 shall in no event exceed10, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate obtain, receive or realize such proceeds, benefits, payments or recoveries. In the event that any Damages that it asserts such insurance proceeds, indemnity payments or other Third Party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other Third Party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment previously received.
(b) No claim for misrepresentation or breach of warranty shall be made by any Purchaser Claiming Party if such fact or event was disclosed in this Agreement or, in accordance with and subject to Section 11.16, in the Seller Disclosure Letter.
(c) No Purchaser Claiming Party or Seller Claiming Party shall be entitled to be compensated more than once, under this Article 7any of the Transaction Documents, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damagesfor the same Loss.
Appears in 1 contract
Other Limitations on Indemnification. (a) No In the event that any Indemnified Party shall have any liability pursuant makes a Claim which is finally determined to Section 7.2(a) be without reasonable basis in law or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless fact, such Indemnified Party will bear and until promptly reimburse the aggregate amount of Indemnifying Party for all of expenses and losses in investigating and defending against the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)Claim.
(b) The aggregate liability indemnification obligations of the Indemnifying Party hereunder shall be limited to the obligation to make the Indemnified Party whole on a dollar for dollar basis for assets lost or diminished, liabilities increased or expenses and costs actually incurred, and under no circumstances shall the Indemnifying Party be liable for claims by the Indemnified Parties that as a consequence of a breach in question any Indemnified Party pursuant has incurred, for its own account, consequential, enhanced, punitive, special or exemplary damages (it being understood that the Indemnifying Party shall be liable for consequential, enhanced, punitive, special or exemplary damages payable by any Indemnified Party to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitanother party).
(c) Under no circumstances shall The amount of any Party be liable to any other Party Indemnifying Party’s liability under the Agreement for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of shall be determined taking into account any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any applicable insurance proceeds actually or proceeds from applicable “pass-through” warranty coverage received or reasonably expected to be received by the Indemnified Party in determining Damages for purposes respect of this Article 7such Damages. All indemnification payments under this Article 7 will IX shall be deemed to be adjustments to the amounts paid Purchase Price.
(d) Notwithstanding any provision hereof to Sellers the contrary, no Claim may be asserted for the breach of any representation or warranty contained in this Agreement after the Termination Date; provided, that this Section 9.5(d) shall not limit the ability of any Indemnified Party to recover for any Claim relating to the breach of any such representation or warranty asserted prior to the Termination Date and provided further that this Section 9.5(d) shall not be a limitation on the time when a Claim covered by both clause (i) of Section 9.2(a) and another clause of Section 9.2(a) or by both clause (i) of 9.2(b) or another clause of 9.2(b), as the case may be, may be asserted. In addition, any Claim made by any party following the Closing pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise made pursuant to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute DamagesIX.
Appears in 1 contract
Other Limitations on Indemnification. (a) No Party The amount of any Losses sustained by a Parent Indemnitee or a Stockholder Indemnitee shall have be reduced by any liability pursuant amount actually received by such Parent Indemnitee or Stockholder Indemnitee (net of any costs of such recovery out-of pocket prosecution costs and similar costs) with respect thereto under any insurance coverage relating thereto. The Parent Indemnitee and the Stockholder Indemnitees shall use commercially reasonable efforts to Section 7.2(a) collect any amounts available under such insurance coverage. If a Parent Indemnitee or Section 7.3(a) above a Stockholder Indemnitee actually receives an amount under insurance coverage or from a third party with respect to Losses sustained at any breach time subsequent to such Indemnitee’s receipt of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer provided pursuant to Section 7.2(a) above this Article VIII, then such Parent Indemnitee or Stockholder Indemnitee, as applicable, shall promptly reimburse the applicable Indemnifying Party for any payment made by such Indemnifying Party in connection with respect providing such indemnification up to any breach of any Fundamental Representation such amount realized or pursuant to Section 7.2(b) above received by the Parent Indemnitee or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)the Stockholder Indemnitee, as applicable.
(b) The aggregate liability Indemnification payments under this Article VIII shall be paid by the Indemnifying Party without reduction for any Tax Benefits available to the Indemnified Party. However, to the extent that the Indemnified Party recognizes Tax Benefits as a result of any Losses, the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment or payments actually received from the Indemnifying Party with respect to such Losses) to the Indemnifying Party as such Tax Benefits are actually recognized by the Indemnified Party. For this purpose the Indemnified Party shall be deemed to recognize a tax benefit (“Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable period, calculated by excluding any Tax items attributable to the Losses from all taxable periods, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable period, calculated by taking into account any Tax items attributable to the Losses for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year). The Stockholders, the Company, and Parent agree to treat any payment made pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject VIII as an adjustment to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) for federal, state and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitlocal income tax purposes.
(c) Under In no circumstances event shall any Party party hereto be liable for consequential, indirect, treble or punitive damages, Losses based on either the reduced current or future profitability or earnings of the Company or Losses based on a multiple of such profitability, earnings or other factor, or reduction therein (it being understood that all Losses shall for purposes of this Article VIII be determined and calculated on a direct, dollar-for-dollar basis), or other Losses not provided for in this Article VIII, other than any such Losses actually finally determined by a court of competent jurisdiction to be owed by a Parent Indemnitee or Stockholder Indemnitee, as the case may be, to any other unaffiliated Third Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waivedClaimant.
(d) The Parties will make appropriate adjustments for With respect to Losses arising out of the breach of any insurance proceeds actually received by representation, warranty, covenant or agreement contained herein, the Indemnifying Party shall be obligated to indemnify the Indemnified Party in determining Damages only for purposes of this Article 7. All those claims for which the Indemnified Party has given the Indemnifying Party written notice within the Applicable Survival Period relating to such breach.
(e) The Indemnified Party shall be obligated to use its commercially reasonable efforts to mitigate any and all Losses arising out of, resulting from or relating to any matter for which such party is entitled to indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. hereto.
(f) Any liability for indemnification under this Agreement Article VIII shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract
Sources: Merger Agreement (Sbarro Inc)
Other Limitations on Indemnification. (a) No Party shall have any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages Notwithstanding anything to the contrary contained in this Agreement, no Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties Person shall be entitled to indemnification only under Article V or IX for any Losses to the extent that such Losses (a) relate to any action taken by the Buyer or any of its Affiliates or representatives in breach of this Agreement or (b) are reflected as a liability of the excess over Business on the Indemnification ThresholdFinal Statement. There Notwithstanding anything to the contrary contained in this Agreement, no Seller Parent Indemnified Person shall be no threshold entitled to indemnification under Article V or deductible with respect IX for any Losses to the extent that such Losses (ia) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect relate to any action taken by Seller Parent or any of its Affiliates or representatives in breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)this Agreement.
(b) The aggregate liability Buyer shall (or shall cause the named insured under the R&W Policy to), on behalf of the applicable Buyer Indemnified Person(s), first seek recovery for any Party portion of Losses that would otherwise constitute indemnifiable Losses pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, IX and that are subject to Section 7.5(ccoverage under R&W Policy (“Covered Losses”). With respect to indemnifiable Losses arising under Sections 9.1(a)(i), 9.1(a)(iii), 9.1(a)(iv) belowor 9.7, (aSeller Parent shall have no obligation to indemnify any Buyer Indemnified Person for those Covered Losses that are actually recovered by the applicable Buyer Indemnified Person(s) Buyer’s liability from the R&W Policy, and any claim for indemnity pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(aSections 9.1(a)(i) with respect to any Fundamental Representation Covered Losses shall be held in abeyance pending the full and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages final resolution of any nature (including lost profits); providedapplicable claim under the R&W Policy. Except as set forth in the immediately preceding sentence, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity Buyer Indemnified Person(s) shall be entitled to pursue all rights and remedies available to them under this Agreement shall not be waived.
concurrently with seeking recovery under the R&W Policy, subject to the obligations of Buyer Indemnified Persons pursuant to all other provisions of this Article IX (d) The Parties will make appropriate adjustments for expressly including, without limitation, the obligation to refund any insurance proceeds actually subsequently received by pursuant to Section 9.4(a)). Notwithstanding anything to the Indemnified Party contrary in determining Damages for purposes this Agreement, if the R&W Policy is not procured and issued in accordance with Section 5.23 of this Article 7. All indemnification payments under Agreement, then this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement Section 9.9(b) shall not apply and shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementno force and effect.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
Appears in 1 contract