Limitations on Indemnity. No indemnity shall be paid by the Company:
(a) on account of any claim against Employee solely for an accounting of profits made from the purchase or sale by Employee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(b) on account of Employee’s conduct that is established by a final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Employee’s conduct that is established by a final judgment as constituting a breach of Employee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Employee was not legally entitled;
(d) for which payment is actually made to Employee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, bylaw or agreement, except in respect of any excess beyond payment under such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect, both the Company and Employee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof) initiated by Employee, or any proceeding by Employee against the Company or its directors, officers, Employees or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board of directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the NYCRR, or (iv) the proceeding is initiated pursuant to Section 9 hereof.
Limitations on Indemnity. No Buyer Indemnified Party shall seek, or be entitled to, indemnification from any of the Indemnifying Parties pursuant to Section 11.2(a) to the extent the aggregate claims for Damages of the Buyer Indemnified Parties are less than Five Hundred Thousand Dollars ($500,000) (the “Threshold”) or exceed an amount equal to Five Million Dollars ($5,000,000) (the “Cap”); provided, that, if the aggregate of all claims for Damages equals or exceeds the Threshold, then Buyer shall be entitled to recover for Damages subject to the limitations in this Section 11.6 only to the extent such Damages exceed the Threshold. In calculating the amount of any Damages payable to a Buyer Indemnified Party or a Sellers Indemnified Party hereunder, the amount of the Damages (i) shall not be duplicative of any other Damage for which an indemnification claim has been made and (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Damages (net of any costs and expenses incurred in obtaining such insurance proceeds). If an Indemnifying Party pays an Indemnified Party for a claim and subsequently insurance proceeds in respect of such claim is collected by the Indemnified Parties, then the Indemnified Party promptly shall remit the insurance proceeds (net of any costs and expenses incurred in obtaining such insurance proceeds) to Indemnifying Party. The Indemnified Parties shall use commercially reasonable efforts to obtain from any applicable insurance company any insurance proceeds in respect of any claim for which the Indemnified Parties seek indemnification under this Article XI. Notwithstanding anything to the contrary herein, if the Buyer Indemnified Parties are seeking, or are entitled to seek, indemnification from any of the Indemnifying Parties for Damages due to (i) the Partnership’s or Sellers’ fraud or willful misconduct, or (ii) the Excluded Liabilities or Excluded Assets, the Cap and the Threshold shall not be applicable to, or otherwise limit a Buyer Indemnified Party’s recovery for, such claim.
Limitations on Indemnity. (a) Other than in respect of a claim for indemnification based on fraud on the part of any Indemnifying Party hereto, for which there shall be no limitations on the amount of Losses recoverable through the indemnification provisions hereunder, no Indemnified Party shall seek, or be entitled to seek or obtain, indemnification from the Indemnifying Parties, for any amounts, in the aggregate, in excess of the sum of (x) the Closing ACE Purchase Price plus (y) cash amounts paid by Buyer to ACE Hi following the Closing pursuant to Section 9.16 (Real Property Tax Refund), Section 9.19(b) (Tax Refunds), and Section 9.24 (City-Wide Progressives Refund) hereof (collectively, (x) and (y) are referred to as the “ACE Hi Cap”) plus (z) the AREH Purchase Price; provided, however, that:
(i) no Indemnified Party shall seek, or be entitled to seek or obtain, indemnification from AREH pursuant to Section 12.2(b)(vi) hereof for any amount, in the aggregate, in excess of One Hundred Thirty-Five Million Dollars ($135,000,000);
(ii) no Indemnified Party shall seek, or be entitled to seek or obtain, indemnification from ACE Hi pursuant to Section 12.2(a) or Section 12.3(a) hereof for any amount, in the aggregate, in excess of the ACE Hi Cap;
(iii) no Indemnified Party shall seek, or be entitled to seek or obtain, indemnification from the Indemnifying Parties pursuant to Section 12.2(a)(i) or Section 12.2(b)(i) hereof until the aggregate amount of Losses arising under such Sections, taken together, exceed Five Hundred Thousand Dollars ($500,000) (the “Indemnification Floor”); provided, however, that if the aggregate amount of such Losses arising under Section 12.2(a)(i) and Section 12.2(b)(i) hereof exceed the amount of the Indemnification Floor, the Indemnified Parties shall only be entitled to seek indemnification from the Indemnifying Parties for the amount of such Losses in excess of the Indemnification Floor; and
(iv) to the extent that any matter is indemnified by both ACE Hi and AREH pursuant to this ARTICLE XII, the Indemnified Parties shall not be entitled to collect twice.
(b) In calculating the amount of any Losses payable to an Indemnified Party hereunder, the amount of the Losses (i) shall not be duplicative of any adjustments to the Purchase Price pursuant to ARTICLE II hereof, (ii) shall not be duplicative of any other Losses for which an indemnification claim has been made and (iii) shall be computed net of any amounts actually recovered by such Indemnified Party ...
Limitations on Indemnity. The Bank shall not be liable under this Agreement to make any payment to the Director to the extent that the Director has already been reimbursed pursuant to such liability insurance as the Bank may maintain for the Director’s benefit. Notwithstanding the availability of such insurance, the Director also may claim indemnification from the Bank pursuant to this Agreement by assigning to the Bank any claims under such insurance to the extent the Director is paid by the Bank. The Director shall reimburse the Bank for any sums he or she receives as indemnification from other sources to the extent of any amount paid to the Director for that purpose by the Bank. In addition to the foregoing limitation, except as otherwise expressly provided in this Agreement, in connection with all or any part of a Proceeding that is initiated or maintained by or on behalf of the Director, or any Proceeding by the Director against the Bank or any of its Agents, the Bank shall not be liable under this Agreement to make any payment to the Director in connection with any such Proceeding, unless such Proceeding is expressly required to be made under applicable law, was authorized by a majority of the Disinterested Directors or is provided by the Bank, in its sole discretion, pursuant to the powers vested in the Bank under applicable law.
Limitations on Indemnity. No indemnity pursuant to Section 2 hereof shall be paid by the Corporation:
(a) except to the extent the aggregate of losses to be indemnified hereunder exceed the amount of such losses for which the Indemnitee is indemnified either pursuant to Section 2 hereof or pursuant to any D&O Insurance purchased and maintained by the Corporation;
(b) in respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(c) on account of any suit in which judgment is rendered against an Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law;
(d) on account of Indemnitee’s act or omission being finally adjudged to have involved an act or omission undertaken with deliberate intent to cause injury to the Corporation or undertaken with reckless disregard for the best interests of the Corporation; or
(e) if a final decision by a Court having jurisdiction in the matter shall determine that such indemnification is not lawful.
Limitations on Indemnity. (a) No indemnification pursuant to Section 3 or Section 4 hereof shall be paid by the Company:
(i) on account of remuneration paid to Indemnitee if it shall be determined by a Final Judgment that such remuneration was in violation of law;
(ii) on account of any suit in which a Final Judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; or
(iii) if a Final Judgment establishes that such indemnification is not lawful.
(b) The Company’s indemnification obligations under this Agreement shall be reduced to the extent payment is made to or for the benefit of Indemnitee pursuant to any D&O Insurance purchased and maintained by the Company.
(c) To the extent Indemnitee’s claim for indemnification under this Agreement arises out of Indemnitee’s service at the request of the Company as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, the Company’s indemnification obligation hereunder shall be limited to that amount required in excess of any indemnification and/or insurance provided to Indemnitee by such other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise. Indemnitee hereby also agrees that any indemnification obligation of the Company under the Company’s certificate of incorporation or by-laws with respect to such a claim shall also be subject to this limitation.
Limitations on Indemnity. No amounts of Indemnity pursuant to Section 2 or 3 hereof shall be paid by the Corporation:
(a) except to the extent that the aggregate of Litigation Costs and Losses in any Proceeding or group of related Proceedings to be indemnified hereunder exceeds the amount of Litigation Costs and Losses for which the Indemnified Party actually receives indemnification payments or on whose behalf indemnification payments are made pursuant to any D&O Insurance policy or from any other source;
(b) on account of any payments required to be paid by an Indemnified Party as a result of any Proceeding in which a final, non-appealable judgment is rendered against Indemnified Party for an accounting or disgorgement of profits made from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Exchange Act;
(c) on account of Indemnified Party's conduct which is finally adjudged in any Proceeding to have been knowingly fraudulent, deliberately dishonest or an act or omission involving willful misconduct; or
(d) if a final non-appealable decision by a court having jurisdiction over the parties and the subject matter shall determine that such indemnification is not lawful.
Limitations on Indemnity. 3.1 The Company shall not be obligated under this Agreement to make any payment of Expenses to the Indemnitee:
(a) which payment it is prohibited by applicable law from paying as indemnity;
(b) for which payment is actually made to the Indemnitee under an insurance policy, except in respect of any excess beyond the amount of payment under such insurance;
(c) for which payment the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement and for which payment has actually been made by the Indemnitee;
(d) resulting from a claim decided in a Proceeding adversely to the Indemnitee based upon or attributable to (x) the Indemnitee gaining in fact any personal profit or advantage to which he was not legally entitled or (y) the fraud or dishonesty of the Indemnitee seeking payment hereunder; however, notwithstanding the foregoing, the Indemnitee shall be indemnified under this Agreement as to any claims upon which suit may be brought against him by reason of any alleged dishonesty on his part, unless it shall be decided in a Proceeding that he committed (i) acts of active and deliberate dishonesty, (ii) with actual dishonest purpose and intent, and (iii) which acts were material to the cause of action so adjudicated.
3.2 For purposes of Sections 3 and 4, the phrase “decided in a Proceeding” shall mean a decision by a court, arbitrator(s), hearing officer or other judicial agent having the requisite legal authority to make such a decision, which decision has become final and from which no appeal or other review proceeding is permissible.
Limitations on Indemnity. (a) None of the Buyer Indemnified Parties shall be entitled to assert any right to indemnification under Section 7.1(a) until (i) each individual amount of Losses otherwise due the Buyer Indemnified Parties exceeds $250,000 (the "DE MINIMIS AMOUNT") (PROVIDED, that (X) the term "individual amount of Losses" shall mean each individual breach of a particular warranty and not the aggregation of individual breaches of a particular warranty into a single breach (e.g., if Seller failed to disclose five contracts under a particular warranty, and the failure to disclose any one of those contracts would be a breach, then the five contracts together would be considered multiple breaches, of which each such undisclosed contract would be an "individual amount of Loss") and (Y) for purposes of the calculation of the Loss with respect to such individual breach, a series of separate Losses caused by or resulting from the same individual breach shall be aggregated (e.g., if an individual breach causes or results in two separate Losses of $200,000 each, such Losses shall be aggregated to a sum of $400,000 for purposes of determining whether the "Loss" with respect to such individual amount is less than $250,000)) and (ii) the aggregate amount of all the Losses actually suffered by the Buyer Indemnified Parties exceeds 3.0% of the Purchase Price (the "DEDUCTIBLE AMOUNT"), and then only to the extent such Losses exceed, in the aggregate, the Deductible Amount. For the avoidance of doubt, indemnification for Losses arising from breaches of any of Sections 2.7(a)(v), 2.21(b)(xxi)-(xxiv) and 2.22(1)-(n) shall not be subject to either the De Minimis Amount or to the Deductible Amount, and all such Losses shall be indemnified beginning with the first dollar of Loss. Anything in this Agreement to the contrary notwithstanding, in no event shall Seller or GAC be required to indemnify Parent, Buyer, any Acquired Company or the Buyer Indemnified Parties for Losses pursuant to Section 7.1(a) in any amount exceeding 65% of the Purchase Price (the "CAP"); PROVIDED, that the Cap shall not apply to Seller's and GAC's requirement to indemnify Parent, Buyer, any Acquired Company or the Buyer Indemnified Parties for Losses pursuant to Section 7.1(a) with respect to a breach of the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.7(a)(v), 2.21(b)(xxi)-(xxiv) or 2.22(l)-(n), and any indemnified Losses in respect of such representations and warranties shall not count against...
Limitations on Indemnity. No indemnity pursuant to this Agreement shall be made by the Corporation:
(a) For the amount of such losses for which the Indemnified Party is indemnified pursuant to any insurance purchased and maintained by the Corporation; or
(b) In respect to remuneration paid to Indemnified Party if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or
(c) On account of any suit in which judgment is rendered against Indemnified Party for an accounting of profits made (i) for an improper personal profit without full and fair disclosure to the Corporation of all material conflicts of interest and not approved thereof by a majority of the disinterested members of the Board of Directors of the Corporation; or (ii) from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local law; or
(d) On account of Indemnified Party's conduct which is finally determined to have been knowingly fraudulent, deliberately dishonest or willfully in violation of applicable law for which the corporation suffered actual financial damages; or
(e) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful.
