Calculation of Damages. (i) For the purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be calculated (A) net of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds). (ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement. (iii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3. (iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 2 contracts
Sources: Purchase Agreement (Postmedia Network Canada Corp.), Purchase Agreement (Postmedia Network Canada Corp.)
Calculation of Damages. (ia) For the purposes of this Article 8, the The amount of any Damages incurred or suffered payable under Section 10.2 by any Indemnified the Indemnifying Party shall be calculated (A) net of any amount actually amounts recovered by such the Indemnified Party under applicable insurance policies or from a any other Person alleged to be responsible therefor. Parent shall, and shall cause the Company to, use Reasonable Efforts to collect any amounts available under such Third-Party insurance coverage and from any third party Person reasonably believed by the Company to be alleged to have responsibility. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for such any Damages (which were not earlier taken into account in calculating Damages), less subsequent to an indemnification payment by the costs and expenses Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred to obtain such recovery; and by the Indemnifying Party (B) net of any third party costs of recovery on such Indemnified Party with respect to such insurance proceeds policies or other applicable Person) in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party.
(b) The Indemnifying Party shall not be liable under Section 10.2(a) or 10.2(b) for any (i) punitive, remote, or speculative Damages, whether based on contract, strict liability, other Applicable Law or otherwise and whether or not arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault, in each case, except to the extent any such Damages are included in any action by a third party against the Indemnified Party for which such Indemnified Party is entitled to indemnification hereunder or (ii) indirect, special, or consequential Damages that were not reasonably foreseeable, whether based on contract, strict liability, other Applicable Law or otherwise and whether or not arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault.
(c) The Indemnified Party must use Reasonable Efforts to mitigate to the extent required by Applicable Law any loss for such Damages which the Indemnified Party seeks indemnification under this Agreement; provided, however that any insurance policy, (excluding self-insurance arrangements) less the costs and or expenses incurred by such Indemnified Party relating to collect the use of such Reasonable Efforts shall be included in calculating Damages associated with any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)applicable claim for indemnification.
(iid) Any Indemnified Party Neither Company nor the Company Member Interest Holders shall not be entitled have any obligation to double recovery for indemnify Parent or its Affiliates pursuant to Section 10.2 with respect to any Damages even though or alleged Damages that were included in the Damages may have resulted from determination of Working Capital or any other adjustment to the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this AgreementBase Merger Consideration.
(iiie) The Purchaser Indemnified Parties Any indemnity payment under this Agreement shall not be entitled to indemnification for any Damages relating to any matter treated as an adjustment to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3Base Merger Consideration for Tax purposes.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Western Gas Partners LP)
Calculation of Damages. (a) The amount of any Damages payable under Section 9 by the Indemnifying Party shall be net of any (i) For amounts recovered by the purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall under applicable insurance policies or from any other person alleged to be calculated responsible therefor, and (Aii) net tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any amount actually recovered by such Damages. If the Indemnified Party receives any amounts under applicable insurance policies, or from a third party any other person alleged to be responsible for such any Damages, less subsequent to an indemnification payment by the costs and expenses Indemnifying Party, then such Indemnified Party shall promptly reimburse such Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to obtain such recovery; and (B) net of any third party insurance proceeds actually the amount received by such Indemnified Party for such Damages under Party, net of any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any in collecting such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)amount.
(iib) Any Indemnified The Indemnifying Party shall not be entitled to double recovery liable under Section 9 for any Damages even though the Damages may have resulted from the breach (i) consequential or punitive Damages, other than consequential or punitive damages assessed in favor of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraudagainst an Indemnified Party, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable (ii) Damages for lost profits resulting from an alleged breach or diminution in value.
(c) Each Indemnified Party shall use reasonable efforts to mitigate any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss and in doing so recovers any amounts, the Indemnified Party shall notify the Indemnifying Party and pay to the Indemnifying Party such amounts (less the Indemnified Party's actual costs of mitigation) as promptly as practicable after the benefit is received and such amounts shall be deemed not to have been paid to such Indemnified Party under any indemnification provision of this Agreement, even if .
(d) Each Indemnified Party shall use reasonable efforts to collect any amounts available under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraudinsurance coverage, or fraudulent or intentional misrepresentationfrom any other person alleged to be responsible, for any Damages payable under Section 9.
Appears in 2 contracts
Sources: Asset Sale Agreement (Pioneer Financial Services Inc), Asset Sale Agreement (Pioneer Financial Services Inc)
Calculation of Damages. (a) The amount of any Damages payable under Section 7.02(a) or 7.03(a), as applicable, by the Indemnifying Party shall be decreased by any (i) For the purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be calculated (A) net of any amount amounts actually recovered by such the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party (in cash or as a third party reduction in Taxes otherwise due) arising from the incurrence or payment of such Damages. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, after the Indemnifying Party makes an indemnification payment in respect of such Damages, less then the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party shall promptly (and in any event within 10 Business Days) reimburse the Indemnifying Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)Party.
(iib) Any Indemnified The Indemnifying Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representationsliable under Section 7.02(a) or 7.03(a), warrantiesas applicable, agreements and covenants made by the Indemnifying Party in this Agreement.
(iii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount Indemnified Party or any of its Affiliates has recovered for such Damages is specifically and identifiably reflected as a Current Liability in the calculation under another provision of this Agreement or any of the Final Closing Working Capital pursuant to Section 2.3other Transaction Documents.
(ivc) In no event Each Indemnified Party shall use its respective Commercially Reasonable Efforts to mitigate in accordance with applicable Law any Damages for which such Indemnified Party may seek indemnification under this Agreement; provided that any Damages incurred by an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third efforts to mitigate any Damages pursuant to this Section 7.06 shall constitute Damages incurred by such Indemnified Party Claim or except in connection with for which such Indemnified Party shall be indemnified pursuant to this Article 7.
(d) Each Indemnified Party shall use Commercially Reasonable Efforts to collect any fraudamounts available under applicable insurance policies, or fraudulent from any other Person alleged to be responsible, for or intentional misrepresentation. In no event shall with respect to any Damages payable by the Seller be liable for lost profits resulting from an alleged breach of this AgreementIndemnifying Party under Section 7.02(a) or 7.03(a), even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationas applicable.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Calculation of Damages. Notwithstanding anything to the contrary herein:
(a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness.
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) For an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the purposes of this Article 8case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or suffered exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof;
(ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation.
(c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller).
(d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage.
(e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be calculated (A) net entitled to recover the same Damages in respect of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible claim for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)indemnification.
(f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) Any Indemnified Party the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not be entitled apply to double recovery for any Damages even though the Damages may have resulted from representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the breach first sentence of more than one of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreementdefined term “Material Contract”.
(iiig) The Purchaser Indemnified Parties If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to ▇▇▇ for damages or to assert any Damages other right or remedy arising from any matters relating to any matter such condition or breach, notwithstanding anything to the extent (but only contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the extent) that fullest extent permitted under applicable Law the amount remedy of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3rescission.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Calculation of Damages. (i) For the purposes The amount of any Damages payable under Article 10 of this Article 8, Agreement by the amount of Damages incurred or suffered by any Indemnified Indemnifying Party shall be calculated (Aa) net of any amount actually amounts recovered by such the Indemnified Party under applicable insurance policies (other than any amounts recovered under the R&W Policy) or from a third party any other Person, pursuant to indemnity, contribution or similar agreements with respect to such Damages, alleged to be responsible for such Damages, less which recoveries the costs and expenses incurred Indemnified Party agrees to use reasonable efforts to obtain (taking into account the effort necessary to pursue such recovery; recovery and any adverse consequences resulting, or reasonably expected to result, from such pursuit to such Indemnified Party), (b) reduced by refund, current reduction or reduction within two (2) years following the year the applicable Damages were paid in cash Taxes payable by the Indemnified Party as a result of such Damages, and (Bc) net reduced to the extent that the amount of such Damages was reflected in the calculation of Closing Working Capital. If the Indemnified Party receives any third party amounts under applicable insurance proceeds actually policies or from any other Person, pursuant to indemnity, contribution or similar agreements with respect to such Damages, alleged to be responsible for any Damages, as a refund or current reduction in cash Taxes payable, or through the calculation of Closing Working Capital, in each case subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made to such Indemnified Party by the Indemnifying Party in connection with providing such indemnification payment up to the amount received by such Indemnified Party for such Damages under Party, net of any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any in collecting such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)amount.
(ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 2 contracts
Sources: Merger Agreement (Actua Corp), Merger Agreement (Envestnet, Inc.)
Calculation of Damages. (ia) For The amount of any Damages payable under Article 8 or 9 or Section 11.02 by the purposes Indemnifying Party shall be net of this Article 8, any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies and any Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages. In computing the amount of Damages incurred or suffered by any such Tax Benefit, the Indemnified Party shall be calculated (A) net deemed fully to utilize, at the highest marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such indemnified Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(iib) Any Indemnified The Indemnifying Party shall not be entitled to double recovery liable under Article 8 or 9 or Section 11.02 for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iiii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent that (but only A) there is included in the April 30 Balance Sheet a specific liability or reserve relating to such matter or the Indemnified Party has otherwise been compensated for such matter pursuant to the extent) that the amount of such Purchase Price adjustment under Section 2.05, consequential Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable Damages for lost profits resulting from an alleged breach profits. For the purposes of this Agreement, even if under Applicable Law, such lost profits would Damages shall not be considered consequential determined through any multiple of earnings approach or special damages, except variant thereof and shall take account of the time value of money.
(c) Notwithstanding any other provision of this Agreement to the extent damages for contrary, if on the Closing Date the Indemnified Party knows of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate, the Indemnified Party shall have no right or remedy after the Closing with respect to such lost profits are awarded inaccuracy and shall be deemed to a third party have waived its rights to indemnification in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationrespect thereof.
Appears in 1 contract
Sources: Purchase Agreement (Rj Reynolds Tobacco Holdings Inc)
Calculation of Damages. (ia) For the purposes of this Article 8, the amount of Damages incurred or suffered by any Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage for any Damages payable under Section 7.02. The amount of any Damages payable under Section 7.02 by the Indemnifying Party shall be calculated (A) net of any amount amounts actually recovered by such the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor.
(b) The Indemnifying Party shall not be liable under Section 7.02 for any punitive Damages (except for punitive Damages awarded against an Indemnified Party in a Third Party Claim).
(c) The Indemnified Parties shall act in good faith and a commercially reasonable manner to mitigate any Damages they may pay, incur, suffer or sustain for which indemnification is available hereunder to the extent required by Law. If an Indemnified Party recovers an amount from a third party alleged to be responsible for such Damages, less (including an insurer) in respect of Damages that are the costs and expenses incurred to obtain such recovery; and (B) net subject of any third party insurance proceeds actually received by such Indemnified Party for indemnification hereunder after all or a portion of such Damages under any insurance policyhas been paid by an Indemnifying Party pursuant to Section 7.02, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified Party shall not be entitled promptly remit to double recovery for any Damages even though the Damages may have resulted from Indemnifying Party the breach excess (if any) of more than one of (i) the representations, warranties, agreements and covenants made amount paid by the Indemnifying Party in this Agreementrespect of such Damages, plus the amount received from the third party (including an insurer) in respect thereof, less (ii) the full amount of the Damages finally determined in accordance with Section 7.09, within ten Business Days after the amount is received.
(iiid) The Purchaser Indemnified Parties With respect to Buyer and its Affiliates, Damages shall not be entitled to indemnification for any Damages relating to any matter limited to the extent (but only Damages imposed on, sustained, incurred or suffered by Buyer and its Affiliates attributable to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationPurchased Interest. In no event circumstances shall Damages include any Damages suffered by Sumitomo Arizona or any Damages indirectly suffered by Buyer or its Affiliates as a result of Buyer’s indirect interest in the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to Business and the extent damages for such lost profits are awarded to a third party Venture Property through its interest in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationSumitomo Arizona.
Appears in 1 contract
Calculation of Damages. (ia) For the purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be calculated (A) net of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified The Indemnifying Party shall not be entitled to double recovery for liable under this Article 4 or any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iiii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter Losses to the extent that they are in the nature of (but only A) punitive damages or (B) consequential, special or indirect damages, except, in the case of this clause (B), to the extent) that the amount of extent such Damages is specifically and identifiably reflected as Losses are a Current Liability in the calculation reasonably foreseeable result of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an that gave rise thereto or the matter for which indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or natureis sought hereunder, regardless of the form of action through which such damages Losses are sought, except in each case of the foregoing clauses (A) and (B), to the extent any such damages Loss are awarded to included in any proceeding by a third party in connection with a Third against such Indemnified Party Claim for which it is entitled to indemnification under this Agreement or except in connection with (ii) Losses relating to any fraud, matter (or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach underlying set of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except facts) to the extent damages that the Indemnified Party has otherwise been compensated for such lost profits are awarded Losses pursuant to a separate indemnification provision in this Article 4.
(b) Each Indemnified Party shall use reasonable commercial effort to mitigate in accordance with applicable Law any Loss for which such Indemnified Party seeks indemnification under this Agreement or any Ancillary Agreement; provided, however, that the Indemnified Parties shall not be required to institute or threaten any Action against any supplier, customer or other third party party. Any costs of mitigation shall be deemed to be indemnifiable Losses. If such Indemnified Party mitigates its Loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in connection with a Third respect of that Loss, the Indemnified Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationmust notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation).
Appears in 1 contract
Calculation of Damages. Notwithstanding anything to the contrary herein:
(ia) For no Purchaser Indemnitee shall be entitled to indemnification to the purposes extent such Damages were specifically reserved for or included in the final determination of Net Working Capital, Closing Date Indebtedness or the Audited Financial Statements;
(b) no Purchaser Indemnitee shall be entitled to indemnification for Damages with respect to (1) Taxes that arise from any breach of a covenant or agreement made or to be performed by Purchaser or its Subsidiaries (including, from and after the Closing, the Group Companies) pursuant to this Article 8, Agreement; (2) the amount of any net operating loss, Tax basis, Tax credit or other Tax attribute (or the loss, unavailability or reduction thereof) or (3) any Transfer Taxes, except as provided in Section 5.10(c); |
(c) the amount of any Damages incurred that are subject to indemnification, payment or suffered reimbursement under this Article 7 shall be reduced by an amount equal to any Tax refund, credit, offset or other similar benefit (a “Tax Benefit”) actually realized as a result of such Damages by the Indemnified Party. The Indemnified Party shall be calculated deemed to have “actually received” a Tax Benefit to the extent that the amount of Taxes actually paid by the Indemnified Party or any of its Affiliates in the taxable period in which Damages occur is reduced below the amount of Taxes that such Persons would have been required to pay but for the Tax Benefit;
(Ad) (i) each Indemnified Party shall use its commercially reasonable efforts to mitigate any Damages for which it is entitled to indemnification pursuant to this Article 7 and (ii) the Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party; provided, however, that in each case, no party shall be required to make such efforts if they would be detrimental in any material respect to such party;
(e) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by (i) any available insurance proceeds with respect to such Damages (net of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the expenses or costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses collection incurred by such Indemnified Party to collect in recovering such amounts, including any increases in premiums under any insurance policies where such increase directly resulted from any such insurance proceeds (including reasonable attorneys’ feespayments), any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
and (ii) Any all other amounts recovered from a third party pursuant to indemnification or otherwise in respect of such Damages, in each case, net of out-of-pocket costs and expenses reasonably incurred by such Indemnified Party; provided that if an Indemnified Party recovers an amount from a third party in respect of Damages that are the subject of indemnification hereunder after all or a portion of such Damages have been paid by an Indemnifying Party pursuant to this Article 7, then the Indemnified Party shall not be entitled promptly remit to double recovery for any Damages even though the Damages may have resulted from Indemnifying Party the breach excess (if any) of more than one of (A) (1) the representations, warranties, agreements and covenants made amount paid by the Indemnifying Party in this Agreement.
respect of such Damages plus (iii2) The Purchaser the amount received by the Indemnified Parties Party in respect thereof (net of out-of-pocket costs and expenses reasonably incurred in obtaining such recovery) over (B) the full amount of the Damages; for the avoidance of doubt, such remitted amount shall not be in excess of the applicable indemnification payment;
(f) in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article 7, no other Indemnified Party shall be entitled to indemnification recover the same Damages in respect of a claim for indemnification;
(g) no Party shall be liable for any Damages relating to any matter to the extent that such claim arises or the amount of Damages is increased (but and if increased, only to the extentextent of such increase) as a result of any change in the accounting policies or practices of, or applicable to, the Company or the Company Subsidiary introduced or having effect on or after the | Closing Date; provided such change was not required to comply with any Law or Order or the standards of IFRS;
(h) no Party shall be liable for any Damages to the extent that the amount of such Damages is specifically has been increased (and identifiably reflected if increased, only to the extent of such increase) as a Current Liability in result of statutory Law promulgated after the calculation of the Final Closing Working Capital pursuant to Section 2.3.Date;
(ivi) In no event shall an Indemnified Party will be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential recover damages in respect of any kind claim under this Agreement or nature, regardless otherwise obtain indemnification more than once in respect of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationsame losses suffered. In no the event shall the Seller be liable for lost profits resulting from an alleged that any circumstance gives rise to more than one right of claim or constitutes a breach of more than one representation, warranty, covenant or agreement hereunder, the relevant party shall be entitled to be indemnified or make recovery only once in respect of any such circumstance; and
(j) For the purposes of calculating the amount of Damages related to any breach of representation or warranty, for the purposes of Section 7.2(a), any qualification as to materiality, “Material Adverse Effect” or any other similar qualification or standard (including the monetary thresholds contained in Section 3.13(a), Section 3.14, Section 3.16(b), Section 3.17(d) and Section 3.22(b)) contained in Article 3 of this Agreement, even if under Applicable Law, such lost profits would not Agreement shall be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationdisregarded.
Appears in 1 contract
Sources: Share Purchase Agreement (Liberty Latin America Ltd.)
Calculation of Damages. (ia) For the purposes of this Article 8, the The amount of any Damages incurred or suffered payable under Section 11.02 by any Indemnified the Indemnifying Party shall be calculated (A) net of any amount actually amounts recovered by such the Indemnified Party under applicable insurance policies or from a third party any other Person alleged to be responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for such any Damages, less subsequent to an indemnification payment by the costs and expenses Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to obtain such recovery; and (B) the amount received by the Indemnified Party, net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any in collecting such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)amount.
(iib) Any Indemnified The Indemnifying Party shall not be entitled to double recovery liable under Section 11.02 for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iiii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably matter has been reflected as a Current Liability in the calculation determination of the Final Closing Working Capital pursuant Purchase Price (i.e., as an adjustment to the dollar amount set forth in the definition of “Purchase Price”), or (ii) consequential, punitive or damages or lost profits, in each case other than fraud, criminal activity or willful misconduct; provided, however, that this Section 2.3.
(iv11.05(b) In no event shall an Indemnified Party be entitled not limit a Party’s right to make an indemnification claim recover losses under this Article 11 for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except losses to the extent (x) such damages are awarded Party is required to pay such losses to a third party in connection with a Third matter for which such Party Claim is otherwise entitled to indemnification under this Article 11 or except in connection with any fraud, (y) such losses (other than punitive or fraudulent or intentional misrepresentation. In no event shall exemplary damages) were a reasonably foreseeable result of the Seller be liable for lost profits resulting from an alleged applicable breach of this Agreement.
(c) Notwithstanding anything herein to the contrary, even if for purposes of determining whether any breach of a representation or warranty has occurred and the amount of the Damages to which any Indemnified Party may be entitled under this ARTICLE 11, each of the representations and warranties that contains any “Material Adverse Effect”, “material” or similar qualifications shall be read as though such qualifications were not contained therein.
(d) Each Indemnified Party must mitigate in accordance with Applicable LawLaw any loss for which such Indemnified Party seeks indemnification under this Agreement provided, in no event shall any Buyer Indemnified Party be obligated to initiate litigation or arbitration with any supplier or customer of the Company. If such lost profits would not Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s costs (including reasonable attorney’s fees) of mitigation) within two (2) Business Days after the benefit is received.
(e) Each Indemnified Party shall use its commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be considered consequential or special damagesresponsible, except for any Damages payable under Section 11.02.
(f) Except to the extent damages for such lost profits are awarded to a third party expressly provided in connection with a Third Section 13.11, no knowledge by any Buyer Indemnified Party Claim of any inaccuracy of any representation or except in connection with any fraudwarranty under ARTICLE 3, or fraudulent or intentional misrepresentationany failure of Seller to perform any covenant hereunder, shall limit the ability of any Buyer Indemnified Party to bring any claim under this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (NGL Energy Partners LP)
Calculation of Damages. (i) For the purposes of Except as otherwise provided in this Article 8X (or, in the case of any and all Tax matters, in Section 7.08(d)), in any case where the Indemnified Party subsequently recovers from third parties any amount in respect of Damages incurred or suffered by a matter with respect to which an Indemnifying Party has indemnified it pursuant to this Article X (or, in the case of any and all Tax matters, to Section 7.08(d)), such Indemnified Party shall be calculated promptly pay over to the Indemnifying Party the amount so recovered (A) net after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in this Agreement.
(iii) respect of such matter. The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that computation of the amount of such Damages is specifically any indemnity payment required to be made pursuant to this Article X (or, in the case of any and identifiably reflected all Tax matters, to Section 7.08(d)) shall be reduced by the amount of the Tax benefit, if any, actually realized by the Indemnified Party as a Current Liability result of incurring the liability at issue net of any Tax costs incurred by the Indemnified Party relating or attributable to the receipt of such indemnity payment; provided that, if such net Tax benefit is determined after the applicable indemnity payment is made pursuant to this Article X (or, in the calculation case of any and all Tax matters, to Section 7.08(d)), the Final Closing Working Capital Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to Section 2.3.
this Article X (iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitiveor, special, incidental, indirect or consequential damages in the case of any kind or natureand all Tax matters, regardless to Section 7.08(d)) had such determination been made at the time of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.payment
Appears in 1 contract
Calculation of Damages. (i1) For the purposes purpose only of this Article 8, calculating the amount of Damages incurred under this Article 5, the representations and warranties of the Parties contained in this Agreement or suffered by in any Indemnified Party other agreement, certificate or instrument executed and delivered pursuant to this Agreement shall be calculated (A) net deemed to have been made without qualifications as to materiality where the words or phrases “material”, “immaterial”, “in all material respects”, “Material Adverse Change” or words or phrases of any amount actually recovered by similar import are used in or otherwise applicable to such Indemnified Party from a third party alleged to be responsible for such Damages, less the costs representation and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)warranty.
(ii2) Any The calculation of the amount of Damages payable to an Indemnified Party shall not be affected by any inspection or inquiries made by or on behalf of the Party entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in be indemnified under this AgreementArticle 5.
(iii3) The Purchaser Indemnified Parties shall not be entitled to indemnification for Notwithstanding anything herein, the amount of any Damages relating suffered or incurred by an Indemnified Party in respect of any indemnification claim by such Indemnified Party against an Indemnifying Party shall be deemed to be reduced by any insurance proceeds, or any indemnity, reimbursement or contribution or any other similar payment directly or indirectly received or realized by such Indemnified Party or any of its Affiliates as a result of or in connection with the matter giving rise to the extent applicable Damages (but only net of any deductible, increase of premium and any other costs, expenses and Taxes incurred in connection with such recovery). The Indemnified Party shall use commercially reasonable efforts to recover under its applicable insurance policies or its applicable indemnity, reimbursement or contribution or similar arrangements, but, for greater certainty, no Indemnified Party shall be required to do so prior to making a claim for indemnification under this Article 5. In the extent) event that the amount of any Damages suffered or incurred by an Indemnified Party in respect of any indemnification claim by such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital Indemnified Party against an Indemnifying Party are deemed to be reduced pursuant to this Section 2.35.9(3) subsequent to such Indemnifying Party making the applicable indemnification payment required to be made by it under this Agreement in connection with such indemnification claim, such Indemnified Party shall promptly pay over to the Indemnifying Party an amount equal to the lesser of (i) the amount of such indemnification payment, or (ii) the amount equal to (A) such recovery (net of any deductible, increase of premium and any other costs, expenses and Taxes incurred in connection with such recovery) plus (B) such indemnification payment minus (C) the Damages to which such recovery relates.
(iv4) In no event Payments by an Indemnifying Party under Section 5.2 or 5.3 in respect of any Damages shall an be reduced by the net amount of any Tax benefits actually realized by the Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages thereof as a result of the incurrence of payment of any kind or nature, regardless of such Damages in the form of action through a refund or reduction in Taxes otherwise payable within the taxation year in which such damages are soughtDamages were incurred or paid, except to the extent such damages are awarded to a third party immediately preceding taxation year or the next immediately succeeding taxation year, in connection with a Third Party Claim each case calculated by comparing Taxes that would have been payable without taking into account any deduction or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits credit resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential Damages and Taxes actually payable by taking into account such deductions or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationcredits.
Appears in 1 contract
Sources: Share Purchase Agreement (Priority Technology Holdings, Inc.)
Calculation of Damages. (ia) Each Indemnified Party shall in connection with any claim for indemnification under Section 9.1 use commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Party as applicable to the claim. Commercially reasonable efforts shall obligate such Indemnified Party to submit claims but not to commence litigation against any insurer or submit claims under insurance policies held by a Person other than the Indemnified Party and its Affiliates. For the purposes of this Article 8ARTICLE IX, the amount of Damages incurred which the Indemnifying Party is or suffered by may be required to pay to any Indemnified Party pursuant to Section 9.1 shall be calculated reduced by (Ai) any insurance proceeds, (ii) any indemnity, contribution or other similar payment recoverable by the Indemnified Party or any of its Affiliates from any third party with respect thereto (it being understood that there is no obligation to recover or pursue recovery of any amounts referred to in this clause (ii)), in each case of clause (i) and (ii) immediately above, that are actually recovered by or on behalf of such Indemnified Party in reduction of the related Losses (net of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the reasonable and documented costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any obtaining such insurance proceeds (including or other amounts and any reasonable attorneys’ fees, any deductibles or self- insured retentions, any projected increases in premium insurance premiums arising because of such claim), and (iii) any Tax benefit realized or any retroactive premium adjustments directly related reasonably expected to obtaining be realized as a result of such insurance proceedsLoss by the Indemnified Party (such recoveries under clauses (i) through (iii) immediately above are collectively referred to as "Indemnity Reduction Amounts").
(iib) Any If any Indemnified Party shall not be entitled or any of its Affiliates receives any Indemnity Reduction Amounts in respect of a Claim for which indemnification is provided under this Agreement after the full amount of such Claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such Claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such Claim, then the Indemnified Party will promptly remit to double recovery for any Damages even though the Damages may have resulted from Indemnifying Party an amount equal to the breach excess (if any) of more than one of (x) the representations, warranties, agreements and covenants made amount theretofore paid by the Indemnifying Party or any of its Affiliates in this Agreementrespect of such Claim, less (y) the amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made.
(iiic) The Purchaser Indemnified Parties If any fact, circumstance or condition forming a basis for a Claim for indemnification under this ARTICLE IX shall not overlap with any fact, circumstance, condition, agreement or event forming the basis of any other claim for indemnification under this ARTICLE IX, there shall be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability no duplication in the calculation of the Final Closing Working Capital pursuant to Section 2.3amount of Losses.
(ivd) In no After becoming aware of any event shall an giving rise to or which could reasonably be expected to give rise to indemnifiable Losses under Section 9.1(a)(i), Section 9.1(a)(ii), Section 9.1(b)(i) or Section 9.1(b)(ii), as applicable, the applicable Indemnified Party be entitled shall take, and cause its Affiliates to make an indemnification claim for any punitivetake, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which commercially reasonable steps to mitigate such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationindemnifiable Losses.
Appears in 1 contract
Calculation of Damages. Notwithstanding anything to the contrary herein:
(a) no Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such indemnification has been included in the calculation of Closing Date Net Working Capital or Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)) in an amount greater than or equal to the Damages incurred by the Buyer Indemnitee related to such Liability;
(b) no Buyer Indemnitee shall be entitled to indemnification for Damages with respect to (i) For Taxes that arise from any breach of a covenant or agreement made or to be performed by Buyer Parent or its Affiliates (including, from and after the purposes Closing, the Group Companies) pursuant to this Agreement, (ii) Taxes that arise from any action taken by Buyer Parent or its Affiliates (including, from and after the Closing, the Group Companies) on the Closing Date following the Closing outside the ordinary course of this Article 8business, (iii) the amount of any net operating loss, Tax basis, Tax credit or other Tax attribute (or the loss, unavailability or reduction thereof), except to the extent resulting directly in additional cash Tax liability of the Group Companies for a Pre-Closing Tax Period that otherwise would not have been imposed or (iv) any Transfer Taxes arising from the transactions to occur at, or in connection with, Closing (other than Transfer Taxes allocated to Seller Parent or the Sellers pursuant to Section 6.01(c));
(c) each Indemnified Party shall, to the extent required by applicable Law, use its commercially reasonable efforts to mitigate any Damages for which it seeks indemnification pursuant to this Article IX (it being understood that any reasonable costs or expenses incurred in connection with such mitigation shall be included in Damages indemnifiable pursuant to this Article IX and mitigation shall not be deemed to include a requirement for any party to threaten or suffered commence any Action), provided, however, that (i) post-Closing environmental testing at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) as part of the Buyer Parent’s and its Affiliates’ (including the Group Companies) Environmental Health & Safety new real property onboarding and assessment process will not be a breach of this provision so long as such environmental testing does not involve any sampling, monitoring or other invasive testing or invasive activity not otherwise required by applicable Environmental Law and (ii) sampling of air at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) in the ordinary course of business will not be a breach of this provision;
(d) the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any Indemnified Party shall be calculated (Ai) insurance proceeds (net of any amount deductibles or self-insured amounts) with respect to such Damages (other than under the R&W Insurance Policy) actually recovered by such Indemnified Party received from a third party alleged to be responsible for such Damagesinsurers, less the costs and expenses incurred to obtain such recovery; and (Bii) net of any third party insurance proceeds all available cash Tax benefits actually received by such Indemnified Party for with respect to such Damages under any insurance policyutilized in the tax year such Damages were incurred or within the three (3) subsequent tax years and (iii) all other amounts actually recovered from a third party pursuant to indemnification or otherwise in respect of such Damages, (excluding self-insurance arrangements) less the in each case, net of costs and expenses or any increases in premiums or other chargebacks incurred by such Indemnified Party to collect associated with receiving such recovery or proceeds in respect of a claim; provided, that if an Indemnified Party recovers any such insurance proceeds (including reasonable attorneys’ feesamounts from a third party in respect of Damages that are the subject of indemnification hereunder after all or a portion of such Damages have been paid by an Indemnifying Party pursuant to this Article IX, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any then the Indemnified Party shall not be entitled promptly remit to double recovery for any Damages even though the Damages may have resulted from Indemnifying Party the breach excess (if any) of more than one of (A)(1) the representations, warranties, agreements and covenants made amount paid by the Indemnifying Party in respect of such Damages plus (2) the amount received by the Indemnified Party in respect thereof (net of costs and expenses reasonably incurred in obtaining such recovery) less (B) the full amount of the Damages;
(e) an Indemnifying Party shall not be liable to an Indemnified Party for any adjustment or reassessment which would correspond to a mere change in the time when Taxes should have been paid or such Taxes can effectively be deducted or recovered by the relevant Person, other than with respect to any interest, additions or penalties for late payment otherwise indemnifiable under this Agreement.;
(f) for purposes of determining Damages pursuant to this Article IX, any breach of, or inaccuracy in, any representation, warranty, covenant, obligation or agreement contained in this Agreement or any other Transaction Document, shall be determined without giving effect to any limitations or qualifications regarding materiality, the use of the words “material,” “material respects,” “Material Adverse Effect,” or any similar term, qualification or limitation based on materiality contained herein or therein (provided, however, that the foregoing shall not apply to the applicable portions of Section 3.06(a), Section 3.07(b), Section 3.09(a) or the applicable portions of any of the other representations and warranties set forth in Article III requiring the listing of matters and which are qualified by materiality or similar qualifications);
(g) Seller Parent shall not be required to indemnify a Buyer Indemnitee for any Damages to the extent any response activities, remediation or cleanup of the Real Property in connection with any Environmental Health & Safety Laws is (i) in response to any voluntary environmental sampling or reporting of any confidential information with respect to environmental, health or safety conditions at the Real Property undertaken after the Closing Date (excluding sampling of air at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) in the ordinary course of business), which is not (A) required by Environmental Health & Safety Law or any Permit; (B) ordered, directed or otherwise required by any Governmental Authority; or (C) required by the landlord (who is not an Affiliate of Buyer Parent) of any Leased Real Property; or (ii) to a cleanup standard more stringent than the least stringent permissible standard under Environmental Health & Safety Laws applicable to the Real Property and the business and operations of the Buyer Indemnitee at the time of such response activity, remediation or cleanup, consistent with industrial use (except where a more stringent standard is required by a Governmental Authority, the landlord/owner of any Leased Real Property, or a Governmental Order). Such applicable cleanup standards shall include, where permitted and approved by a Governmental Authority, the use of restrictive covenants and institutional controls, provided such restrictive covenants or institutional controls do not significantly interfere with Buyer’s use or operation of the Real Property or the conduct of such Buyer Indemnitee’s business; and
(h) notwithstanding anything to the contrary herein, no Party shall be liable for any (i) special, punitive or exemplary damages, (ii) incidental, consequential or indirect damages, (iii) The Purchaser Indemnified Parties shall lost profits or lost business, loss of enterprise value, diminution in value, damage to reputation or loss of goodwill or (iv) damages calculated based on a multiple of profits, revenue or any other financial metric, in each case, whether based on contract, tort, strict liability, other Law or otherwise, and whether or not be entitled to indemnification for arising from any Damages relating to any matter other Party’s sole, joint or concurrent negligence, strict liability or other fault, except, in the case of clauses (i) – (iv), to the extent (but only to the extent) that the amount awarded and paid on account of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except otherwise available under Delaware Law or, in connection with any fraudthe case of clauses (ii) – (iv), or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationreasonably foreseeable.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Modine Manufacturing Co)
Calculation of Damages. (ia) For The amount of any Damages payable under Article 8 or 9 or Section 11.02 by the purposes Indemnifying Party shall be net of this Article 8, any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies and any Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages. In computing the amount of Damages incurred or suffered by any such Tax Benefit, the Indemnified Party shall be calculated (A) net deemed fully to utilize, at the highest marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such indemnified Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(iib) Any Indemnified The Indemnifying Party shall not be entitled to double recovery liable under Article 8 or 9 or Section 11.02 for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iiii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent that (but only A) there is included in the Closing Balance Sheet a specific liability or reserve relating to such matter or the Indemnified Party has otherwise been compensated for such matter pursuant to the extent) that the amount of such Purchase Price adjustment under Section 2.05, consequential Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable Damages for lost profits resulting from an alleged breach profits. For the purposes of this Agreement, even if under Applicable Law, such lost profits would Damages shall not be considered consequential determined through any multiple of earnings approach or special damages, except variant thereof and shall take account of the time value of money.
(c) Notwithstanding any other provision of this Agreement to the extent damages for contrary, if on the Closing Date the Indemnified Party knows of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate, the Indemnified Party shall have no right or remedy after the Closing with respect to such lost profits are awarded inaccuracy and shall be deemed to a third party have waived its rights to indemnification in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationrespect thereof.
Appears in 1 contract
Sources: Purchase Agreement (RJR Nabisco Inc)
Calculation of Damages. Notwithstanding anything to the contrary herein:
(a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness.
(b) Notwithstanding anything to the contrary contained in this Agreement: (i) For an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the purposes of this Article 8case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or suffered exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation.
(c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller).
(d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage.
(e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be calculated (A) net entitled to recover the same Damages in respect of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible claim for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds)indemnification.
(f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) Any Indemnified Party the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not be entitled apply to double recovery for any Damages even though the Damages may have resulted from representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the breach first sentence of more than one of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreementdefined term “Material Contract”.
(iiig) The Purchaser Indemnified Parties If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this 55 Article X to ▇▇▇ for damages or to assert any Damages other right or remedy arising from any matters relating to any matter such condition or breach, notwithstanding anything to the extent (but only contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the extent) that fullest extent permitted under applicable Law the amount remedy of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3rescission.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement
Calculation of Damages. (a) The amount of any Damages suffered by any party hereto shall be reduced by (i) For any amount that is reserved for sums held in reserve in respect of the purposes indemnifiable event on the balance sheet of this Article 8the Entities, as applicable, as of December 31, 2006 to the amount of extent such Damages incurred or are suffered by a Buyer Indemnified Party, or (ii) any amount that an Indemnified Party shall be calculated (A) net of is entitled to receive with respect thereto under any amount actually recovered by such Indemnified Party third party insurance coverage or from a third any other party alleged to be responsible therefor.
(b) If an Indemnified Party makes a claim for indemnification under this Article VI, the Indemnified Party shall use its reasonable best efforts to collect any amounts available under such Damagesinsurance coverage and from such other party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or from such other party with respect to Damages at any time subsequent to any indemnification provided by Seller or Buyer, less as the costs and expenses incurred case may be, pursuant to obtain such recovery; and (B) net of any third party insurance proceeds actually received by this Article VI, then such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less shall promptly reimburse the costs and expenses incurred by such Indemnified Indemnifying Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants payment made or expense incurred by the Indemnifying Party in this Agreement.
(iii) The Purchaser connection with providing such indemnification up to such amount received by the Indemnified Parties shall not be entitled to indemnification for Party, but net of any Damages relating to any matter to expenses incurred by the Indemnified Party in collecting such amount. To the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital Indemnifying Party makes any indemnification payment pursuant to Section 2.3.
(iv) In no event shall this Article VII in respect of Damages for which an Indemnified Party be entitled has a right to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to recover against a third party in connection with a Third (including an insurance company), the Indemnifying Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except subrogated to the extent damages for right of the Indemnified Party to seek and obtain recovery from such lost profits are awarded to a third party; provided, however, that if the Indemnifying Party shall be prohibited from such subrogation, the Indemnified Party shall seek recovery from such third party in connection with a Third on the Indemnifying Party's behalf and pay any such recovery to the Indemnifying Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationnet of expenses.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Consumers Energy Co)
Calculation of Damages. (i) For the purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be calculated (A) net of any amount actually recovered by such Indemnified Party from a third party alleged to be responsible for such Damages, less the costs and expenses incurred to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- self-insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by the Indemnifying Party in this Agreement.
(iii) The Purchaser Indemnified Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to Section 2.3.
(iv) In no event shall an Indemnified Party be entitled to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the extent damages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.
Appears in 1 contract
Calculation of Damages. (a) The amount of any Damages suffered by any party hereto shall be reduced by (i) For any amount that is reserved for sums held in reserve in respect of the purposes indemnifiable event on the balance sheet of this Article 8the Entities, as applicable, as of December 31, 2006 to the amount of extent such Damages incurred or are suffered by a Buyer Indemnified Party, or (ii) any amount that an Indemnified Party shall be calculated (A) net of is entitled to receive with respect thereto under any amount actually recovered by such Indemnified Party third party insurance coverage or from a third any other party alleged to be responsible therefor.
(b) If an Indemnified Party makes a claim for indemnification under this Article VI, the Indemnified Party shall use its reasonable best efforts to collect any amounts available under such Damagesinsurance coverage and from such other party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or from such other party with respect to Damages at any time subsequent to any indemnification provided by Seller or Buyer, less as the costs and expenses incurred case may be, pursuant to obtain such recovery; and (B) net of any third party insurance proceeds actually received by this Article VI, then such Indemnified Party for such Damages under any insurance policy, (excluding self-insurance arrangements) less shall promptly reimburse the costs and expenses incurred by such Indemnified Indemnifying Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds).
(ii) Any Indemnified Party shall not be entitled to double recovery for any Damages even though the Damages may have resulted from the breach of more than one of the representations, warranties, agreements and covenants payment made or expense incurred by the Indemnifying Party in this Agreement.
(iii) The Purchaser connection with providing such indemnification up to such amount received by the Indemnified Parties shall not be entitled to indemnification for Party, but net of any Damages relating to any matter to expenses incurred by the Indemnified Party in collecting such amount. To the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital Indemnifying Party makes any indemnification payment pursuant to Section 2.3.
(iv) In no event shall this Article VII in respect of Damages for which an Indemnified Party be entitled has a right to make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or nature, regardless of the form of action through which such damages are sought, except to the extent such damages are awarded to recover against a third party in connection with a Third (including an insurance company), the Indemnifying Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation. In no event shall the Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except subrogated to the extent damages for right of the Indemnified Party to seek and obtain recovery from such lost profits are awarded to a third party; provided, however, that if the Indemnifying Party shall be prohibited from such subrogation, the Indemnified Party shall seek recovery from such third party in connection with a Third on the Indemnifying Party’s behalf and pay any such recovery to the Indemnifying Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentationnet of expenses.
Appears in 1 contract