Liability Limits. (a) Solely with respect to a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to Section 7.1(a) or Section 7.2(a) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) (the “Threshold Amount”) in the aggregate, after which point the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer Losses or Seller Losses, respectively, with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 in excess of the Threshold Amount. (b) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount). (c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) shall not exceed the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceed, in the aggregate, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c), and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2, shall not be limited in amount. (d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if, and solely to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages. (e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law. (f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof. (g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraud.
Appears in 2 contracts
Sources: Membership Interest and Asset Purchase Agreement, Membership Interest and Asset Purchase Agreement (Crawford & Co)
Liability Limits. Notwithstanding anything herein to the contrary, any recovery by an Indemnified Party pursuant to this Article XI shall be limited as follows:
(a) Solely with respect Stagecoach I and Stagecoach Energy shall not be obligated to a breach of indemnify the Operational Representations, no amounts of indemnity shall be payable pursuant to Section 7.1(aPurchaser Indemnitees for Losses arising under Sections 11.2(a)(i) or Section 7.2(a) 11.2(a)(iv), unless and until the Buyer Indemnified Parties or aggregate amount of such Losses exceeds $2,000,000, in which event Stagecoach I and Stagecoach Energy shall indemnify the Seller Indemnified Parties, respectively, shall have suffered Buyer Purchaser Indemnitees only for Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) (such amount; provided, however, that the “Threshold Amount”) in the aggregate, after which point the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, foregoing limitation shall be entitled to recover only Buyer Losses or Seller Losses, respectively, not apply with respect to claims for indemnification pursuant Losses that arise out of or relate to Section 7.1 the representations or Section 7.2 warranties made in excess of the Threshold AmountSections 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.10, 5.25 or 5.27.
(b) Solely Stagecoach II shall not be obligated to indemnify the Purchaser Indemnitees for Losses arising under Sections 11.2(b)(i) or 11.2(b)(iv), unless and until the aggregate amount of such Losses exceeds $10,000, in which event Stagecoach II shall indemnify the Purchaser Indemnitees only for Losses in excess of such amount; provided, however, that the foregoing limitation shall not apply with respect to a breach Losses that arise out of or relate to the Operational Representations, Sellers shall not be liable for any individual representations or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount)warranties made in Sections 4.1 or 4.2.
(c) The aggregate amount of Buyer Purchasers shall not be obligated to indemnify the Seller Indemnitees for Seller Losses that may be recovered (i) against Sellers arising under Section 7.1(a) shall not exceed 11.3(a), unless and until the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceedsuch Seller Losses exceeds $2,000,000, in which event the aggregate, Purchasers shall indemnify the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c), and (B) the aggregate amount of Seller Indemnitees only for Seller Losses that may be recovered against Buyers under Section 7.2, shall not be limited in excess of such amount.
(d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this the foregoing limitation shall not apply if, and solely with respect to Losses that arise out of or relate to the extent thatrepresentations or warranties in Sections 6.1, an Indemnified Party is seeking 6.2 or 6.5.
(d) The indemnity obligations of Stagecoach I and Stagecoach Energy pursuant to obtain through indemnification reimbursement Section 11.2(a)(i) shall be limited in the aggregate to $25,500,000; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of Losses resulting from an award or relate to the representations or warranties in a Third Party Claim against such Indemnified Party of consequentialSections 3.1, exemplary 3.2, 3.3, 5.1, 5.2, 5.3, 5.10, 5.25 or punitive damages5.27, which shall be limited as provided in Section 11.5(e).
(e) Any Except as set forth in Section 11.5(d), the indemnity payment under this Agreement obligations of Stagecoach I and Stagecoach Energy pursuant to Section 11.2(a) shall be treated as an adjustment limited in the aggregate to the Purchase Price for Tax purposes, unless otherwise required by applicable Law$125,000,000.
(f) The Indemnified Party indemnity obligations of Stagecoach II pursuant to Section 11.2(b)(i) shall take all commercially reasonable steps be limited in the aggregate to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim$2,500,000; provided, andhowever, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) foregoing limitation shall not apply with respect to any Losses arising that arise out ofof or relate to the representations or warranties in Sections 4.1 or 4.2, resulting from which shall be limited as provided in Section 11.5(g).
(g) Except as set forth in Section 11.5(f), the indemnity obligations of Stagecoach II pursuant to Section 11.2(b) shall be limited in the aggregate to $15,000,000.
(h) The indemnity obligations of the Purchasers pursuant to Section 11.3(a) shall be limited in the aggregate to $25,500,000; provided, however, that the foregoing limitation shall not apply with respect to Losses that arise out of or relating relate to any action the representations or inaction that constitutes fraudwarranties in Sections 6.1, 6.2 or 6.5.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Inergy Holdings, L.P.)
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement, the AT&T Parties and the AT&T Newcos, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Acquiror Indemnified Party with respect to (i) any single Claim less than $40,000 (each, a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to “De Minimis Claim”) under Section 7.1(a11.1(a)(i) or Section 7.2(a11.1(b)(i), (ii) any Claims under Section 11.1(a)(i) or Section 11.1(b)(i) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess aggregate amount of One Hundred Eighty Five Thousand Dollars such Claims (excluding amounts associated with De Minimis Claims) exceeds an amount equal to $185,000) 42,000,000 (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer AT&T Parties and the AT&T Newcos, collectively, shall only be required to indemnify the Acquiror Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer Losses or Seller Losses, respectively, for all such Claims (excluding amounts associated with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 De Minimis Claims) in excess of the Threshold AmountRepresentations and Warranties Deductible and (iii) any Claims under Section 11.1(a)(v) unless and until the aggregate amount of such Claims exceeds an amount equal to $8,400,000 (the “Pre-Closing Claims Deductible”), after which the AT&T Parties and the AT&T Newcos, collectively, shall only be required to indemnify the Acquiror Indemnified Parties for all such Claims in excess of the Pre-Closing Claims Deductible. In no event shall the AT&T Parties or the AT&T Newcos be required to indemnify the Acquiror Indemnified Parties under Section 11.1(a)(i) or Section 11.1(b)(i), taken together, for more than $242,500,000 in the aggregate (the “Cap”). Notwithstanding the foregoing, the limitations set forth in this Section 11.5(a) shall not apply to any Claims resulting from or arising out of breaches of the Specified Representations and Warranties or due to fraud, by or on behalf of the Indemnifying Party.
(b) Solely Notwithstanding anything to the contrary in this Agreement, Acquiror and the Tower Operator, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any AT&T Indemnified Party with respect to a breach (i) any De Minimis Claim under Section 11.2(a)(i) or Section 11.2(b)(i) and (ii) any Claims under Section 11.2(a)(i) or Section 11.2(b)(i) unless and until the aggregate amount of such Claims (excluding amounts associated with De Minimis Claims) exceeds the Representations and Warranties Deductible, after which Acquiror and the Tower Operator, collectively, shall only be required to indemnify the AT&T Indemnified Parties for all such Claims (excluding amounts associated with De Minimis Claims) in excess of the Operational RepresentationsRepresentations and Warranties Deductible. In no event shall Acquiror or the Tower Operator be required to indemnify the AT&T Indemnified Parties under Section 11.2(a)(i) or Section 11.2(b)(i), Sellers taken together, for more than the Cap in the aggregate. Notwithstanding the foregoing, the limitations set forth in this Section 11.5(b) shall not be liable for apply to any individual Claims resulting from or series arising out of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards breaches of the Threshold Amount)Specified Representations and Warranties or due to fraud, by or on behalf of the Indemnifying Party.
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) shall not exceed Notwithstanding anything to the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceedcontrary in this Article 11, in the aggregateno event shall an Indemnifying Party have liability to any Indemnified Party for any consequential, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c)special, and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2incidental, shall not be limited in amount.
(d) In any claim for indemnification under this Agreementindirect or punitive damages, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings lost profits or similar measures of the Companyitems, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if, and solely each case except as actually paid to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award a claimant in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree provided that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) foregoing shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraudlimit recovery for diminution in value of an asset as a result of a breach.
Appears in 2 contracts
Sources: Master Agreement (At&t Inc.), Master Agreement (Crown Castle International Corp)
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement, the Verizon Parties and the Verizon Lessors, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Acquiror Indemnified Party with respect to (i) any single Claim less than $50,560.00 (each, a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to “De Minimis Claim”) under Section 7.1(a11.1(a)(i) or Section 7.2(a11.1(b)(i), (ii) any Claims under Section 11.1(a)(i) or Section 11.1(b)(i) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess aggregate amount of One Hundred Eighty Five Thousand Dollars such Claims (excluding amounts associated with De Minimis Claims) exceeds an amount equal to $185,000) 50,560,000.00 (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer Verizon Parties and the Verizon Lessors, collectively, shall only be required to indemnify the Acquiror Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer Losses or Seller Losses, respectively, for all such Claims (excluding amounts associated with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 De Minimis Claims) in excess of the Threshold AmountRepresentations and Warranties Deductible and (iii) any Claims under Section 11.1(a)(iii) unless and until the aggregate amount of such Claims exceeds an amount equal to $10,112,000.00 (the “Pre-Closing Claims Deductible”), after which the Verizon Parties and the Verizon Lessors, collectively, shall only be required to indemnify the Acquiror Indemnified Parties for all such Claims in excess of the Pre-Closing Claims Deductible. In no event shall the Verizon Parties or the Verizon Lessors be required to indemnify the Acquiror Indemnified Parties under Section 11.1(a)(i) or Section 11.1(b)(i), taken together, for more than $252,800,000.00 in the aggregate (the “Cap”). Notwithstanding the foregoing, the limitations set forth in this Section 11.5(a) shall not apply to any Claims resulting from or arising out of breaches of the Specified Representations and Warranties or due to fraud, by or on behalf of the Indemnifying Party.
(b) Solely Notwithstanding anything to the contrary in this Agreement, Acquiror and the Tower Operator, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Verizon Indemnified Party with respect to a breach (i) any De Minimis Claim under Section 11.2(a)(i) or Section 11.2(b)(i) and (ii) any Claims under Section 11.2(a)(i) or Section 11.2(b)(i) unless and until the aggregate amount of such Claims (excluding amounts associated with De Minimis Claims) exceeds the Representations and Warranties Deductible, after which Acquiror and the Tower Operator, collectively, shall only be required to indemnify the Verizon Indemnified Parties for all such Claims (excluding amounts associated with De Minimis Claims) in excess of the Operational RepresentationsRepresentations and Warranties Deductible. In no event shall Acquiror or the Tower Operator be required to indemnify the Verizon Indemnified Parties under Section 11.2(a)(i) or Section 11.2(b)(i), Sellers taken together, for more than the Cap in the aggregate. Notwithstanding the foregoing, the limitations set forth in this Section 11.5(b) shall not be liable for apply to any individual Claims resulting from or series arising out of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards breaches of the Threshold Amount)Specified Representations and Warranties or due to fraud, by or on behalf of the Indemnifying Party.
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) shall not exceed Notwithstanding anything to the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceedcontrary in this Article 11, in the aggregateno event shall an Indemnifying Party have liability to any Indemnified Party for any consequential, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c)special, and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2incidental, shall not be limited in amount.
(d) In any claim for indemnification under this Agreementindirect or punitive damages, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings lost profits or similar measures of the Companyitems, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if, and solely each case except as actually paid to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award a claimant in a Third Party Claim against such Indemnified Party of consequentialClaim, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree provided that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) foregoing shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraudlimit recovery for diminution in value of an asset as a result of a breach.
Appears in 2 contracts
Sources: Master Agreement, Master Agreement (American Tower Corp /Ma/)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, except in the case of a claim for Fraud, the Equity Holders’ obligation to indemnify, defend and hold Buyer Indemnified Parties harmless, and Buyer’s obligation to indemnify, defend and hold the Equity Holders Indemnified Parties harmless, shall be limited as follows:
(a) Solely with respect to a breach of the Operational Representations, no No amounts of indemnity shall be payable pursuant to Section 7.1(aSection 9.1(a) or Section 7.2(aSection 9.2(a) unless and until (i) each claim or series of claims arising from the Buyer same or substantially similar facts or circumstances exceeds $50,000 (the “De Minimis Threshold”) and (ii) the applicable Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) 4,000,000 (the “Threshold Deductible Amount”) in the aggregate, after in which point the Buyer case such Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer Losses in excess of the Deductible Amount; provided that amounts of indemnity for Losses pursuant to Section 9.1(a) or Seller LossesSection 9.2(a), respectivelyas applicable, with respect to claims for indemnification pursuant any breach of any Company Fundamental Representation or any Buyer Fundamental Representation, as applicable, shall not be subject to Section 7.1 the De Minimis Threshold or Section 7.2 in excess of the Threshold Deductible Amount.;
(b) Solely In no event shall the aggregate amount of indemnity required to be paid by the Equity Holders hereunder or under any Support Agreement or Option Holder Acknowledgment (i) pursuant to Sections 9.1(a) (other than pursuant to Section 9.1(a) for breach of a Company Fundamental Representation), Section 9.1(b) and, for the avoidance of doubt, Section 5.4 exceed the Indemnity Escrow Amount in the Indemnity Escrow Fund in the aggregate, and (ii) pursuant to Sections 9.1(a) (with respect to a claim for breach of a Company Fundamental Representation), 9.1(c), and 9.1(d) exceed $320,000,000 in the Operational Representationsaggregate (clauses (i) and (ii), Sellers as applicable, the “Indemnification Cap”). If the amount of any Buyer Loss exceeds the applicable Indemnification Cap, no Buyer Indemnified Party shall be entitled to recover any such shortfall from any Equity Holder (it being understood that nothing in this Section 9.5(b) shall limit Buyer’s ability to recover Buyer Losses under the Buyer Rep and Warranty Policy). Without limiting the foregoing, except in the case of Fraud, in no event shall the aggregate amount of indemnity required to be paid by the Equity Holders pursuant to Section 9.1 or otherwise exceed $320,000,000 in the aggregate.
(c) Subject to the other provisions of this Section 9.5, any claim by a Buyer Indemnified Party to recover Buyer Losses hereunder shall be recoverable (i) first, against the Indemnity Escrow Fund pursuant to the terms of the Escrow Agreement and (ii) second, for any claim for Buyer Losses under Section 9.1(a), against the Buyer Rep and Warranty Policy and (iii) third, any remaining amount of Buyer Losses (subject to the Indemnification Cap set forth in Section 9.5(b)(ii) shall be payable by the Equity Holders pro rata based on their respective share of the Merger Consideration pursuant to the terms of the Support Agreements and Option Holder Acknowledgments;
(d) In no event shall the aggregate amount of indemnity required to be paid by the Buyer pursuant to Section 9.2 or otherwise exceed $320,000,000;
(e) The amount of each claim for Buyer Losses or Tax Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to any payments from the Indemnity Escrow Fund shall be limited to, the amount of such Buyer Losses or Tax Losses that remain after deducting therefrom (i) any Tax benefit actually realized by a Buyer Indemnified Party or any Affiliate thereof with respect to Buyer Losses or items giving rise to such claim for indemnification to the extent the Tax benefit is actually realized in the year of the Buyer Loss or item giving rise to such a claim or the following two (2) taxable years, or a prior year and (ii) any third party insurance proceeds (net of any increase in insurance premium with respect thereto) and any indemnity, contributions or other similar payment actually received from any third party with respect thereto;
(f) The amount of indemnity payable pursuant to Section 9.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Closing Statement;
(g) Any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to (i) recover for such Loss under any available third party sources of recovery (including insurance policies), and (ii) mitigate such Loss after becoming aware thereof, and an Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards Loss to the Threshold Amount).extent that it is attributable solely to the Indemnified Party’s failure to mitigate; and
(ch) The aggregate amount No Party shall be deemed to have breached any representation or warranty under this Agreement solely as a result of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(aany alteration, repeal or enactment of any Law after the Closing Date (even if such alteration, repeal or enactment is applied with retroactive effect) shall not exceed the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceed, any change in the aggregateaccounting policies, practices or procedures adopted by Buyer and/or its Affiliates after the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c), and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2, shall not be limited in amount.Closing Date; and
(di) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if, and solely to the extent that, an case where a Buyer Indemnified Party is seeking recovers from any third party any amount in respect of a matter with respect to obtain through indemnification reimbursement which the Equity Holders have indemnified Buyer pursuant to this Article IX (except, for the avoidance of Losses resulting from an award in a Third Party Claim against doubt, for any amount recovered under the Buyer Rep and Warranty Policy), such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Buyer Indemnified Party shall take all commercially reasonable steps promptly pay over to mitigate Losses Stockholders’ Representative, if during the applicable Claims Period or, to the Stockholders’ Representative (on behalf of the Equity Holders), if after the applicable Claims Period, the amount so recovered (but not in respect excess of the amount by which the Equity Holders have indemnified Buyer pursuant to this Agreement) net of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereofof recovery.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraud.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Charles River Laboratories International Inc)
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement, the T-Mobile Parties and the T-Mobile SPEs, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Crown Indemnified Party with respect to (i) any single Claim less than $25,000 (each, a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to “De Minimis Claim”) under Section 7.1(a12.1(a)(i) or Section 7.2(a12.1(b)(i), (ii) any Claims under Section 12.1(a)(i) or Section 12.1(b)(i) (including De Minimis Claims) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess aggregate amount of One Hundred Eighty Five Thousand Dollars (such Claims exceeds an amount equal to $185,000) 25,000,000 (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer Indemnified T-Mobile Parties or and the Seller Indemnified PartiesT-Mobile SPEs, respectivelycollectively, shall only be entitled to recover only Buyer Losses or Seller Losses, respectively, with respect to claims liable for indemnification pursuant to Section 7.1 or Section 7.2 all such Claims in excess of the Threshold Amount.
Representations and Warranties Deductible, (biii) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers Claims under Section 7.1(a12.1(a)(v) shall not exceed unless and until the aggregate amount of such Claims exceeds $5,000,000 (the Indemnification Escrow Amount“Pre-Closing Liabilities Deductible”), or (ii) against Sellers under Section 7.1(b) after which the T-Mobile Parties and the T-Mobile SPEs, collectively, shall not exceed, only be liable for all such Claims in excess of the aggregate, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c)Pre-Closing Liabilities Deductible, and (Biv) the aggregate amount of Seller Losses that may be recovered against Buyers any Claims under Section 7.2, shall not be limited 12.1(a)(i) or Section 12.1(b)(i) in amount.
(d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required an aggregate cumulative amount in excess of an amount equal to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers$125,000,000; provided, however, that this limitation Claims for indemnification (x) that arise out of or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, by or on behalf of the Indemnifying Party, shall not apply if, and solely be subject to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in this sentence of Section 7.5(a)12.5. (b) Notwithstanding anything to the contrary in this Agreement, Section 7.5(bCrown and the Tower Operator, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) and Section 7.5(c) shall not apply any T-Mobile Indemnified Party with respect to (i) any Losses arising De Minimis Claim under Section 12.2(a)(i) or Section 12.2(b)(i), (ii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) (including De Minimis Claims) unless and until the aggregate amount of such Claims exceeds the Representations and Warranties Deductible, after which Crown and the Tower Operator, collectively, shall only be liable for all such Claims in excess of the Representations and Warranties Deductible and (iii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) in an aggregate cumulative amount in excess of an amount equal to $125,000,000; provided, however, that Claims for indemnification (x) that arise out ofof or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, resulting from by or relating on behalf of the Indemnifying Party, shall not be subject to any action or inaction that constitutes fraud.the limitations set forth in this sentence of Section 12.5 SECTION 12.6
Appears in 1 contract
Sources: Master Agreement
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement (except Section 9.5(d)), SM shall have no obligation to indemnify (including any obligation to make any payments to) any Buyer Indemnified Party with respect to a breach to:
(i) any single or series of related or similar Claim less than 0.015% of the Operational RepresentationsConsideration Base Amount (each, no amounts of indemnity shall be payable pursuant to a “De Minimis Claim”) under Section 7.1(a9.1(a)(i);
(ii) or any Claims under Section 7.2(a9.1(a)(i) unless and until the Buyer Indemnified Parties or aggregate amount of such Claims (excluding amounts associated with De Minimis Claims) exceeds an amount equal to 1.0% of the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) Consideration Base Amount (the “Threshold AmountRepresentations and Warranties Threshold”) in the aggregate), after which point SM shall be required to indemnify the Buyer Indemnified Parties or for all such Claims from the Seller Indemnified Partiesfirst dollar (excluding amounts associated with De Minimis Claims) and, respectivelyin no event, shall SM be entitled required to recover indemnify the Buyer Indemnified Parties under Section 9.1(a)(i) for more than 3.0% of the Consideration Base Amount in the aggregate (the “Cap”);
(iii) any Claims under Sections 9.1(a)(iii) and 9.1(a)(iv) unless and until the aggregate amount of such Claims exceeds an amount equal to 1.0% of the Consideration Base Amount (the “Pre-Closing Claims Deductible”), after which SM shall only be required to indemnify the Buyer Losses or Seller Losses, respectively, with respect to claims Indemnified Parties for indemnification pursuant to Section 7.1 or Section 7.2 all such Claims in excess of the Threshold AmountPre-Closing Claims Deductible; and
(iv) any Claims relating to a specific Portfolio Site in excess of fifty percent (50.0%) of the Allocated Site Consideration for such Portfolio Site; provided, however, that, the limitations set forth in this Section 9.5(a) shall not apply to any Claims resulting from or arising out of breaches of the Specified Representations and Warranties or due to fraud, by or on behalf of the Indemnifying Party.
(b) Solely Notwithstanding anything to the contrary in this Agreement, Buyer shall have no obligation to indemnify (including any obligation to make any payments to) any SM Indemnified Party with respect to: (i) any De Minimis Claim under Section 9.2(a)(i); and (ii) any Claims under Section 9.2(a)(i) unless and until the aggregate amount of such Claims (excluding amounts associated with De Minimis Claims) exceeds the Representations and Warranties Threshold, after which Buyer shall be required to a breach indemnify the SM Indemnified Parties for all such Claims (excluding amounts associated with De Minimis Claims). In no event shall Buyer be required to indemnify the SM Indemnified Parties under Section 9.2(a)(i) for more than the Cap in the aggregate. Notwithstanding the foregoing, the limitations set forth in this Section 9.5(b) shall not apply to any Claims resulting from or arising out of breaches of the Operational RepresentationsSpecified Representations and Warranties or due to fraud, Sellers shall not be liable for any individual by or series on behalf of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount)Indemnifying Party.
(c) The aggregate amount of Buyer Losses Notwithstanding anything to the contrary in this Article IX, in no event shall an Indemnifying Party have liability to any Indemnified Party for any consequential, special, incidental, indirect or punitive damages, lost profits or similar items, in each case except as actually paid to a claimant in a Third Party Claim, provided, however, that may be recovered (i) against Sellers under Section 7.1(a) the foregoing shall not exceed the aggregate amount limit recovery for diminution in value of the Indemnification Escrow Amount, or (ii) against Sellers under Section 7.1(b) shall not exceed, in the aggregate, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount an asset as a result of Buyer Losses that may be recovered against Sellers under Section 7.1(c), and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2, shall not be limited in amounta breach.
(d) In any claim for indemnification under this AgreementSections 9.5(a), neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if(b), and solely to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(cc) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraudClaims for Taxes.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Shenandoah Telecommunications Co/Va/)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, the obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless will be limited as follows:
(a) Solely with respect to a breach of the Operational Representations, no amounts of indemnity shall will be payable pursuant to Section 7.1(a) or Section 7.2(a) 10.01 unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall will have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars $3,000,000 (the “Deductible”) in the aggregate, in which case, indemnification shall, subject to the other limitations set forth in this Agreement (including Section 10.05(b) below), be available for Buyer Losses in excess of the Deductible; provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Losses (i) pursuant to Section 10.01(a)(i) with respect to the Fundamental Representations, or (ii) pursuant to Section 10.01(a)(ii), 10.01(a)(iii) and 10.01(a)(iv), in each case, will not be subject to the Deductible;
(b) no amounts of indemnity will be payable pursuant to Section 10.01 unless and until the Buyer Indemnified Parties will have suffered Buyer Losses in excess of $185,000) 1,500,000 (the “Threshold Amount”) in the aggregateaggregate in excess of the Deductible, after in which point case the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall will be entitled to recover only the full amount of Buyer Losses or Seller Losses, respectively, with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 in excess of the Threshold Amount.
Deductible from the first dollar; provided, that, notwithstanding the foregoing, amounts of indemnity for Buyer Losses (bi) Solely pursuant to Section 10.01(a)(i) with respect to a breach of the Operational Fundamental Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) shall not exceed the aggregate amount of the Indemnification Escrow Amount, or (ii) against Sellers under pursuant to Section 7.1(b10.01(a)(ii), 10.01(a)(iii) shall not exceedand 10.01(a)(iv), in each case, will not be subject to the aggregate, the Purchase Price. It is acknowledged and agreed that Threshold Amount;
(Ac) in no event will the aggregate amount of indemnity required to be paid to the Buyer Indemnified Parties pursuant to this Agreement exceed the Indemnity Escrow Amount;
(d) notwithstanding anything set forth herein to the contrary, (i) any indemnification obligation of the Equityholders under this Agreement will be satisfied solely from the Indemnity Escrow Funds and (ii) if the Indemnity Escrow Funds are insufficient to satisfy the Buyer Losses that may be recovered against Sellers and the Buyer Indemnified Parties do not have recourse therefor under Section 7.1(c)the R&W Insurance Policy, and then the Buyer Losses in question will remain unsatisfied;
(Be) for purposes of computing the aggregate amount of Seller indemnifiable claims (i) the amount of each claim for Buyer Losses that may by a Buyer Indemnified Party will be recovered against Buyers under deemed to be an amount equal to, and any payments from the Indemnity Escrow Funds pursuant to Section 7.2, shall not 10.01 will be limited to, the amount of such Buyer Losses and (ii) against Buyer, the amount of each claim for Equityholder Losses by an Equityholder Indemnified Party will be deemed to be an amount equal to, and any payments by Buyer pursuant to Section 10.02 will be limited to, the amount of such Equityholder Losses, in amount.each of clause (i) and (ii), that remain after deducting therefrom (x) any third party insurance proceeds actually received (net of any deductible or related expenses in pursuing such insurance proceeds), and any indemnity, contributions or other similar payment actually received from any third party with respect thereto, and (y) any net cash Tax benefit actually realized in the taxable year of the indemnification payment or any prior taxable year by a Buyer Indemnified Party or any Affiliate thereof with respect to the Buyer Losses or items giving rise to such claim for indemnification;
(df) In the amount of indemnity payable pursuant to Section 10.01 with respect to any Buyer Loss will be reduced to the extent such Buyer Loss is included in the calculation of Closing Merger Consideration;
(g) in any claim for indemnification under this Agreement, neither Sellers nor Buyers shall no party will be required to indemnify any Person for punitive, consequential special, or exemplary damages or Lossesdamages, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation shall not apply if, and solely except to the extent that, an Indemnified Party is seeking for amounts paid to obtain through indemnification reimbursement a third party where any of Losses resulting from an award in the foregoing are awarded pursuant to a Third Party Claim against that is subject to indemnification hereunder;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this ARTICLE X will be required to use commercially reasonable efforts to mitigate such Loss including taking any actions reasonably requested by the Indemnifying Party and an Indemnifying Party will not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate; provided, that an Indemnified Party’s obligation to mitigate any Loss will not include any obligation or requirement that (i) such Indemnified Party or any of consequentialhis or its Affiliates assume or incur any material liability or (ii) would reasonably be expected to materially disrupt, exemplary or punitive damages.otherwise materially affect the business or operations of such Indemnified Party or any of his or its Affiliates;
(ei) Any in any case where a Buyer Indemnified Party recovers from any third party any net amount (or receives any net cash Tax benefit as described in Section 10.05(e)(y)) in respect of a matter with respect to which the Equityholders have indemnified Buyer pursuant to this Agreement, such Buyer Indemnified Party will promptly pay over to the Representative (on behalf of the Equityholders) the amount so recovered (or the amount of such net cash Tax benefit received, as applicable);
(j) in no event shall any Buyer Indemnified Party have any right to indemnification under this Section 10.05 to the extent that the applicable Losses are attributable to Taxes (i) arising in any taxable period (or portion thereof) beginning after the Closing Date (“Post-Closing Tax Period”), (ii) incurred as a result of any transaction outside the ordinary course of business occurring on the Closing Date after the Closing (and for this purpose, the time of Closing shall be determined without regard to the final sentence of Section 2.01), (iii) arising due to the unavailability in any Post-Closing Tax Period of any net operating losses, credits or other Tax attributes from a taxable period (or portion thereof) ending on or before the Closing Date, (iv) that were included in the calculation of Closing Merger Consideration or (v) that are attributable to the manner in which Buyer finances the Transactions; and
(k) any indemnity payment under this Agreement shall pursuant to this ARTICLE X will be treated as an adjustment to the Purchase Price for Tax U.S. federal income tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps . Nothing in this Agreement will limit the liability of a party to mitigate Losses in respect of any claim another party for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraud.
Appears in 1 contract
Sources: Merger Agreement (Trimble Inc.)
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement, the T-Mobile Parties and the T-Mobile SPEs, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Crown Indemnified Party with respect to (i) any single Claim less than $25,000 (each, a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to “De Minimis Claim”) under Section 7.1(a12.1(a)(i) or Section 7.2(a12.1(b)(i), (ii) any Claims under Section 12.1(a)(i) or Section 12.1(b)(i) (including De Minimis Claims) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess aggregate amount of One Hundred Eighty Five Thousand Dollars (such Claims exceeds an amount equal to $185,000) 25,000,000 (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer Indemnified T-Mobile Parties or and the Seller Indemnified PartiesT-Mobile SPEs, respectivelycollectively, shall only be entitled to recover only Buyer Losses or Seller Losses, respectively, with respect to claims liable for indemnification pursuant to Section 7.1 or Section 7.2 all such Claims in excess of the Threshold Amount.
Representations and Warranties Deductible, (biii) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers Claims under Section 7.1(a12.1(a)(v) shall not exceed unless and until the aggregate amount of such Claims exceeds $5,000,000 (the Indemnification Escrow Amount“Pre-Closing Liabilities Deductible”), or (ii) against Sellers under Section 7.1(b) after which the T-Mobile Parties and the T-Mobile SPEs, collectively, shall not exceed, only be liable for all such Claims in excess of the aggregate, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c)Pre-Closing Liabilities Deductible, and (Biv) the aggregate amount of Seller Losses that may be recovered against Buyers any Claims under Section 7.2, shall not be limited 12.1(a)(i) or Section 12.1(b)(i) in amount.
(d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required an aggregate cumulative amount in excess of an amount equal to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers$125,000,000; provided, however, that this limitation Claims for indemnification (x) that arise out of or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, by or on behalf of the Indemnifying Party, shall not apply if, and solely be subject to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in this sentence of Section 7.5(a)12.5.
(b) Notwithstanding anything to the contrary in this Agreement, Section 7.5(bCrown and the Tower Operator, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) and Section 7.5(c) shall not apply any T-Mobile Indemnified Party with respect to (i) any Losses arising De Minimis Claim under Section 12.2(a)(i) or Section 12.2(b)(i), (ii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) (including De Minimis Claims) unless and until the aggregate amount of such Claims exceeds the Representations and Warranties Deductible, after which Crown and the Tower Operator, collectively, shall only be liable for all such Claims in excess of the Representations and Warranties Deductible and (iii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) in an aggregate cumulative amount in excess of an amount equal to $125,000,000; provided, however, that Claims for indemnification (x) that arise out ofof or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, resulting from by or relating on behalf of the Indemnifying Party, shall not be subject to any action or inaction that constitutes fraud.the limitations set forth in this sentence of Section 12.5
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary in this Agreement, the Cumulus Parties, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Buyer Indemnified Party with respect to (a) Solely with respect to a breach any single Claim or group of related Claims arising out of the Operational Representationssame or similar facts and circumstances that result in Losses of less than $40,000 (each, no amounts a “De Minimis Claim”) under Section 11.1(a)(i), but solely in respect of indemnity shall be payable pursuant to representations and warranties that are not qualified by materiality or words of similar import, (b) any Claims under Section 7.1(a11.1(a)(i) or Section 7.2(a(including De Minimis Claims) unless and until the Buyer Indemnified Parties or aggregate amount of such Claims result in Losses in an amount equal to one percent (1.0%) of the sum of (i) the Closing Initial Consideration, and (ii) any Subsequent Closing Consideration actually paid to Seller Indemnified Parties(collectively, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer Indemnified Cumulus Parties or the Seller Indemnified Parties, respectivelycollectively, shall be entitled to recover only Buyer liable for all Losses or Seller Losses, respectively, with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 in excess of the Threshold Amount.
(b) Solely with respect to a breach of the Operational RepresentationsRepresentations and Warranties Deductible, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
and (c) The any Claims under Section 11.1(a)(i) resulting in excess of in an aggregate cumulative amount in excess of Buyer Losses that may be recovered an amount equal to ten percent (10%) of the sum of (i) against Sellers under Section 7.1(a) shall not exceed the aggregate amount of the Indemnification Escrow AmountClosing Initial Consideration, or and (ii) against Sellers under Section 7.1(b) shall not exceed, in the aggregateany Subsequent Closing Consideration actually paid to Seller (collectively, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c“Cap”), and (B) the aggregate amount of Seller Losses that may be recovered against Buyers under Section 7.2, shall not be limited in amount.
(d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers; provided, however, that this limitation Claims for indemnification that arise out of or relate to breaches of the Specified Representations and Warranties or of Section 5.11 or due to Fraud, by or on behalf of the Indemnifying Party, shall not apply if, and solely be subject to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in this sentence of Section 7.5(a11.5. Notwithstanding the foregoing, in no event shall the Cumulus Parties, collectively, be liable for any Losses under this Agreement (including pursuant to this Article 11) in excess of the sum of (x) the Closing Initial Consideration, and (y) any Subsequent Closing Consideration actually paid to Seller. If any Claim may be made both under Section 11.1(a)(i) and under Section 11.1(a)(v), solely for the purposes of this Section 7.5(b) and 11.5 it shall be deemed to be made only under Section 7.5(c) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraud11.1(a)(v).
Appears in 1 contract
Sources: Master Agreement (Cumulus Media Inc)
Liability Limits. (a) Solely Notwithstanding anything to the contrary in this Agreement, the T‑Mobile Parties and the T‑Mobile SPEs, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) any Crown Indemnified Party with respect to (i) any single Claim less than $25,000 (each, a breach of the Operational Representations, no amounts of indemnity shall be payable pursuant to “De Minimis Claim”) under Section 7.1(a12.1(a)(i) or Section 7.2(a12.1(b)(i), (ii) any Claims under Section 12.1(a)(i) or Section 12.1(b)(i) (including De Minimis Claims) unless and until the Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer Losses or Seller Losses, respectively, in excess aggregate amount of One Hundred Eighty Five Thousand Dollars (such Claims exceeds an amount equal to $185,000) 25,000,000 (the “Threshold AmountRepresentations and Warranties Deductible”) in the aggregate), after which point the Buyer Indemnified T-Mobile Parties or and the Seller Indemnified PartiesT-Mobile SPEs, respectivelycollectively, shall only be entitled to recover only Buyer Losses or Seller Losses, respectively, with respect to claims liable for indemnification pursuant to Section 7.1 or Section 7.2 all such Claims in excess of the Threshold Amount.
Representations and Warranties Deductible, (biii) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers Claims under Section 7.1(a12.1(a)(v) shall not exceed unless and until the aggregate amount of such Claims exceeds $5,000,000 (the Indemnification Escrow Amount“Pre-Closing Liabilities Deductible”), or (ii) against Sellers under Section 7.1(b) after which the T-Mobile Parties and the T-Mobile SPEs, collectively, shall not exceed, only be liable for all such Claims in excess of the aggregate, the Purchase Price. It is acknowledged and agreed that (A) the aggregate amount of Buyer Losses that may be recovered against Sellers under Section 7.1(c)Pre-Closing Liabilities Deductible, and (Biv) the aggregate amount of Seller Losses that may be recovered against Buyers any Claims under Section 7.2, shall not be limited 12.1(a)(i) or Section 12.1(b)(i) in amount.
(d) In any claim for indemnification under this Agreement, neither Sellers nor Buyers shall be required an aggregate cumulative amount in excess of an amount equal to indemnify any Person for punitive, consequential or exemplary damages or Losses, including loss of profits, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in value, loss of anticipated profits, interference with Company operations, or loss of lenders, investors or buyers$125,000,000; provided, however, that this limitation Claims for indemnification (x) that arise out of or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, by or on behalf of the Indemnifying Party, shall not apply if, and solely be subject to the extent that, an Indemnified Party is seeking to obtain through indemnification reimbursement of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damages.
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in this sentence of Section 7.5(a)12.5.
(b) Notwithstanding anything to the contrary in this Agreement, Section 7.5(bCrown and the Tower Operator, collectively, shall have no obligation to indemnify (including any obligation to make any payments to) and Section 7.5(c) shall not apply any T‑Mobile Indemnified Party with respect to (i) any Losses arising De Minimis Claim under Section 12.2(a)(i) or Section 12.2(b)(i), (ii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) (including De Minimis Claims) unless and until the aggregate amount of such Claims exceeds the Representations and Warranties Deductible, after which Crown and the Tower Operator, collectively, shall only be liable for all such Claims in excess of the Representations and Warranties Deductible and (iii) any Claims under Section 12.2(a)(i) or Section 12.2(b)(i) in an aggregate cumulative amount in excess of an amount equal to $125,000,000; provided, however, that Claims for indemnification (x) that arise out ofof or relate to breaches of the Specified Representations and Warranties or (y) due to fraud, resulting from by or relating on behalf of the Indemnifying Party, shall not be subject to any action or inaction that constitutes fraud.the limitations set forth in this sentence of Section 12.5
Appears in 1 contract
Sources: Master Agreement (T-Mobile US, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, each Party’s obligation to indemnify, defend and hold any Indemnified Party harmless shall be limited as follows:
(a) Solely with respect to a breach of the Operational Representations, no No amounts of indemnity shall be payable pursuant to Section 7.1(a11.1 unless the amount of Loss suffered by Buyer Indemnified Party related to each individual claim exceeds €139,000 (unless the single occurrence giving rise to Seller’s liability is part of a series of occurrences of the same kind arising out of the same set of facts), and then, subject to the other limitations of this Agreement, to the full extent of such claim;
(b) or No amounts of indemnity shall be payable pursuant to Section 7.2(a) 11.1 unless and until until, after taking into account the other limitations of this Section 11.5, Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall have suffered Buyer indemnifiable Losses or Seller Losses, respectively, in excess of One Hundred Eighty Five Thousand Dollars ($185,000) (the “Threshold Amount”) €300,000 in the aggregate, after in which point the case Buyer Indemnified Parties or the Seller Indemnified Parties, respectively, shall be entitled to recover only Buyer such Losses or Seller Losses, respectively, with respect to claims for indemnification pursuant to Section 7.1 or Section 7.2 in excess of the Threshold Amount.
(b) Solely with respect to a breach of the Operational Representations, Sellers shall not be liable for any individual or series of related Losses which do not exceed Twenty-Five Thousand Dollars ($25,000) (which Losses shall not be counted towards the Threshold Amount).such amount;
(c) The aggregate amount of Buyer Losses that may be recovered (i) against Sellers under Section 7.1(a) In no event shall not exceed the aggregate amount of indemnity required to be paid by Seller to all Buyer Indemnified Parties exceed an amount equal to fifteen percent (15%) of the Indemnification Escrow AmountPurchase Price as adjusted pursuant to Section 3.2;
(d) The limitation amounts set forth in Sections 11.5(a), 11.5(b) and 11.5(c) shall not apply to (i) claims for Losses incurred by Buyer Indemnified Parties resulting from any fraud or willful misconduct of Seller in connection with this Agreement or the Seller Ancillary Documents, or (ii) any claims for indemnification relating to an Excluded Liability;
(e) For purposes of computing the aggregate amount of claims against Sellers under Section 7.1(b) shall not exceed, in the aggregateSeller, the Purchase Price. It is acknowledged amount of each claim by a Buyer Indemnified Party shall be deemed to be an amount equal to, and agreed any payments by Seller pursuant to Section 11.1 shall be limited to, the amount of Losses that remain after deducting therefrom (A) the aggregate amount amount, if any, of Buyer Losses that may be recovered against Sellers under Section 7.1(c)any accrued liability or reserve on the Financial Statements and specifically identified to such Loss or category of such Loss, and (B) the aggregate amount of Seller Losses that may be recovered against Buyers any accrued liability or reserve included in the calculation of the Net Working Capital and specifically identified to such Loss or category of such Loss (excluding any amounts considered under Section 7.2, shall not be limited in amount.clause
(dA) (C) any third party insurance proceeds paid directly by a third party to Buyer or paid by Seller to Buyer following receipt of such proceeds from a third party and any indemnity, contributions or other similar payment payable by any third party with respect thereto, in each case only with respect to insurance policies in existence prior to the Closing and applicable to the Transferred Assets and (D) any net Tax benefit actually recognized by a Buyer Indemnified Party or any Affiliate thereof with respect to the Losses or items giving rise to such claim for indemnification; and
(f) In any claim for indemnification under this Agreement, neither Sellers nor Buyers no Indemnifying Party shall be required to indemnify any Person Indemnified Party for indirect, punitive, special, or consequential or exemplary damages or Lossesdamages, including nor for any loss of profitsprofit or revenue, loss of revenues, loss of any multiple of reduced cash flow or earnings or similar measures of the Company, diminution in valueflow, loss of anticipated profitstenants, interference with Company operations, or loss of lenders, investors or buyersbuyers incurred by such Indemnified Party; provided, however, that this limitation any of the foregoing damages shall not apply ifbe indemnifiable to the extent, and solely only to the extent thatextent, an Indemnified Party is seeking obligated to obtain through indemnification reimbursement pay any such damages as a result of Losses resulting from an award in a Third Party Claim against such Indemnified Party of consequential, exemplary or punitive damagesthird party claim covered by Section 11.3(a).
(e) Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law.
(f) The Indemnified Party shall take all commercially reasonable steps to mitigate Losses in respect of any claim for which it is seeking indemnification and shall use reasonable efforts to avoid any costs or expenses associated with such claim, and, if such costs and expenses cannot be avoided, to use commercially reasonable efforts to minimize the amount thereof.
(g) The Parties acknowledge and agree that the limitations set forth in Section 7.5(a), Section 7.5(b) and Section 7.5(c) shall not apply with respect to any Losses arising out of, resulting from or relating to any action or inaction that constitutes fraud.
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