Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate). (b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action. (c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement. (d) All parties shall use commercially reasonable efforts to mitigate their damages. (e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification. (f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Avaya Inc), Asset Purchase Agreement (Commscope Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' Notwithstanding anything to the contrary herein, Seller shall not have any liability for all claims made Losses under Section 9.2(a10.01(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until unless the aggregate amount of the all Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"for which Seller would be liable under Section 10.01(a), in which case but for this clause (a), exceeds on a cumulative basis, an amount equal to $25,000, and then to the Indemnifying Party shall only be liable for extent of all such Losses in excess of the Threshold, such threshold amount and (ii) in no event shall Seller's liability under Section 10.01(a) exceed $300,000. For the Indemnifying Party shall have no liability for any single claim unless the amount avoidance of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)doubt, and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a10.06(a) shall not apply to Parent's and Buyer's obligations pursuant to any other liability of Seller for Losses under any other provision of Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)10.01.
(b) Seller shall undertake all Remedial Action Following the Closing, the Parties' rights to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property indemnification pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees)this ARTICLE X shall, except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data equitable relief and a final copy generated or prepared in connection with the specific performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies covenants that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall survive Closing, be the sole and exclusive remedy after the Closing Date for damages available to the parties with respect to any matter arising under or in connection with this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by hereby, other than for claims of fraud, intentional misrepresentation, or criminal or intentional misconduct.
(c) Notwithstanding any provision, the maximum liability of Seller under this Purchase Agreement or the transactions contemplated hereby shall not, in any event, exceed the Purchase Price proceeds actually received by Seller hereunder other than with respect to the Designated Remedial Action, other than a claim Seller's intentional misrepresentation or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementfraud.
(d) All parties Notwithstanding any provision herein, neither Seller nor Purchaser shall use commercially reasonable efforts in any event be liable to mitigate their damagesthe other Party or any Indemnitee on account of any indemnity obligation set forth in Section 10.01 or Section 10.02 for any punitive or consequential damages that are not reasonably foreseeable (in each case except as payable to a Third Party).
(e) If there is any outstanding balance on For purposes of calculating the Convertible Note, any amounts payable amount of Losses incurred by Seller to a Buyer an Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay arising out of or resulting from any outstanding amount breach of the Convertible Notea representation or warranty, dollar covenant or agreement, but not for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, purposes of determining whether or not arising from any such breach has occurred, the same event giving rise references to such Indemnified Party's claim for indemnification.
a “Material Adverse Effect,” “material” or materiality (for other correlative terms) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesdisregarded.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Digirad Corp), Asset Purchase Agreement (Digirad Corp)
Limitation on Indemnification. (a) The Indemnifying Party's foregoing indemnification as set out in Sections 10.1 and 10.2 hereof shall not apply to any Loss to the extent that it arises out of, or Parties' liability is based upon, the gross negligence or willful misconduct of the Investor in connection therewith. Except with respect to the Put Option, Section 10.1 and Section 10.2 (and the other applicable provisions of Section 10) will be the sole and the exclusive remedy of the Investor Indemnified Parties with respect to the matters set forth in subsections (a) – (d) of Section 10.2 hereof, and, to the maximum extent possible under applicable Law, the Investor hereby waives any other rights and remedies that the Investor and the Investor Indemnified Parties may have under applicable Law.
(b) Notwithstanding anything to the contrary contained in this Agreement: (a) neither the Company nor the Sponsor Shareholders shall be liable for all claims made under any claim for indemnification pursuant to Section 9.2(a) 10.1 or Section 9.3(a)10.2, as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (Company or the "Threshold")Sponsor Shareholders equals or exceeds US$100,000, in which case whereupon the Indemnifying Investor Indemnified Party shall only be liable entitled to indemnification for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the full amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)Losses, and (iiib) other than with respect the maximum amount of indemnifiable Losses which may be recovered from the Company or the Sponsor Shareholders arising out of or resulting from the causes set forth in Section 10.1 or Section 10.2, as the case may be, shall be an amount equal to Losses based on fraud or intentional misrepresentationUS$30,000,000, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that such amount shall be (i) increased by US$10,000,000 upon the limitations set forth in this Section 9.5(aexercise of all of the Purchased Warrants and, to the extent the Purchased Warrants are not fully exercised, increased by a pro rata proportion of US$10,000,000 equal to the proportion the amount of Purchased Warrants exercised bears to the total amount of Purchased Warrants and (ii) shall not apply reduced on a dollar for dollar basis to Parent's and Buyer's obligations the extent the Investor received any amounts from its exercise of the put right pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out 7 of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Investor Rights Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Starr International Co Inc), Securities Purchase Agreement (China MediaExpress Holdings, Inc.)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability Notwithstanding any provision of this Agreement to the contrary, except in the case of fraud, with respect to the R&W Insurance Policy and pursuant to the Spin-Off documents, the recourse of the Purchaser Indemnified Parties for all indemnification claims made under pursuant to Section 9.2(a11.2 shall be limited exclusively to the Indemnity Shares Amount (and for the avoidance of doubt, no Company Stockholder shall be personally liable for any amount in respect of indemnification pursuant to Section 11.2).
(b) For the purposes of (i) both determining whether a breach or Section 9.3(a)inaccuracy of any representation or warranty of the Company or Purchaser and Merger Sub, as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(aAgreement occurred and (ii) shall not apply calculating Losses to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to which any Indemnified Parties are entitled under this Article XI resulting from a breach of any representation or warranty of the Company or Purchaser and Merger Sub, as applicable, contained in this Agreement, any and all material adverse effect, materiality or Company Material Adverse Effect, Purchaser Material Adverse Effect and similar exceptions and qualifiers set forth in Sections 3.1 (Organization)any such representations and warranties shall be disregarded, 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior except with respect to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be “Company Material Adverse Effect” in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionSection 5.6.
(c) The Other than in the case of fraud, the maximum aggregate indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties obligation of Purchaser pursuant to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does shall not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementexceed Twenty-Five Million Dollars ($25,000,000).
(d) All parties No Purchaser Indemnified Party shall have any right to indemnification hereunder with respect to any Loss or alleged Loss to the extent such Loss or alleged Loss is included in the calculation of Company Net Cash, Company Net Indebtedness or Company Net Working Capital.
(e) In the event of any Loss that may give rise to an indemnification obligation hereunder, the Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable measures to mitigate the consequences of such Loss. Without limiting the generality such Indemnified Party shall use commercially reasonable efforts to mitigate their damages.
(e) If there is obtain such proceeds, benefits and recoveries, including seeking full recovery under all insurance policies issued by unaffiliated third parties covering any outstanding balance on Loss, to the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights same extent as it would if such Loss were not subject to indemnification under this Article IX Agreement. Notwithstanding anything to the contrary in this Agreement, the amount of any indemnified Losses shall not otherwise be subject calculated after giving effect to set-off for any claim insurance proceeds recoverable from unaffiliated third parties by the Indemnifying Indemnified Party against (or any Indemnified Party, whether or not arising from the same event giving rise of its Affiliates) with respect to such Indemnified Party's claim for indemnificationLoss.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrarycontrary contained herein, in no party event shall be liable the amount of the indemnification payments made by Purchaser pursuant to Section 11.3, together with the amount of the Aggregate Adjustment Cash Amount (if any), exceed an amount equal to 19.9% of the product of the Purchaser Share Price multiplied by the Purchaser Shares issued to the other party for Company Stockholders pursuant to this Agreement (taking into account any specialPurchaser Shares released to the Company Stockholders from the Adjustment Escrow Shares Amount, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that but excluding the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesIndemnity Shares Amount).
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary herein, except with respect to fraud or intentional misrepresentation, (i) the Indemnifying Party Seller shall not have no any liability for such claims until under Section 10.01(a) unless the aggregate amount of the all Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"for which Seller would be liable under Section 10.01(a), in which case the Indemnifying Party shall only be liable but for Losses in excess of the Thresholdthis clause (i), (ii) the Indemnifying Party shall have no liability for any single claim unless the exceeds on a cumulative basis, an amount of Losses for such claim exceeds Fifty Thousands Dollars equal to fifty thousand dollars ($50,000), and then only to the extent of any such excess, and (iiiii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' Seller’s aggregate liability for all such claims under Section 10.01(a) shall not exceed One Hundred Twenty Five Million Dollars in no event exceed, on a cumulative basis, an amount equal to four million dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate4,000,000).
(b) Seller shall undertake all Remedial Action Following the Closing, the Parties’ rights to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property indemnification pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees)this ARTICLE X shall, except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data equitable relief and a final copy generated or prepared in connection with the specific performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies covenants that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall survive Closing, be the sole and exclusive remedy available to the Parties with respect to any matter arising under or in connection with this Agreement or the transactions contemplated hereby, other than for claims of fraud. Purchaser hereby waives, from and after the Closing Date for damages available Date, to the parties to this Purchase Agreement for breach fullest extent permitted under applicable Law, any and all rights, claims and causes of action it or any of its Affiliates may have against Seller and its Affiliates arising under or based upon this Agreement, the terms, conditions, representations or warranties contained hereinAncillary Agreements, any rightdocument or certificate delivered in connection herewith, claim the Products, the Acquisition, the Acquired Assets and the Assumed Liabilities, or action arising from the transactions contemplated by this Purchase Agreement any federal, state, local or with respect foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, indemnification provisions set forth in this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral AgreementARTICLE X).
(dc) All parties shall use commercially reasonable efforts to mitigate their damagesNOTWITHSTANDING ANY PROVISION HEREIN, NEITHER SELLER NOR PURCHASER SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ANY INDEMNITEE ON ACCOUNT OF ANY INDEMNITY OBLIGATION SET FORTH IN SECTION 10.01 OR SECTION 10.02 FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (EXCEPT TO THE EXTENT THE PARTY OR INDEMNITEE IS REQUIRED TO PAY SUCH TYPES OF DAMAGES TO A THIRD PARTY), INCLUDING LOSS OF FUTURE REVENUE OR INCOME, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY RELATING TO THE BREACH OR ALLEGED BREACH OF THIS AGREEMENT, OR DIMINUTION OF VALUE OR ANY DAMAGES BASED ON ANY TYPE OF MULTIPLE.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Galena Biopharma, Inc.), Asset Purchase Agreement (Galena Biopharma, Inc.)
Limitation on Indemnification. Notwithstanding anything to the contrary contained in this Agreement:
(a) The an Indemnifying Party's or Parties' liability Party shall not be liable for all claims made under any claim for indemnification pursuant to Section 9.2(a) or Section 9.3(a), as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Losses incurred shall exceed Indemnifying Party equals or exceeds Two Million Five Hundred Fifty Thousand Dollars ($2,500,000) (the "Threshold"250,000), in which case the Indemnifying Party shall only be liable only for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of such Losses for such claim that exceeds Two Hundred Fifty Thousands Thousand Dollars ($50,000), 250,000) and (iii) subject to the other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)limitations set forth herein; provided, however, that the limitations maximum aggregate amount of indemnifiable Losses which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in this Section 9.5(a9.2(a), on the one hand, or Section 9.3(a), on the other hand, as the case may be, shall be an amount equal to Eight Million Dollars ($8,000,000) (the “Cap”), provided, further, that the foregoing limitations shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related relating to (i) the inaccuracy or breach of any Fundamental Representation or (ii) any representation or warranty in the event of Fraud;
(b) except as otherwise provided in this Section 9.5, the maximum aggregate amount of Losses which may be recovered from the Indemnifying Party arising out of or relating to this Agreement shall be limited to an aggregate amount equal to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.Purchase Price;
(c) The indemnification provided notwithstanding anything to the contrary herein, it is intended that the provisions of this Agreement will not result in a duplicative payment of any amount required to be paid under this Agreement such that a Party would receive payment on more than one occasion in respect of the same specific Loss and this provision will be construed accordingly;
(d) for purposes of this Article IX 9, the representations and warranties of either Party qualified by any references to materiality, material adverse effect or any similar qualifier shall be deemed to have been made with such qualification for purposes of determining whether a breach occurred but, if such breach has occurred, shall be deemed to have been made without such qualification for purpose of determining the amount of any Losses resulting from any such breach;
(e) the amount of any and all Losses under this Article 9 shall be reduced by the net Tax benefit actually realized by the Indemnified Party as a result of a deduction with respect to such Loss in the Tax period in which such Loss was incurred or the two (2) Tax periods immediately following the last day of such Tax period (with a 25% effective Tax rate being assumed for this purpose). The net Tax benefit that is actually realized by the Indemnified Party for a Tax period shall be the sole and exclusive remedy after excess, if any, of (x) the Closing Date Indemnified Party’s cumulative liability for damages available Taxes through the end of such Tax period, calculated by excluding any Tax items attributable to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or payment with respect to the Designated Remedial ActionLoss at issue for all Tax periods, other than a claim or action based on fraud or intentional misrepresentation; providedover (y) the Indemnified Party’s actual cumulative liability for Taxes through the end of such Tax period, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy calculated by taking into account any Tax items attributable to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party payment with respect to its indemnification obligations under this Article IX shall first be applied the Loss at issue for all Tax periods (to repay any outstanding amount the extent permitted by relevant Tax Law). For the avoidance of doubt, the result of the Convertible Note, dollar for dollar, until foregoing is to treat such Tax items as the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off last items claimed for any claim by Tax period; and
(f) each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the Indemnifying Party against any Indemnified Party, whether or not arising from minimum extent necessary to remedy the same event breach giving rise to such Indemnified Party's claim for indemnificationLoss.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. Notwithstanding anything to the contrary set forth in Section 11.1(a) of this Agreement or elsewhere in this Agreement, (a) The Indemnifying Party's Purchaser hereby expressly waives, relinquishes and releases any right or Parties' remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Seller for Losses that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Seller’s representations or warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Purchaser nevertheless proceeds with the Closing hereunder, (b) Seller’s liability for the breach of any representations or warranties of Seller contained in Articles II or VIII or pursuant to Section 11.1(a)(i) of this Agreement, shall be limited to claims in excess of $1,500,000 in the aggregate; upon reaching such claims which exceed $1,500,000 in the aggregate, Purchaser may pursue such claims against Seller for Losses resulting from Seller’s breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims) and (c) Seller’s aggregate liability for all claims made under Section 9.2(a) arising out of any breach of such representations or Section 9.3(a)warranties shall not exceed $62,100,000, as applicable, except that there shall be subject to the following limitations: (i) the Indemnifying Party shall have no cap on Seller’s liability for such claims until the aggregate amount breaches of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"representations or warranties set forth in Sections 8.1(a), (b), or (c) hereof or in which case any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the Indemnifying Party term “actual knowledge” of Purchaser shall only be liable mean the actual knowledge of T▇▇▇ Will with no duty of inquiry or investigation. Notwithstanding anything to the contrary set forth in this Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Purchaser’s representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser’s liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be limited to claims in excess of $1,500,000 in the Thresholdaggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for Losses resulting from Purchaser’s breach of any representations and warranties under this Agreement (ii) including the Indemnifying Party shall have no liability for any single claim unless the amount first $1,500,000 of Losses for such claim exceeds Fifty Thousands Dollars ($50,000claims), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' . Purchaser’s aggregate liability for all claims arising out of any breach of such claims representations or warranties shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided62,100,000, however, except that there shall be no cap on Purchaser’s liability for breaches of the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) representations or to Seller's obligations with respect to breach of any representation or warranty warranties set forth in Sections 3.1 (Organization8.2(a), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementhereof.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. Notwithstanding anything to the contrary in Section 7.3 or 7.4 (a) The no Indemnifying Party's or Parties' Person shall have any liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims corresponding Indemnified Person until the aggregate amount Losses of such Indemnified Person exceed $50,000, after which the Losses incurred Indemnified Persons shall exceed Two Million Five Hundred Thousand Dollars be entitled to all such Losses; and ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (iib) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth indemnity provided in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX 7.3 shall be the sole and exclusive remedy after of the Closing Date Purchaser Indemnified Persons for damages available Losses relating to any breach by the parties to this Purchase Agreement for breach Sellers of any of the termsrepresentation or warranty, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance covenant or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything provision contained in this Purchase Agreement Agreement, and any such remedies or Losses shall be limited to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase AgreementEscrow Fund; provided, however, that nothing contained in this Section 7.5 shall in any way limit, impair, modify or otherwise affect the foregoing rights of the Purchaser Indemnified Persons (including rights available under the Securities Act or the Exchange Act) nor shall not there be construed any limitation of liability of the Indemnifying Persons in connection with any of such rights of the Purchaser Indemnified Persons (A) to preclude recovery by bring any claim, demand, suit or cause of action otherwise available to the Purchaser Indemnified Party Persons based upon an allegation or allegations that the Indemnifying Persons, or any of them, had an intent to defraud or made a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with respect to Losses (i) directly incurred from Third Party Claims this Agreement and the transactions contemplated hereby or (iiB) for actual lost profits to enforce any Order of a Court of competent jurisdiction which finds or incidental damagesdetermines that the Indemnifying Persons, or any of them, had an intent to defraud or made a willful misrepresentation or omission of a material fact in connection with this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Orchid Cellmark Inc)
Limitation on Indemnification. Notwithstanding any other provision of this Agreement to the contrary, in no event shall Losses include a party's incidental or consequential damages. Neither Sellers nor Buyer shall be liable to the other in respect of any indemnification hereunder except to the extent that (a) The Indemnifying Party's or Parties' liability for all claims made the aggregate Losses under Section 9.2(athis Agreement of Sellers (taken as a whole) or Section 9.3(a)Buyer, as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million exceeds Five Hundred Thousand Dollars ($2,500,000500,000) (the "ThresholdBasket Amount"), in which case and then only to the Indemnifying Party shall only be liable for Losses in excess extent of the Threshold, (ii) excess over the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)Basket Amount, and (iiib) the aggregate amount of such indemnification, together with all other indemnification payments by the indemnifying party, for Losses is less than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Three Million Dollars ($125,000,0003,000,000) (the "Indemnity Cap"); providedPROVIDED, howeverHOWEVER, that (i) any Losses incurred by Sellers in connection with Buyer's failure to comply with the limitations covenants, agreements and indemnities set forth in this Section 9.5(aSECTION 2.8.1 and (ii) any amounts owing in connection with the Final Net Working Capital shall not be subject to the Basket Amount or the Indemnity Cap. Notwithstanding anything to the contrary set forth herein or otherwise, Buyer acknowledges and agrees that the Basket Amount and the Indemnity Cap shall be applicable to all of the Sellers on a collective basis and not individually. Each party (a "recipient party") shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(bnotify the other party (the "representing party") or to Seller's obligations with respect to breach reasonably promptly of any representation or warranty set forth in Sections 3.1 perceived breach by the representing party of which the recipient party has knowledge of any representations and warranties, covenants, and agreements and of any Losses (Organization), 3.3 (Authorizationincluding a brief description of the same) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing the recipient party caused thereby. In the event of any breach that is cured prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection accordance with the performance terms of this Agreement, the Designated Remedial Action. Seller representing party shall have no obligation hereunder under SECTION 12.2 or SECTION 12.3 or otherwise to undertake Remedial Action which exceeds indemnify the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or recipient party with respect to such Losses. In addition, each recipient party will specify in writing to the Designated Remedial Actionrepresenting party any perceived breach by the representing party of any representations and warranties, other than covenants, and agreements and of any Losses (including a claim brief description of the same) of the recipient party caused thereby. In the event that the recipient party fails to so notify the representing party of any such breach of which the recipient party has knowledge, the representing party shall have no obligation under SECTION 12.2 or action based on fraud SECTION 12.3 or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a otherwise to indemnify the recipient party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationLosses.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Asset Purchase Agreement (Chancellor Broadcasting Licensee Co)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability Any provision of this Agreement to the contrary notwithstanding, no claim for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, indemnification by Purchaser and/or Parent against Seller and/or Shareholders shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims valid and assertible unless and until the aggregate amount of the Losses incurred shall exceed Two Million all claims sought by Purchaser and/or Parent against Seller and/or Shareholders exceeds One Hundred Seventy-Five Hundred Thousand Dollars ($2,500,000175,000) (the "Threshold"“Threshold Amount”), in after which case Purchaser and/or Parent may seek indemnification for the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the full amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)claims, including the Threshold Amount; and (iii) other than with respect to Losses based on fraud or intentional misrepresentationprovided further, that in no event shall the Indemnifying Party's or Parties' aggregate liability for all such claims shall not under this Article 9 of Seller and the Shareholders exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e5,000,000) (ERISA Affiliatethe “Cap”).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Neither Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any indirect, special, punitiveincidental, exemplary consequential (including lost profits) or consequential loss punitive damages (“Consequential Damages”) claimed by such other Party resulting from such first Party’s breach of its representations, warranties or damage arising out covenants hereunder, except in the case of a Third Party Claim where such Consequential Damages are awarded to the third party. Notwithstanding any provision of this Purchase AgreementAgreement to the contrary, the Threshold Amount and the Cap shall not apply to a claim for indemnification arising from (i) fraud or intentional misrepresentation of a material fact; provided(ii) a breach of any of Sections 4.1, 4.10, 4.16, 4.19, or 4.20; or (iii) matters arising under 9.1(b), (c) and (d). Provided, however, that the foregoing with respect to any Third Party Claim related to any breach of, or inaccuracy in, any representation or warranty of Seller or Shareholders contained in Section 4.20 in which Purchaser successfully defends such claim without necessity of paying damages, settlement costs, fines or similar Losses, then Purchaser shall not be construed entitled to preclude recovery by seek indemnification for the Indemnified costs, fees and expenses associated with successfully defending such Third Party Claim; provided, further, that this shall not otherwise limit Purchaser from seeking indemnification with respect to any Losses (i) directly incurred from Third Party Claims related to any breach of, or (ii) for actual lost profits inaccuracy in, any representation or incidental damageswarranty of Seller or Shareholders contained in Section 4.20.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's Notwithstanding anything to the contrary contained in this Agreement in any of the Schedules attached hereto and/or in any of the certificates or Parties' liability for all claims made under documents delivered in connection herewith, and except as provided in Section 9.2(a6.5(b) or Section 9.3(aand (d), Seller's total obligation and liability under this Agreement, including, without limitation, its indemnification obligation and liability under this Article 6, to either and/or both of the other parties to this Agreement and/or any successors or assigns of the other parties hereto and/or any of their respective subsidiaries, affiliates, partners, shareholders, directors, officers, employees or agents on account of or as applicablea result of any of the Environmental Representations, including, without limitation, any Specified Conditions and/or any Asserted Liability or Environmental Law Violation thereunder or in connection therewith, shall be subject to not exceed under any circumstances, individually or in the following limitations: (i) aggregate, the Indemnifying Party shall have no liability for such claims until the aggregate amount sum of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ONE MILLION AND NO/100 DOLLARS ($2,500,0001,000,000) (the "ThresholdAPPLICABLE ENVIRONMENTAL CAP"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior Notwithstanding anything to the Closing Date at contrary contained in this Agreement, in any of the Nebraska Property Schedules attached hereto and/or in any of the certificates or documents delivered in connection herewith, and except as provided in Section 6.5(a) and ("Designated Remedial Action") that is necessary d), Seller's total obligation and liability under this Agreement, including, without limitation, its indemnification obligation and liability under this Article 6, to comply with all applicable Environmental Law either and/or both of the other parties to this Agreement and/or any successors or assigns of the other parties hereto and/or any of their respective subsidiaries, affiliates, partners, shareholders, directors, officers, employees or agents on account of or as may currently be in effect a result of any of the Company Capitalization Representations shall not exceed under any circumstances, individually or may come into effect in the future until such time as aggregate, the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over sum of SIXTEEN MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($16,150,000) (the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees"APPLICABLE CAPITALIZATION CAP"), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided Notwithstanding anything to the contrary contained in this Agreement, in any of the Schedules attached hereto and/or in any of the certificates or documents delivered in connection herewith, Buyer's and Parent's total obligation and liability under this Agreement, including, without limitation, its indemnification obligation and liability under this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available 6, to the parties to this Purchase Agreement for breach Seller and/or any successors or assigns of Seller and/or any of its subsidiaries, affiliates, partners, shareholders, directors, officers, employees or agents on account of or as a result of any of the termsBuyer Capitalization Representations, conditionsshall not exceed under any circumstances, representations individually or warranties contained hereinin the aggregate, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000) (the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement"APPLICABLE BUYER CAP").
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything to the contrary contained in this Purchase Agreement Agreement, the obligation of Seller to the contraryindemnify Buyer pursuant to Sections 6.2(a), no party shall be liable to the other party for any specialand its liability with respect thereto, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery limited in any way by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesPeriod.
Appears in 1 contract
Limitation on Indemnification. Notwithstanding anything to the contrary contained herein, Seller shall have no obligation to indemnify Buyer pursuant to (a) The Indemnifying Party's or Parties' Section 16.4(i) (excluding Seller’s liability for all claims made indemnification under Section 9.2(a16.4(i) or Section 9.3(a)for breaches of the Fundamental Representations) unless, as applicable, shall be subject and then only to the following limitations: extent that, (i) the Indemnifying Party shall have no liability for such claims until any individual claim exceeds Fifty Thousand Dollars ($50,000) and (ii) the aggregate amount losses to which Buyer would be entitled to indemnification (but for the provision of this Section 16.5) exceed a deductible equal to three percent (3%) of the Losses incurred shall Base Purchase Price and (b) Section 16.4(ix) unless, and then only to the extent that, the aggregate losses to which Buyer would be entitled to indemnification (but for the provisions of this Section 16.5) exceed Two Million Five a deductible equal to One Hundred Thousand Dollars ($2,500,000) (100,000). Notwithstanding anything to the "Threshold")contrary contained herein, in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' Seller’s aggregate liability for all such claims the indemnification under (x) Section 16.4(i) above shall not exceed One Hundred Twenty Five twenty (20%) of the Base Purchase Price, except for Seller’s liability for indemnification under Section 16.4(i) for breaches of the Fundamental Representations, (y) Section 16.4(ix) above shall not exceed Two Million Dollars ($125,000,0002,000,000) and (z) Sections 16.4(ii) through (vi) (after taking in account and including the amount of Seller’s aggregate liability for indemnification under Section 16.4(i) for breaches of any and all representations and warranties that are not Fundamental Representations and Section 16.4(ix); provided, however, that ) shall not exceed the limitations Base Purchase Price. Nothing in this Article 16 shall limit or otherwise modify the liability of Seller for breach of the special warranty of title set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach the Conveyances. For purposes of determining both the amount of Claims incurred by any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out member of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data Group and whether there has been a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of Seller’s representations and warranties for which any member of the termsBuyer Group is entitled to indemnification under Section 16.4, conditions, any materiality qualifiers in Seller’s representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; shall be disregarded (provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy each reference to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid “Material Contracts” in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing Section 5.6 shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesdisregarded).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability aggregate amount of the Losses required to be paid by the Company and the Members pursuant to Section 12.1 hereof shall not exceed the amount of the Purchase Price; provided, however, that no Member shall be liable for all claims made more than such Member’s Pro Rata share of any specific Loss nor shall any Member be liable, in the aggregate, for such Losses pursuant to Section 12.1 that are in excess of such Member’s Pro Rata Basis of the Purchase Price.
(b) The NovaMed Indemnified Parties shall not be entitled to indemnification under Section 9.2(a12.1(a) or and Section 9.3(a), as applicable, shall be subject to the following limitations: (i12.1(g) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the all Losses incurred shall exceed thereunder (on a cumulative basis) exceeds Two Million Five Hundred Thousand Dollars ($2,500,000200,000) (the "Threshold"“Basket Amount”), in which case the Indemnifying Party Company and the Members shall be obligated to indemnify the NovaMed Indemnified Parties only be liable for Losses in the excess of the Thresholdaggregate amount of all such Losses over the Basket Amount.
(c) The Seller Indemnified Parties shall be entitled to indemnification under Section 12.2(a) and Section 12.2(b) only if the aggregate amount of all Losses thereunder (on a cumulative basis) exceeds the Basket Amount, in which case NovaMed shall be obligated to indemnify the Seller Indemnified Parties only for the excess of the aggregate amount of all such Losses over the Basket Amount.
(iid) the Indemnifying Party The rights set forth in this Article XII shall have no liability be each party’s sole and exclusive remedy for any single claim unless or dispute relating to any breach of a representation, warranty or covenant by the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)parties under this Agreement; provided, however, that the limitations set forth in this Section 9.5(a) 12.6 shall not apply apply, and the aggrieved party shall have all remedies available at law and in equity, in the case of (i) fraud or intentional misrepresentation by a party hereto, or (ii) any claim or dispute arising under or relating to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)Article XI hereof.
(be) Seller Any party entitled to indemnification hereunder shall undertake take all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is all indemnifiable Losses upon and after becoming aware of any outstanding balance on the Convertible Note, any amounts payable by Seller event which would reasonably be expected to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving give rise to such Indemnified Party's claim for indemnificationany Losses hereunder.
(f) Notwithstanding anything contained to the contrary herein, nothing in this Purchase Agreement to the contrary, no party Section 12.6 shall be liable deemed to the other party limit or impair NovaMed’s rights under Article XI hereof. In addition, for any special, punitive, exemplary or consequential loss or damage arising out purposes of this Purchase Agreement; providedSection 12.6, however, that the foregoing in no event shall not Losses be construed to preclude recovery by the Indemnified Party with respect include any remedies paid to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesNovaMed under Article XI.
Appears in 1 contract
Sources: Purchase Agreement (Novamed Inc)
Limitation on Indemnification. (a) The Indemnifying Party's Notwithstanding any other provision hereof or Parties' liability for of any applicable law, Buyer shall not be entitled to make a claim against the Seller as a result of a breach of representation, warranty or covenant which survives the Closing pursuant to Section 4 hereof against Seller unless such Claim, together with all claims made other Claims of Buyer under Section 9.2(a) or Section 9.3(a)15.2 hereof, as applicablewell as all Claims under the Asset Purchase Agreement, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until exceed in the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars $200,000.00 ($2,500,000) (the "Threshold"), in which case Buyer shall be entitled to the Indemnifying Party shall only be liable for Losses in excess entirety of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000Claims); provided, however, that the limitations set forth in this Section 9.5(a(i) such $200,000.00 minimum threshold with respect to indemnifiable Damages shall not apply to Parent's and Buyer's obligations pursuant any Claim for indemnification made by Buyer under this Agreement with respect to (w) the breach or inaccuracy of any of the representations or warranties contained in Section 5.1(b4.1 (Organization, Standing in Authority), Section 4.2 (Title), Section 4.3 (Litigation) or Section 4.6 (Taxes), (x) the gross negligence, willful misconduct or fraud of Seller, (y) any Excluded Obligation, or (z) the failure of Seller to pay the amount of any adjustment to the Purchase Price in accordance with the provisions of this Agreement (the items described in the immediately preceding clauses (w), (x), (y) and (z), collectively, the "Seller Retained Liabilities" and (ii) except with respect to an indemnification obligation in respect to a Seller Retained Liability, Seller's indemnification obligation for Damages under Section 15.2 of this Agreement (including, without limitation, indemnification obligations with respect to breach environmental Claims under Section 4.22) shall not exceed in the aggregate (including Claims made under the Asset Purchase Agreement) $3,000,000.00. The amount of any representation or warranty set forth in Sections 3.1 indemnifiable Damages under Section 15.2 shall be reduced by (Organizationi) any insurance proceeds actually received with respect thereto (it being understood that after the satisfaction for indemnifiable Damages, hereunder, Buyer shall assign to Seller all of its right to unpaid insurance proceeds with respect to insurance coverage, but only to the extent applicable to such Damages), 3.3 and (Authorizationii) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases the value of Hazardous Substances existing prior tax benefits actually obtained by Buyer, including without limitation by way of exclusion from income, deduction, credit or refund, or other taxable periods as a result of any adjustment. Notwithstanding anything to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be contrary in effect this Agreement or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Asset Purchase Agreement, Buyer shall provide be entitled to satisfy any Claim for indemnification under this Agreement or the Asset Purchase Agreement, except any indemnification obligation with respect of a Seller with commercially reasonable access Retained Liability which shall be paid in cash or applied as an offset to the Nebraska Property Purchase Price, by applying and offsetting such indemnification obligation against the Three Million Dollars ($3,000,000.00) of Preferred Membership Interests held in escrow pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action terms of this Agreement and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Asset Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Real Property Purchase and Sale Agreement (Peninsula Gaming Corp)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) Except as set forth in Section 5.2(c)(iii), the Indemnifying Party total amount Sellers shall have no liability be required to pay in indemnification shall be equal to the fifty percent (50%) of the Purchase Price.
(ii) Notwithstanding anything to the contrary in this Article V, Sellers shall not be required to indemnify the Purchaser Indemnified Parties in respect of any Losses for such claims which indemnity is solely claimed under Section 5.2(a)(i), unless and until the aggregate amount of the all such Losses incurred shall exceed Two Million Five exceeds One Hundred Thousand Dollars ($2,500,000100,000) (the "“Threshold"”); provided, in which case that if the Indemnifying Party aggregate of such Losses claimed exceeds the Threshold then Sellers shall only be liable obligated to indemnify the Purchaser Indemnified Parties for those Losses in excess of One Hundred Thousand Dollars ($100,000) (the Threshold“Deductible”).
(iii) Notwithstanding anything to the contrary in this Article V, the Deductible and Threshold and Sellers indemnification obligations shall be unlimited with respect to: (i) any Losses relating to breaches of the Fundamental Representations; (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000claims under Section 5.2(a) other than Section 5.2(a)(i), ; and (iii) other than any facts or circumstances which constitute fraud, or intentional breach or omission with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)of any Seller.
(biv) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior Notwithstanding anything to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be contrary in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that this Article V, no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which indemnification shall be provided due for any item which is accounted for an adjustment to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionWorking Capital.
(cv) The indemnification provided Notwithstanding anything to the contrary in this Article IX V, no indemnification shall be due for any Loss which is covered by (1) an applicable third-party warranty or (2) a policy of insurance in favor of Company, if in the sole case of both (c)(v)(1) and exclusive remedy after (c)(v)(2), such Loss is paid for the Closing Date for damages available benefit of Purchaser by such insurance company or warranty provider without dispute or condition, provided that any insurance deductible or cost of obtaining warranty service paid in respect of such Losses shall be included in the Threshold and Deductible calculations contemplated by Section 5.2(c)(ii). Provided that if Sellers pay an indemnity claim prior to expiration to the parties 1 year time period specified in the Escrow Agreement, and within the time period covered by a policy on insurance or an applicable third party warranty, and the insurer or warranty provider has disputed payment of such claim, then Purchaser shall assign such claim to this Purchase Agreement Sellers and reasonably cooperate with Sellers in the event Sellers proceed against such insurer or warranty provider for breach reimbursement of any of the terms, conditions, representations or warranties contained herein, any right, such claim or action arising from the transactions contemplated paid by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral AgreementSellers.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Hickory Tech Corp)
Limitation on Indemnification. Notwithstanding anything contained herein to the contrary, before taking recourse against the assets of any Contributor and subject to the limitations set forth in the following sentences of this Section 11.4, the Indemnified Parties shall look first to available insurance proceeds (including without limitation any title or environmental insurance proceeds, if applicable) in accordance with Section 11.2(b) hereof, and then to indemnification under this Article 11 (and agree to treat any return of CROP Common Units (valued based on the net asset value publicly disclosed by CCI for the end of the month immediately preceding the date of such return as adjusted to extent necessary to give effect to the Losses) in satisfaction of indemnification obligations hereunder as an adjustment to the Consideration delivered to Contributor hereunder). Notwithstanding anything to the contrary in this Agreement, (a) The Indemnifying Party's no Contributor shall be liable to the Indemnified Parties for any special, punitive, exemplary, incidental or Parties' liability consequential damages or damages based on multiples of earnings except to the extent actually awarded to a third party in connection with a third-party claim for which indemnification hereunder is otherwise available, (b) except as provided in the last sentence of this Section 11.4, no Contributor shall be liable for any Losses unless and until the Indemnified Parties shall have incurred Losses and Approved CCI Losses (as defined in the Merger Agreement) in an aggregate amount exceeding $5,000,000, after which point the Contributors shall be liable for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be such Losses (subject to the following limitations: applicable terms and conditions of this Article 11, including the limitations in clause (c) below), including the initial $5,000,000 and (c) in no event shall (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the all Losses incurred indemnifiable under this Article 11 and all Approved CCI Losses exceed $30,000,000; it being understood that once such cap has been reached, no Contributor shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable have any further liability for Losses in excess of the Thresholdindemnification hereunder, (ii) the Indemnifying Party shall have no aggregate liability for of any single claim unless Contributor under this Article 11 exceed the amount value of Losses for the portion of the OP Unit Consideration received by such claim exceeds Fifty Thousands Dollars ($50,000)Contributor at, and as of, the Closing or (iii) any Contributor be liable for or required to pay for any Loss arising from or attributable to any Party other than itself and its Contributed Entity. In the event the Closing occurs, in no event shall any Party be entitled to rescission of the transactions consummated hereby. The sole and exclusive remedy against the Contributors and the Contributed Entities for damages of Indemnified Parties and any other Persons with respect to Losses based on fraud any and all claims for any breach of any representation, warranty, covenant or intentional misrepresentationagreement set forth herein or otherwise arising out of this Agreement or the transactions contemplated hereby shall be pursuant to, and subject to the limitations of, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)indemnification provisions set forth in this Article 11, except in the case of intentional common law fraud; provided, however, that this sentence shall not limit any Person’s rights for specific performance as provided in Section 12.11. The Parties acknowledge and agree that any Losses indemnifiable pursuant to this Article 11 shall constitute “Pre-Merger Transaction Losses” (as defined in the Merger Agreement). Notwithstanding the foregoing, any Losses relating to a breach of Section 7.11 shall not be subject to the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
clause (b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesSection 11.4.
Appears in 1 contract
Sources: Internalization Agreement (Cottonwood Communities, Inc.)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability provisions for all claims made indemnity under Section 9.2(aSections 9.1(b) or Section 9.3(aand 9.2(b) shall be effective only when the Loss related to any individual item for which indemnification is sought exceeds $10,000 (the “DeMinimis”), as applicable, shall be subject to and such Losses for which indemnification is sought (excluding any Losses that do not exceed the following limitations: (iDeMinimis) the Indemnifying Party shall have no liability for such claims until exceed U.S. $2,100,000 in the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"“Indemnification Basket”), in which case the Indemnifying Indemnified Party shall be entitled to indemnification of the Indemnified Party’s Losses only be liable for Losses in excess thereof; provided, however, that the Indemnification Basket shall not apply in any manner whatsoever to any breach of the Threshold, a representation or warranty contained in Sections 3.1(a) and (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000c), 3.2, 3.3(a), 3.8 and 3.24 and Sections 4.1(a) and (iiic), 4.2 and 4.3.
(b) other than with The indemnification obligations of ▇▇▇▇▇▇▇▇▇▇ pursuant to Section 9.1(b) shall be effective only until the dollar amount paid by ▇▇▇▇▇▇▇▇▇▇ in respect to of all Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all indemnified against under such claims shall not exceed One Hundred Twenty Five Million Dollars (Section aggregates U.S. $125,000,000)42,000,000; provided, however, that the limitations set forth on the indemnification contained in this Section 9.5(a9.6(b) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to (i) Losses arising under fraud, intentional misrepresentations or criminal acts, (ii) Losses relating to matters covered by Sections 3.1(a) and (c), 3.3(a), 3.8, and 3.24 or (iii) any obligation of ▇▇▇▇▇▇▇▇▇▇ to make payment under Section 2.7(f).
(c) All indemnification obligations shall be paid in U.S. Dollars in the United States, provided that to the extent that any indemnification obligations arise out of amounts paid by an Indemnified Party in a currency other than U.S. Dollars, such amount shall be converted to and be payable in U.S. Dollars converted at the currency exchange rate reported in the Wall Street Journal on the day prior to the date of any such payment, unless required by local Laws to be payable in the local currency thereof.
(d) Notwithstanding anything in this Acquisition Agreement to the contrary, no Liability, obligation, contract or other matter shall constitute a breach of any representation or warranty set forth of ▇▇▇▇▇▇▇▇▇▇ or entitle the Buyer Indemnified Persons to indemnification hereunder, to the extent, but only to the extent, of the amount of such Liability, obligation, Contract or other matter was provided for in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damagesWorking Capital Statement.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable Any payment made by Seller an Indemnifying Party to a Buyer an Indemnified Party with pursuant to this ARTICLE IX in respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against (i) will be net of any Indemnified Party, whether insurance proceeds received or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery receivable by the Indemnified Party with in respect to Losses (i) directly incurred from Third Party Claims or of such claim and (ii) for actual lost profits will be reduced by an amount equal to any Tax benefit received or incidental damagesreceivable by the Indemnified Party which are attributable to such claim.
Appears in 1 contract
Sources: Acquisition Agreement (Richardson Electronics LTD/De)
Limitation on Indemnification. (a) The obligations of indemnification set ----------------------------- out in Sections 12.1 and 12.2 shall:
12.8.1 survive the Closing for the period prescribed by Law, except the obligation of indemnification arising from any incorrectness in, or breach of, any representation or warranty made by the Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, Party which shall be subject to the following limitations: limitations regarding survival of representations and warranties set forth in Section 10.1 or 10.2, as the case may be;
12.8.2 survive the expiry of the periods for which indemnification is available hereunder if the notification of a claim under Section 12.4 is given prior to the expiry of the applicable period;
12.8.3 with respect to the obligation of indemnification in Sections 12.1.2 and 12.2.2, not be applicable for a single Loss unless such Loss exceeds Five Thousand US dollars (i) US $5,000), except in cases of fraud or willful misconduct, in which cases the Indemnifying Party shall have no liability be responsible for such claims until the aggregate full amount of the Losses;
12.8.4 with respect to the obligation of indemnification in Sections 12.1.2 and 12.2.2, not be applicable until the Losses incurred shall in the aggregate, exceed Two Million Five Four Hundred Thousand Dollars US dollars (US $2,500,000) (the "Threshold"400,000), except in cases of fraud or willful misconduct, in which case cases the Indemnifying Party shall only be liable responsible for Losses in excess the full amount of the ThresholdLosses;
12.8.5 not apply to the extent that the Losses claimed have been reimbursed through insurance to the Indemnified Party including, (ii) if the Indemnified Party is Purchaser, to the Corporation, Roche or any Subsidiary;
12.8.6 with respect to each Vendor, not exceed the proportion of the aggregate Purchase Price paid or credited plus the Capital Contributions which is equal to the proportion set forth beside such Vendor's name in Exhibit ------- "A" under "% of Indemnification Cap", except in cases of fraud or --- willful misconduct, in which cases the Indemnifying Party shall have no liability be responsible for any single claim unless the full amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)Losses; provided, however, that the limitations set forth in this Section 9.5(a) shall and
12.8.7 not apply to Parent's and Buyer's obligations the extent that the Indemnified Party has received an adjustment of the Purchase Price in accordance with Article II as a result of such Losses or a payment pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)5.1.
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made Buyer Indemnitees will not be entitled to indemnification under Section 9.2(a9.1 (a)(i) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of the all Losses incurred shall exceed Two Million Five by the Buyer Indemnitees exceeds Three Hundred Fifty Thousand Dollars ($2,500,000350,000) (the "Threshold"“Threshold Amount”), in which case event the Indemnifying Party shall only Buyer Indemnitees will be liable entitled to indemnification for all Losses incurred in excess of the Threshold, Threshold Amount). The maximum aggregate amount of indemnification that the Seller and the Stockholder shall collectively be obligated to pay under Section 9.1(a)(i) shall be equal to the lesser of (iiy) $22,200,000 or (z) the Indemnifying Party shall have no liability for any single claim unless Final Purchase Price (the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000“Seller Cap Amount”); provided, however, that the limitations set forth in this Section 9.5(a) Seller Cap Amount shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations Losses arising with respect to (A) any misrepresentation or breach of any representation or warranty set forth made in Sections 3.1 Section 3.1, 3.2, 3.3, 3.4, 3.15 or 3.22 and (Organization), 3.3 (AuthorizationB) and 3.8(e) (ERISA Affiliate)any fraudulent misrepresentation of Seller or Stockholder with respect to this Agreement or any certificate or other document delivered pursuant to this Agreement.
(b) The Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall Indemnitees will not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights entitled to indemnification under this Article IX shall not otherwise be subject to set-off for any claim Section 9.2 (a)(i) unless and until the aggregate amount of all Losses incurred by the Indemnifying Party against any Indemnified PartySeller Indemnitees exceeds the Threshold Amount, whether or not arising from in which event the same event giving rise Seller Indemnitees will be entitled to such Indemnified Party's claim indemnification for indemnification.
(fall Losses incurred in excess of the Threshold Amount. The maximum aggregate amount of indemnification that the Buyer shall be obligated to pay under Section 9.2(a)(i) Notwithstanding anything contained in this Purchase Agreement shall be equal to the contrary, no party shall be liable to lesser of (y) $22,200,000 or (z) the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Final Purchase AgreementPrice (the “Buyer Cap Amount”); provided, however, that the foregoing Buyer Cap Amount shall not be construed apply to preclude recovery by the Indemnified Party Losses arising (A) with respect to Losses (i) directly incurred from Third Party Claims any misrepresentation or breach of any representation or warranty made in Section5.1, 5.2 or 5.3, or (iiB) any fraudulent misrepresentation of Buyer with respect to this Agreement or any certificate or other document delivered pursuant to this Agreement.
(c) Notwithstanding any other provision of this Agreement, the remedies provided for actual lost profits or incidental damagesin Sections 9.1, 9.2 and 9.3 shall constitute the Buyer’s and the Seller’s and the Stockholder’s sole and exclusive remedy for any post-closing claims for breaches of representations and warranties by any party in connection with this Agreement, except to the extent that such breach constitutes intentional fraud on the part of such party.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Notwithstanding the foregoing provisions of this Article X, except as provided in Section 9.2(a) or Section 9.3(a10.05(b), as applicable, shall be subject to the following limitations: (i) neither Party (which term shall, for the Indemnifying Party purposes of this Article X, treat Purchaser, CB Holding and C▇▇▇▇▇▇ ▇▇▇▇▇’▇ as one Party) shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability responsible for any single claim unless indemnifiable Losses suffered by the amount other as a result of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to a breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing Article IV or Article V unless a claim therefor is asserted in writing on or prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts first anniversary of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, (other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first Section 4.16, which may be applied asserted on or prior to repay any outstanding amount the second anniversary of the Convertible NoteClosing Date, dollar or a claim with respect to any failure of the Sellers to own the Assets or the Stock or to deliver the Assets and such Stock free and clear of Liens, other than in the case of Assets other than the Stock, Permitted Liens, and in the case of Stock, Liens for dollarproperty taxes not yet due and payable, until the Convertible Note is repaid which may be asserted in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for writing at any claim by the Indemnifying time); (ii) neither Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable for any Losses suffered by the other as a result of a breach of any representation or warranty set forth in Article IV or Article V unless the aggregate amount of such Losses (together with all other indemnifiable Losses of such Party resulting from the other Party’s breach of its representations and warranties) exceeds $190,000 (the “Deductible”), and then only to the other party for extent of any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreementsuch excess; provided, however, that the foregoing Deductible shall not apply to indemnifiable Losses relating to any failure of the Sellers to own the Assets or Stock or to deliver the Assets or such Stock free and clear of Liens, other than in the case of Assets other than the Stock, Permitted Liens, and in the case of Stock, Liens for property taxes not yet due and payable, which shall be construed subject to preclude recovery indemnification from the first dollar; and (iii) the aggregate liability of either Party for Losses suffered by the Indemnified Party other as a result of a breach of any representation or warranty set forth in Article IV or Article V shall in no event exceed fifteen percent (15%) of the Purchase Price.
(b) The limitations described in 10.05(a) shall not apply to (i) any indemnifiable Losses with respect to Losses (i) directly incurred from Third Party Claims the Excluded Liabilities, which shall remain obligations of the Sellers for which Purchaser shall be entitled to indemnification or (ii) any indemnifiable Losses with respect to the Assumed Liabilities, which shall be the obligations of Purchaser for actual lost profits which the Sellers shall be entitled to indemnification.
(c) Any breach of a covenant herein that requires disclosure regarding the accuracy of, or incidental damagesthat requires updates relating to, a representation or warranty shall be subject to the same limitations as the related representation or warranty for purposes of indemnification under this Article X, and in no event shall indemnification rights relating to such covenant exceed those rights available with respect to the related representation or warranty.
Appears in 1 contract
Sources: Purchase Agreement (Rare Hospitality International Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary herein, (i) the Indemnifying Party Seller shall not have no any liability for such claims until under Section 10.01(a), unless the aggregate of all Losses for which Seller would be liable under Section 10.01(a) exceeds on a cumulative basis, an amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (equal to $2,500,000) 25,000 (the "Threshold"“Deductible Amount”), in which case and then only to the Indemnifying Party shall only be liable for Losses in excess extent of the Thresholdany such excess, (ii) the Indemnifying Party shall have no Seller’s aggregate liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), under Section 10.01(a) and (iiib) other than with respect to Losses based shall in no event exceed, on fraud or intentional misrepresentationa cumulative basis, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); Seller Liability Cap, provided, however, that there shall be no cap on Seller’s liability for Losses under Sections 10.01(c) and (d), (iii) the limitations set forth in this Section 9.5(aPurchaser’s aggregate liability under Sections 10.02(a) and (b) shall not apply to Parent's and Buyer's obligations pursuant to in no event exceed, on a cumulative basis, the Purchaser Liability Cap; provided, however that there shall be no cap on the Purchaser’s liability for Losses under Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization10.02(c) and 3.8(e) (ERISA Affiliated).
(b) Seller shall undertake all Remedial Action Following the Closing, the Parties’ rights to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property indemnification pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees)this Article X shall, except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data equitable relief and a final copy generated or prepared in connection with the specific performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies covenants that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall survive Closing, be the sole and exclusive remedy after the Closing Date for damages available to the parties with respect to any matter arising under or in connection with this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Actionhereby, other than a claim for claims of intentional misrepresentation or fraud. Each Party hereby waives, from and after the Closing Date, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement it or any Collateral of its Affiliates may have against the other Party and its Affiliates arising under or based upon this Agreement, the Other Acquisition Documents, any document or certificate delivered in connection herewith, the Product, the Acquisition, the Acquired Assets, the Excluded Assets, the Excluded Liabilities and the Assumed Liabilities, or any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article X).
(dc) All parties shall use commercially reasonable efforts to mitigate their damagesNOTWITHSTANDING ANY PROVISION HEREIN, NEITHER SELLER NOR PURCHASER SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ANY INDEMNITEE ON ACCOUNT OF ANY INDEMNITY OBLIGATION SET FORTH IN SECTION 10.01 OR SECTION 10.02 FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (EXCEPT TO THE EXTENT THE PARTY OR INDEMNITEE IS REQUIRED TO PAY SUCH TYPES OF DAMAGES TO A THIRD PARTY), INCLUDING LOSS OF FUTURE REVENUE OR INCOME, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY RELATING TO THE BREACH OR ALLEGED BREACH OF THIS AGREEMENT, OR DIMINUTION OF VALUE OR ANY DAMAGES BASED ON ANY TYPE OF MULTIPLE.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Notwithstanding the provisions of Section 9.2(a6.02(a) or Section 9.3(a)hereof, as applicable, Buyer shall not be subject obligated to the following limitations: (i) the Indemnifying Party shall have no liability for such claims indemnify and hold harmless Sellers until the aggregate amount of all claims for which indemnification is sought against Buyer under Section 6.02(a) of this Agreement and Section 6.02(b) of the Losses incurred shall exceed Two Million Five Hundred Agreement Regarding Stock Acquisition exceeds, in the aggregate, Eighty Thousand Dollars ($2,500,000) (the "Threshold"80,000), and then only as to the amount by which aggregate claims thereunder exceed $80,000. Buyer's aggregate liability with respect to the indemnification contained in which case Section 6.02(a) of this Agreement and Section 6.02(b) of the Indemnifying Party Agreement Regarding Stock Acquisition shall only be liable for Losses not exceed $2,000,000, and each party hereto waives (on its own behalf, and on behalf of all indemnified persons named hereunder benefiting from such party's indemnification) any and all rights, claims and causes of action that it or such persons may have against the indemnifying party under such indemnification provisions to the extent such rights, claims and causes of action would or could result in aggregate liability of the indemnifying party in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)2,000,000.
(b) Notwithstanding the provisions of Section 6.02(b) hereof, the aggregate liability under this Agreement of each Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to not exceed the Closing Date at amount set forth opposite such Seller's name in Schedule 1 attached hereto, being the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except purchase price for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionSeller's Shares.
(c) The Except for liability provided for in Section 7.02(b) hereof and the remedy of specific performance provided for in Section 8.12 hereof, each party hereto acknowledges and agrees that his, her or its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party waives, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action that it may have against the other party arising under or based upon any federal, state or local statute, law, ordinance, rule or regulation, or arising under or based upon common law or otherwise, except to the extent provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral AgreementVI.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Stock Purchase Agreement (Data Transmission Network Corp)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary contained in this Agreement, the Sellers shall not have any obligation to indemnify ▇▇▇▇▇▇ or the Buyer (i) the Indemnifying Party shall have no liability for such claims any single Loss which does not exceed $15,000 or (ii) for Aggregate Losses until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold")1,000,000, in which case event such Person shall be entitled to indemnification only with respect to the Indemnifying Party shall only be liable for amount of Losses in excess of $1,000,000 (provided that in calculating whether the Thresholdaggregate amount of Losses incurred exceeds $1 million, (ii) all indemnified Losses which are less than $15,000 shall be disregarded). At such time as the Indemnifying Party aggregate amount of Losses incurred as set forth in the foregoing sentence is in excess of $1,000,000, the Sellers shall have no liability not be obligated to indemnify ▇▇▇▇▇▇ or the Buyer for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall Loss which does not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations 30,000. The limitation set forth in this Section 9.5(a8.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to any Losses arising out of a breach of any a representation or warranty set forth contained in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA AffiliateSection 3.1(c).
(b) Seller shall undertake all Remedial Action Notwithstanding the foregoing, neither ▇▇▇▇▇▇ nor the Buyer will be entitled to respond indemnification with respect to:
(i) consequential damages, including, without limitation, consequential damages consisting of business interruption or lost profits;
(ii) any obligation, liability or matter to all Releases the extent reserves or accruals for such matter are reflected in the Financial Statements or are on the books and records of Hazardous Substances existing prior ▇▇▇▇▇▇ and are therefore taken into account in determining the Working Capital Statement;
(iii) to the extent any obligation or liability or matter, including with respect to environmental remediation and clean-up, arises under Laws that arise or are promulgated or announced after the Closing Date;
(iv) any obligation, liability or matter arising out of information Buyer discloses to any authority which disclosure is not required by Environmental Laws or other Laws or for which disclosure would not otherwise be reasonable business practice, without consideration of indemnification under this Article VIII;
(v) except if there is a breach of the representations and warranties set forth in this Agreement with respect to any claim by or liability to any employee employed by the Companies arising out of the termination of such employee's employment with the Companies after the Closing Date, any action by the Companies subsequent to the Closing Date at the Nebraska Property with respect to employment or termination of employees;
("Designated Remedial Action"vi) that any claim which Buyer or ▇▇▇▇▇▇ is necessary entitled to comply with all bring under any applicable Environmental Law as may currently be in effect statute, rule, regulation or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access case law, to the Nebraska Property extent that such claim would exceed the amount to which Buyer or ▇▇▇▇▇▇ is entitled to receive as indemnification under this Article VIII after giving effect to the limitations contained herein;
(vii) any obligation of ▇▇▇▇▇▇ to pay any amounts to the Internal Revenue Service or other governmental authority on account of or relating to any payments to Asco Investments made pursuant to Section 2.2 hereof; or
(viii) any claim by ▇▇▇▇▇▇ or the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out contribution of shares contemplated by Section 2.1 hereof or related to the willful misconduct or gross negligence redemption of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionshares contemplated by Section 2.2 hereof.
(c) The Notwithstanding the foregoing, the Sellers will not be entitled to indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to:
(i) consequential damages; or
(ii) with respect to any claim which the Designated Remedial ActionSellers shall be entitled to bring under any statute, other than a rule, regulation or case law to the extent that such claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy would exceed the amount to require a party which the Sellers are entitled to perform its obligations receive as indemnification under this Purchase Agreement or any Collateral AgreementArticle VIII after giving effect to limitations contained herein.
(d) All parties Any indemnification amounts payable under this Article VIII shall use commercially reasonable efforts be treated by the Buyer, ▇▇▇▇▇▇, the Sellers and the Companies as an adjustment to mitigate their damagesthe Cash Purchase Price, and shall be calculated after giving effect to (i) any proceeds received from insurance policies covering the damage, loss, liability or expense that is the subject to the claim for indemnity and (ii) the actual realized tax benefit to ▇▇▇▇▇▇ resulting from the damage, loss, liability or expense that is the subject of the indemnity; provided that to the extent that any tax benefit is realized in a tax year other than the year in which the indemnity is paid, ▇▇▇▇▇▇ shall make a payment to the indemnitor in the amount of such realized tax benefit in the year in which it is realized. For purposes hereof, an actual realized tax benefit is an actual reduction in taxes payable or a refund of taxes previously paid.
(e) If there is any outstanding balance on From and after the Convertible NoteClosing, any amounts payable by Seller the Buyer shall cause the Companies to a Buyer Indemnified Party with maintain customary products liability, property, casualty, business interruption and other insurance in respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible NoteCompanies, dollar for dollarin accordance with general industry practices, until provided, that such insurance coverage will not, in the Convertible Note is repaid aggregate, be substantially less favorable to the Companies than the Companies' insurance coverage prior to the Closing. Indemnification claims hereunder shall be reduced by and to the extent that the Companies receive proceeds under insurance policies, risk sharing pools, or similar arrangements specifically as a result of, and in full. The rights to compensation for, the subject matter of an indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationclaim.
(f) Notwithstanding anything In the case of a breach of representation or warranty contained in this Purchase Agreement Section 3.1, the Buyer and/or ▇▇▇▇▇▇ shall only be entitled to indemnification pursuant to Section 8.2 from the contraryparticular Seller whose breach gives rise to such indemnification right and only for such Seller's remaining Allocable Percentage of the then-existing Escrow Amount, no party shall be liable to and the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing Seller shall not be construed obligated to preclude provide indemnification or contribution or otherwise be obligated or liable therefor and any remaining portion of the Escrow Amount will not be available to the Buyer in respect of such breach.
(g) Any indemnification of or recovery by the Indemnified Party Buyer or ▇▇▇▇▇▇ for Losses under Section 8.2 of this Agreement, any agreement or instrument contemplated hereby, any document relating hereto or thereto or any Exhibit to this Agreement arising on or after the Closing Date shall be limited solely to the amount of the Escrow Amount then held by the Escrow Agent under the Escrow Agreement.
(h) Notwithstanding anything to the contrary set forth in this Agreement, the Buyer, ▇▇▇▇▇▇ and their respective affiliates will not, directly or indirectly, in whole or in part, make whole, reimburse or otherwise compensate ▇▇▇▇ with respect to Losses (i) directly incurred from Third Party Claims or (ii) claims payable out of the Escrow Amount for actual lost profits or incidental damageshis portion of any indemnification obligation hereunder.
Appears in 1 contract
Sources: Stock Purchase and Redemption Agreement (Holmes Products Corp)
Limitation on Indemnification. Notwithstanding anything to the contrary contained in this Agreement:
(a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, No Person shall be subject liable for any claim for indemnification under this Article VII unless a Claim Certificate is delivered by the Person seeking indemnification to the following limitations: (i) Person from whom indemnification is sought prior to the Indemnifying Party shall have no liability for such claims until the aggregate amount expiration of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold")applicable survival period, in which case the Indemnifying Party representation, warranty, covenant or agreement which is the subject of such claim shall survive until such claim is resolved, whether or not the amount of the Losses resulting from such breach has been finally determined at the time the notice is given and whether or not the applicable survival period would have expired but for this sentence.
(b) Neither Seller nor Purchaser, as the case may be, shall be liable for any claim for indemnification pursuant to Section 7.2(a) or Section 7.3(a), as the case may be, unless the aggregate amount of Losses on a cumulative basis which may be recovered from Seller or Purchaser, as the case may be, equals or exceeds $500,000 (the “Deductible”), in which case, subject to the other limitations herein, Seller or Purchaser, as the case may be, shall only be liable for the aggregate amount of Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars the Deductible.
($50,000), and (iiic) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' The maximum aggregate liability for all such claims of Seller pursuant to (i) Section 7.2(a) shall not exceed One Hundred Twenty Five Million Dollars (A) an amount in cash equal to $125,000,000[*] (the “Cash Cap”) plus (B) a forfeiture of such number of Seller’s Class B Preferred Units in an amount up to $[*] based on the Fair Market Value (as defined in the Operating Agreement) of such Class B Preferred Units at the time of the delivery of the applicable Claim Certificate(s) pursuant to the provisions of Section 7.6 (the “Equity Forfeiture Cap”); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply any amounts due to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property Purchaser pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts provisions of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which this Article VII shall be provided to Buyer prior to their submission to any Governmental Bodyoffset first against the Cash Cap, and only upon exhaustion thereof, the Equity Forfeiture Cap; and (ii) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(cSection 7.2(b) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
through (e) If there is any outstanding balance on of this Agreement shall not exceed an amount equal to the Convertible NotePurchase Price actually received by Seller. Notwithstanding anything to the contrary in this Agreement, any amounts payable the aggregate amount of all Losses that may be recovered from Seller by Purchaser Indemnitees under this Agreement shall not exceed (x) an amount equal to the Purchase Price actually received by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount plus (y) the forfeiture of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim Class B Preferred Units actually received by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement Seller pursuant to the contraryAward Agreement, no party shall be liable valued at the Fair Market Value at the time of the delivery of the applicable Claim Certificate(s) pursuant to the other party for any special, punitive, exemplary or consequential loss or damage arising out provisions of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesSection 7.6.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Priority Technology Holdings, Inc.)
Limitation on Indemnification. Notwithstanding anything to the ----------------------------- contrary contained in this Agreement, (a) The Indemnifying Party's or Parties' the aggregate liability of the Shareholder for any and all claims made under Losses incurred by Buyer (and all related Indemnitees) and for which Buyer (and all related Indemnitees) would otherwise be entitled to indemnification hereunder, except with respect to Losses arising from a breach of the representations and warranties contained in Sections 4.1, 4.3, 4.7, 4.12 and 4.25 and/or the covenants of the Shareholder contained in Section 9.2(a6.2(a),(b) or Section 9.3(a), as applicableand (c) hereof, shall not exceed $3,200,000 and (b) the aggregate liability of the Shareholder for any and all Losses incurred by Buyer (and all related Indemnitees) arising from a breach of the representations and warranties contained in Sections 4.1, 4.3, 4.7, 4.12 and 4.25 and/or the covenants of the Shareholder contained in Section 6.2(a),(b) and (c) hereof and for which Buyer (and all related Indemnitees) would otherwise be subject entitled to indemnification hereunder shall not exceed the Closing Payment plus any Contingent Payment(s) actually paid to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless Shareholder less the amount of any Losses actually indemnified pursuant to the preceding clause (a). Notwithstanding anything to the contrary contained in this Agreement, (A) the aggregate liability of Buyer for such claim exceeds Fifty Thousands Dollars any and all Losses incurred by the Shareholder ($50,000)and all related Indemnitees) and for which the Shareholder (and all related Indemnitees) would otherwise be entitled to indemnification hereunder, except with respect to Losses arising from a breach of Sections 3.4, 10.2(a)(ii) and (iii) other than with respect to Losses based on fraud or intentional misrepresentationand 10.2(b) hereof, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars $2,000,000 and ($125,000,000); provided, however, that B) the limitations set forth in this Section 9.5(aaggregate liability of Buyer for any and all Losses incurred by the Shareholder (and all related Indemnitees) arising from a breach of Sections 10.2(a)(ii) and (iii) and 10.2(b) hereof and for which the Shareholder (and all related Indemnitees) would otherwise be entitled to indemnification hereunder shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to exceed $1,500,000. A breach of any representation or warranty set forth in Sections 3.1 (Organization)Section 3.4 hereof shall be fully indemnifiable hereunder, 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Sellersubject to, before undertaking any work to be performed and/or making such submissionsor covered by, the foregoing limitation on liability. Buyer shall have The Shareholder, on the right to be present one hand, and comment during all material conversations or meetings with Governmental Bodies regarding Buyer, on the Nebraska property. Seller shall promptly provide to Buyer copies of all written informationother hand, documents and submissions (copies of which shall be provided obligated to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out Indemnitee pursuant to this Section 10 with respect to any Loss incurred by such Indemnitee only (i) if the amount of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or resulting from an individual claim (or series of related or similar claims) is equal to or greater than $7,500 and (ii) to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with extent that the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding aggregate amount of all Losses for all claims made by Indemnitees shall exceed $200,000, in which case only the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX excess over $200,000 shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing -------- ------- $200,000 limitation shall not be construed apply in respect of claims arising out of or resulting from (x) a breach of Sections 4.1, 4.3, 4.28 or 5.5 hereof or (y) a breach by Buyer of Section 3.4 or for indemnification pursuant to preclude recovery by the Indemnified Party with respect to Losses (iSections 10.2(a) directly incurred from Third Party Claims or (ii) or (iii) or Section 10.2(b). In no event shall the Shareholder or Buyer, as the case may be, be liable to any Indemnitee hereunder for actual lost profits special, indirect, incidental or incidental punitive damages.
Appears in 1 contract
Limitation on Indemnification. (ai) The Indemnifying Party's Subject to Section 6(d)(ii), and Section 6(d)(iii) below, (x) (A) Buyer shall not be entitled to recover for or Parties' liability assert any claim for all claims made indemnification under Section 9.2(a6(b)(i) (other than with respect to Fundamental Representations), and (B) Seller shall not be entitled to recover for or assert any claim for indemnification under Section 9.3(a6(c)(i) (other than with respect to Buyer Fundamental Representations), unless, in any such case, the Losses incurred by the Buyer or the Seller, as applicable, arising from such claim (or related claim(s) arising from the same or substantially similar set of facts and circumstances) exceed $15,000 (the “Mini-Basket”); any such claim (or related claim(s) arising from the same or substantially similar set of facts and circumstances) that does not result in Losses incurred by the Buyer or the Seller, as applicable, in excess of the Mini-Basket will not count toward determining whether the Deductible has been satisfied; (y) Buyer shall not be subject liable for any claim for indemnification pursuant Section 6(c)(i) (other than with respect to the following limitations: (iBuyer Fundamental Representations) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000that may be recovered from Buyer under Section 6(c)(i) (other than with respect to Buyer Fundamental Representations) exceeds $327,500 (the "Threshold"“Deductible”), in which case the Indemnifying Party Buyer shall only be liable for all such Losses to the extent in excess of the ThresholdDeductible, subject to the other provisions in this Section 6 and (iiz) the Indemnifying Party Seller shall have no liability not be liable for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars indemnification pursuant to Section 6(b)(i) ($50,000), and (iii) other than with respect to Fundamental Representations) unless and until the aggregate amount of Losses based on fraud or intentional misrepresentationthat may be recovered from Seller under Section 6(b)(i) (other than with respect to Fundamental Representations) exceeds the Deductible, the Indemnifying Party's or Parties' aggregate liability in which case Seller shall be liable for all such claims Losses to the extent in excess of the Deductible, subject to the other provisions in this Section 6.
(ii) Subject to Section 6(d)(iii) below, (A) Seller’s obligation to indemnify the Buyer Indemnitees from and against any Losses pursuant to Section 6(b)(i) (other than with respect to the Fundamental Representations) shall be limited to the portion of the Escrow Fund equal to $327,500 (the “Cap”), (B) the aggregate amount of Losses for which Seller will be liable pursuant to Section 6(b)(i) (other than with respect to the Fundamental Representations) shall in no event exceed the Cap, (C) the Buyer Indemnitees’ sole recourse under Section 6(b)(i) (other than with respect to the Fundamental Representations) for amounts in excess of the portion of the Escrow Fund equal to the Cap, including after the Escrow Period, shall be through the R&W Policy), (D) Seller shall have no obligation to indemnify the Buyer Indemnitees from and against any Losses pursuant to Section 6(b)(i) (other than with respect to the Fundamental Representations) after the exhaustion and/or release of the Escrow Fund, and (E) any payment made from the Escrow Fund or under the R&W Policy to the Buyer Indemnitees pursuant to this Section 6 shall constitute full satisfaction of any obligation of Seller to make such payment to the Buyer Indemnitees for any Losses pursuant to Section 6(b)(i) (other than with respect to the Fundamental Representations). If Buyer is liable to the Seller Indemnitees for any Losses hereunder, Buyer shall pay the amount of any such Losses to Seller within 10 days following the earlier of (x) a final judgment or decree of any court of competent jurisdiction with respect to such Losses, or (y) mutual written agreement of Buyer and Seller.
(iii) Notwithstanding anything herein to the contrary, the limitations set forth in Section 6(d)(i) and Section 6(d)(ii) shall not exceed One Hundred Twenty Five Million Dollars apply to Losses incurred in connection with or arising from any ($125,000,000A) breach of or inaccuracy in any Fundamental Representation or Buyer Fundamental Representation, (B) indemnification items set forth in Section 6(b)(ii) through Section 6(b)(viii) above, (C) indemnification items set forth in Section 6(c)(ii) to Section 6(c)(iii) above, (D) indemnification set forth in Section 6(j) below, or (E) claims of Fraud; provided further that, except for claims for Fraud: (y) the maximum aggregate amount of indemnified Losses which may be recovered pursuant to claims for breach of Fundamental Representations shall be equal to the Purchase Price (the “Aggregate Cap”); and (z) the sole remedy of Buyer for an AAC Claim or any Adverse Assignment Consequences will be to recover from the Escrow Fund as more specifically provided in Section 6(j).
(iv) To the extent that Buyer experiences Losses indemnifiable hereunder that may be covered under the R&W Policy, Buyer (a) will promptly notify Seller, (b) will use reasonable commercial efforts to recover first under the R&W Policy, prior to seeking payment for indemnification against Seller for such Losses (provided, that the foregoing clause (b) will not prohibit Buyer from making a claim against Seller for indemnification hereunder prior to the expiration of the applicable survival period hereunder provided that Buyer does not otherwise seek payment for indemnification against Seller prior to complying with the terms of this clause (b)), and (c) will keep Seller reasonably informed of any action taken in respect thereof and will respond to any reasonable requests made by Seller in connection therewith. In addition, following the Closing, Buyer shall not take any actions to amend, modify or terminate the R&W Policy without the written consent of Seller, and shall not otherwise take any action that Seller reasonably believes may adversely affect coverage under the R&W Policy.
(v) For purposes of determining the extent to which the Buyer Indemnitees may recover under Section 6(b)(i) and the Seller Indemnitees may recover under Section 6(c)(i), in connection with any breach of a representation and warranty under this Agreement, including determining whether any breach or Loss has occurred, and the amount of such Loss, the terms “material adverse effect” or “materiality” or similar qualifiers in such representations and warranties shall be disregarded; provided, however, that for purposes of determining whether a breach has occurred, (i) the term “Material Adverse Effect” in Section 4(j), and (ii) the phrases “Material Contracts” and “Material Suppliers,” will be given effect when used in the representations and warranties of Seller.
(vi) The amount of any Losses subject to indemnification under this Section 6 shall be net of any amounts actually recovered by the Party seeking indemnification or its Affiliates (the “Indemnified Party”) under applicable insurance policies (including under the R&W Insurance Policy) or from any other Person (net of any costs incurred in obtaining such recovery) alleged to be responsible therefor. If the Indemnified Party actually receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Party against whom indemnity is sought (the “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 the amount received by the Indemnified Party, net of any expenses or costs incurred by such Indemnified Party by reason of making such claim or collecting such amount. Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage (including under the R&W Policy), or from any other Person alleged to be responsible, for any Losses payable under this Section 6.
(vii) The Indemnifying Party shall not be liable under this Section 6 for any Losses relating to any matter if and to the extent that there is included within the Final Closing Statement a specific liability or reserve for such matter.
(viii) Each Indemnified Party must use commercially reasonable efforts to mitigate, subject to compliance with applicable Law, any Loss for which such Indemnified Party seeks indemnification under this Agreement.
(ix) In addition, the R&W Policy will not limit the indemnification obligations of Seller under this Agreement with respect to: (y) Losses below the retention under the R&W Policy, which indemnification obligations will be subject to the Deductible hereunder, if applicable, and the other terms and conditions set forth in Section 6 of this Agreement, as applicable; or (z) indemnification items set forth in Section 6(b)(ii) through Section 6(b)(viii); provided, however, that the limitations set forth in foregoing provisions will not limit or impact the terms of this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to 6 (including under Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization6(d)(iv), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(bx) Seller If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to this Section 6 and the Indemnified Party could have recovered all or a part of such Losses from a third party (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall undertake all Remedial Action assign such of its rights to respond to all Releases of Hazardous Substances existing prior to proceed against the Closing Date at the Nebraska Property ("Designated Remedial Action") that is Potential Contributor as are reasonably necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by permit the Indemnifying Party against any Indemnified Party, whether or not arising to recover from the same event giving rise Potential Contributor the amount of such payment, except where such assignment or the enforcement of rights thereunder could reasonably be expected to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained result in this Purchase Agreement further Losses to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party including the loss of any benefits under any insurance policy, employment relationship, or contract or with respect any customer or supplier or prospective customer or supplier or is reasonably likely to Losses (i) directly incurred from Third Party Claims result in an indemnity claim against Target or (ii) for actual lost profits or incidental damagesBuyer.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made aggregate joint and several indemnification obligations of Seller and the Shareholders with respect to Losses under this Agreement shall be limited as set forth in Section 7.6(b), and the aggregate several indemnification obligations of Aether and the Purchasers with respect to Losses under this Agreement shall be limited as set forth in Section 7.6(c).
(b) Notwithstanding anything herein to the contrary, neither Seller nor the Shareholders shall be obligated to indemnify any of the Purchaser Indemnified Parties under Section 9.2(a) or Section 9.3(a7.2(i), as applicable, shall be subject to the following limitations: (iA) the Indemnifying Party shall have no liability for such claims until unless the aggregate amount of the all such Purchaser Indemnified Parties’ Losses incurred shall exceed Two Million Five exceeds One Hundred Fifty Thousand Dollars ($2,500,000150,000) (the "Threshold"“Basket”), in which case the Indemnifying Party Purchaser Indemnified Parties shall only be liable for Losses in excess entitled to recover all of the ThresholdPurchaser Indemnified Parties’ Losses, including such US$150,000, (iiB) and with respect to representations and warranties other than the Indemnifying Party shall have no liability for any single claim unless Seller’s Core Representations to the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)extent that the same exceed, in the aggregate, the Indemnification Holdback, and (iiiC) other than with respect to the extent that the aggregate of all the Purchaser Indemnified Parties’ Losses based on fraud or intentional misrepresentation, exceed the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars Purchase Price ($125,000,000the “Indemnification Cap”); provided, however, that the limitations set forth in this Section 9.5(a) Basket and the Indemnification Cap shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) any indemnification obligation of Seller or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization)the Shareholders arising out of, 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and or resulting from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of fraud or related to the willful misconduct or gross negligence by any of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionthem.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement herein to the contrary, no party neither Aether nor the Purchasers shall be liable obligated to indemnify any of the Seller Indemnified Parties under Section 7.3 to the other party for extent the Losses exceed, in the aggregate, the amount of the value of the Consideration Shares and the True Up Shares (if any specialare issued hereunder), punitive, exemplary each valued at the lesser of the Closing Date Stock Price or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesRegistration Statement Closing Price.
Appears in 1 contract
Sources: Equity Interest and Asset Purchase Agreement (Aether Holdings Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary or inconsistent in this Agreement or in any of the agreements, certificates or affidavits delivered by any Seller pursuant to this Agreement, (i) the Indemnifying Party no Seller shall have no any liability for such claims any Losses suffered or incurred by Purchaser as a result of any default or breach by any Seller of any provision of this Agreement or the inaccuracy of any of the representations or warranties of any Seller set forth in Section 6.1 hereof (“Purchaser’s Damages”) unless and until the aggregate amount sum of such obligations of all Sellers shall have a monetary value of $500,000.00 or more (the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000“Liability Basket”) (the "Threshold")provided that if Purchaser’s Damages, in which case the Indemnifying Party aggregate, meet or exceed the Liability Basket, then Sellers shall only be liable for Losses in excess the full amount of Purchaser’s Damages, including the ThresholdLiability Basket, subject to clause (ii) hereof) and (ii) the Indemnifying Party aggregate liability of each Seller arising pursuant to or in connection with any default or breach by such Seller of any provision of this Agreement or the inaccuracy of any of the representations or warranties of such Seller set forth in Section 6.1 hereof shall have not exceed an amount equal to $10,000,000.00 (the “Liability Cap”). Provided however, notwithstanding anything to the contrary, in no liability for event shall either the Liability Basket or the Liability Cap apply to any single claim unless Losses and/or claims arising from or in connection with (a) fraud by any Seller, (b) Section 13.1 hereof, (c) Section 4.2.2, and/or 4.4 (d) any misrepresentation contained in or omission from any Seller Estoppel, (e) a breach of the amount representations and warranties of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)the Sellers set forth in Sections 6.1.1, 6.1.2, 6.1.13, 6.1.14, 6.1.15 and/or 6.1.17, and (iiif) any other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations breach by Sellers of any covenant set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parkway Properties Inc)
Limitation on Indemnification. (a) The Indemnifying Party's Except as otherwise provided in this Section 9.04, no Shareholder or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, Restricted Stock Holder shall be subject liable for any claim for indemnification pursuant to the following limitations: Section 9.02(a) unless (i) the Indemnifying Party shall have no liability for such claims Losses related to any single Claim or series of related Claims exceeds ten thousand dollars ($10,000) and (ii) and until the aggregate amount of Losses which may be recovered by the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (Parent Indemnitees equals or exceeds $2,500,000) 1,000,000 (the "Threshold"“Basket”), in which case the Indemnifying Party Shareholders shall only be liable for the aggregate amount of Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless exceeding the amount of the Basket.
(b) Except as otherwise provided in this Section 9.04, the maximum aggregate amount of indemnifiable Losses which may be recovered for such claim exceeds Fifty Thousands Dollars indemnification pursuant to Section 9.02(a) shall be an amount equal to twenty million dollars ($50,000), and 20,000,000) (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000“General Indemnity Cap”); provided, however, that notwithstanding anything herein to the limitations set forth in this Section 9.5(a) contrary, neither the Basket nor the General Indemnity Cap shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to Claims initiated by any Parent Indemnitee in connection with, related to, or arising out of (i) any breach of any representation or warranty set forth in Sections 3.1 Fundamental Representation, (Organizationii) a Claim for indemnification under Section 9.02(b), 3.3 Section 9.02(c), Section 9.02(d), or Section 9.02(e) or (Authorizationiii) and 3.8(eFraud or willful breach. Notwithstanding anything herein to the contrary, (x) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action other than with respect to respond to all Releases Shareholders holding 20% or more of Hazardous Substances existing the Common Shares immediately prior to the Closing Date at the Nebraska Property Effective Time, no indemnifiable Losses may be recovered against any Shareholder or Restricted Stock Holder in excess of such Person’s Pro Rata Share of such Losses and ("Designated Remedial Action"y) that is necessary to comply with all applicable Environmental Law as may currently be in effect no Shareholder or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer Restricted Stock Holder shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from liability for any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all indemnifiable Losses arising out in excess of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance amount of the Designated Remedial Action. Seller shall have no obligation hereunder Merger Consideration actually paid to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionsuch Person.
(c) The indemnification provided in amount of any Losses payable under this Article IX by any Indemnifying Party shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach net of any amounts actually recovered by the Indemnified Party under applicable insurance policies (net of any costs or expenses incurred in the termscollection thereof, conditionsincluding deductibles, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties and applicable premium adjustments). Each Indemnified Party shall use commercially reasonable efforts to mitigate their damagescollect any amounts available under insurance coverage for any Losses payable under this Article IX.
(d) Notwithstanding anything to the contrary in this Agreement, no Shareholder or Restricted Stock Holder shall have any liability under this Agreement, including under this ARTICLE IX, with respect to any Taxes (or any Losses arising out of, in connection with or with respect to such Taxes): (i) resulting from any transaction or event taken by the Company at the direction of Parent or any of its Affiliates on the Closing Date after the Closing not specifically contemplated by this Agreement that is outside the ordinary course of business consistent with past practices; (ii) with respect to any taxable period (or portion thereof) beginning after the Closing Date, other than (A) Taxes directly resulting from a breach of any of the representations set forth in Section 3.13(c)(i)(A) (but only for taxable periods ending on or before December 31, 2025), Section 3.13(c)(v), Section 3.13(c)(vii), Section 3.13(c)(xii), or Section 3.13(c)(xv), and (B) interest or penalties imposed by a taxing authority in respect of Taxes of the Company for a Pre-Closing Period; or (iii) due to the reduction or unavailability in any taxable period (or portion thereof) beginning after the Closing Date of, or limitation on, any net operating loss carryforward, disallowed business interest expense carryforward, Income Tax basis, capital loss carryforward or Tax credit carryforward; provided, that the foregoing exclusions in clause (iii) of this Section 9.04(d) shall not apply to any Taxes paid or payable by or with respect to the Company in a Pre-Closing Period.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would reasonably be expected to, or does, give rise thereto; provided, that Parent will be deemed to have complied with respect this Section 9.04(e) as it relates to Tax matters so long as it has complied with its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationVII.
(f) Notwithstanding anything contained in No Losses may be claimed under this Purchase Agreement Article IX by any Indemnified Party to the contraryextent such Losses are included in the calculation of any Working Capital Adjustment.
(g) In the event that an insurance, no indemnification or other recovery or redress is made by any party with respect to any Losses, for which any such Person has been indemnified hereunder and has received or retained funds in the amount of the Losses, or portion thereof, from the Indemnifying Party, then the Indemnified Party shall be liable to refund the other party for any specialIndemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that plus the foregoing shall not be construed to preclude recovery amount received by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims such insurance or indemnification recovery or other redress less (ii) for actual lost profits or incidental damagesthe full amount of the Loss.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) Notwithstanding anything in this Agreement to the Indemnifying Party contrary, but except in the case of fraud or with respect to breaches or inaccuracies of, or related to, representations and warranties contained in the Seller Excluded Provisions, the Selling Parties shall have no liability for such claims with respect to Losses arising from breaches of representations and warranties pursuant to Section 8.5(a)(i) until the aggregate amount of all such Losses with respect to all such Claims under Section 8.5(a)(i) exceeds the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party Selling Parties shall only be liable for all such Losses (i.e., not just those in excess of the Threshold) in an amount up to, but not in excess of, the Cap.
(ii) Notwithstanding anything in this Agreement to the Indemnifying Party contrary, the Selling Parties shall not be required to provide indemnification for Losses with respect to any Claim under this Section 8.5 hereof in excess of an aggregate indemnified amount equal to the aggregate amount of the Purchase Price actually paid to the Sellers hereunder.
(iii) Notwithstanding anything in this Agreement to the contrary, but except in the case of fraud or with respect to breaches or inaccuracies of, or related to, representations and warranties contained in the Buyer Excluded Provisions, the Buyer shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentationarising from breaches of representations and warranties pursuant to Section 8.5(b)(i) until the aggregate amount of all such Losses with respect to all such Claims under Section 8.5(b)(i) exceeds the Threshold, in which case the Indemnifying Party's or Parties' aggregate liability Buyer shall be liable for all such claims Losses (i.e., not just those in excess of the Threshold) in an amount up to, but not in excess of, the Cap.
(iv) Notwithstanding anything in this Agreement to the contrary, the Buyer shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)be required to provide indemnification for Losses with respect to any Claim under Section 8.5(b)(ii) to and including Section 8.5(b)(iv) hereof in excess of an aggregate indemnified amount equal to the aggregate amount of the Purchase Price actually paid to the Sellers hereunder; provided, however, that nothing in this Section 8.5(h)(iv) shall limit or in any way affect the limitations Buyer’s obligation to pay the Purchase Price (including the Deferred Cash Payment, the Holdback Amount (to the extent payable to the Sellers) and the Earn Out Payments (to the extent payable to the Sellers)) in full.
(v) Other than with respect to injunctive or other equitable relief, the remedies set forth in this Section 9.5(a8.5 constitute the sole and exclusive remedies for recovery of Losses arising out of or relating to this Agreement and the Transaction.
(vi) If an Indemnified Party is entitled to indemnification under more than one clause or provision of this Agreement, such Indemnified Party shall not apply be entitled to Parent's and Buyer's obligations pursuant to Section 5.1(b) only one indemnification or to Seller's obligations recovery with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of same circumstances or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionevents.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Except as set forth in Section 9.2(a7.5(b) or Section 9.3(a)below, as applicableneither Buyer, on the one hand, nor Seller and the Stockholders, on the other hand, shall be subject entitled to the following limitations: (i) the Indemnifying Party shall have no liability for such claims indemnification under this Agreement unless and until the aggregate amount of the any Losses incurred shall exceed Two Million Five exceeds One Hundred Fifty Thousand Dollars ($2,500,000150,000) (the "ThresholdBasket Amount")) after which Buyer, in which case on the Indemnifying Party one hand, or Seller and the Stockholders, on the other hand, shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the entire amount of Losses such Losses, including the Basket Amount. Unless specifically stated elsewhere in this Agreement, the maximum aggregate obligation of Buyer with respect to all matters for such claim exceeds Fifty Thousands which Seller and the Stockholders may seek indemnification under this Agreement with respect to any claim, loss, liability or damages of any kind whatsoever arising out of or relating or incident to this Agreement or any agreement or document delivered in connection herewith or the transactions contemplated hereby (the "Buyer Cap") shall not exceed Two Million Six Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars ($50,0002,688,870), . The maximum aggregate obligation of Seller and (iii) other than the Stockholders with respect to Losses based on fraud all matters for which Buyer may seek indemnification from them under this Agreement and with respect to any claim, loss, liability or intentional misrepresentation, damages of any kind whatsoever arising out of or relating or incident to this Agreement or any agreement or document delivered in connection herewith or the Indemnifying Party's or Parties' aggregate liability for all such claims transactions contemplated hereby (the "Seller Cap") shall not exceed One Two Million Six Hundred Twenty Five Million Eighty Eight Thousand Eight Hundred Seventy Dollars ($125,000,0002,688,870); provided, however, that the limitations set forth in this Section 9.5(aSeller Cap shall be Four Million Thirty Three Thousand Three Hundred Six Dollars ($4,033,306) shall not apply to Parent's for any indemnification claims resulting from a fraudulent breach by Seller and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach the Stockholders of any representation of their representations, warranties or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) covenants under this Agreement. The Buyer Cap and 3.8(e) (ERISA Affiliate)the Seller Cap are collectively referred to as the "Cap".
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments The Basket Amount shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission apply to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless claim made by Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses upon (i) directly incurred from Third Party Claims the representations and warranties of Seller and the Stockholders contained in any of Sections 4.1, 4.2(a), 4.6 (solely as it relates to title to the Assets) 4.8, 4.11, 4.13, and 4.19; or (ii) for actual lost profits or incidental damages.any
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary contained in this Agreement, (i) the Indemnifying Party Seller shall have no liability not be liable for such claims any claim for indemnification pursuant to Section 8.2(i) unless and until the aggregate amount of Losses which may be recovered from Seller equals or exceeds 0.5% (zero point five percent) of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) Final Investment Price (the "Threshold"“Deductible”), in which case the Indemnifying Party Purchaser shall only be liable for entitled to recover the amount of any Losses in excess of the Threshold, Deductible; (ii) the Indemnifying Party Seller shall have no liability not be liable for any single claim unless individual Loss or series of related Losses that do not exceed US$10,000 (which Losses shall not be counted toward the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000Deductible), and (iii) other than with respect the maximum aggregate amount of indemnifiable Losses available for indemnification which may be recovered for indemnification pursuant to Losses based on fraud or intentional misrepresentationSection 8.2(i), shall be an amount equal to 10.0% (ten percent) of the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars Final Investment Price.
($125,000,000); provided, however, that b) Notwithstanding anything herein to the contrary (i) the limitations set forth in this Section 9.5(a8.4(a) above shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) Losses incurred by the Purchaser Indemnitee in connection with or to Seller's obligations with respect to arising from any breach of any representation or warranty of Seller in Section 3.2(a) (Authorization; No Contravention), Section 3.3 (Ownership of Shares), Section 3.5 (Capitalization of OCEN), Section 3.6 (Capitalization of the Target Companies), Section 3.21 (Environmental Matters) and Section 3.22 (Brokers); (ii) the limitations set forth in Sections 3.1 Section 8.4(a)(iii) above shall not apply to Losses incurred by the Purchaser Indemnitee in connection with or arising from any breach of any representation or warranty of Seller in Section 3.11 (Organization), 3.3 (AuthorizationTax Matters) and 3.8(e(iii) (ERISA Affiliate).
(b) Seller in no event shall undertake all Remedial Action any Indemnified Party be entitled to respond to all Releases of Hazardous Substances existing prior double recovery under this Agreement. Notwithstanding anything herein to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be contrary, in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer event shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses aggregate total liability arising out of or related to with indemnifiable Losses under this Agreement, exceed the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance total amount of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionFinal Investment Price.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for For purposes of calculating any Losses resulting from an inaccuracy in, misrepresentation of or breach of any of the terms, conditions, representations or warranties contained hereinof, any right, claim representation or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything warranty contained in this Purchase Agreement to Agreement, the contraryterms “material”, no party “materiality”, “Material Adverse Effect” or similar qualifications shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesdisregarded.
Appears in 1 contract
Sources: Stock Purchase and Subscription Agreement (Live Nation Entertainment, Inc.)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made Sellers shall not be required to indemnify and hold the Buyer Indemnified Parties harmless under Section 9.2(a9.1(a)(i) or Section 9.3(a), as applicable, shall be subject to the following limitations: (iiii) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (exceeds $2,500,000) 325,000 (the "ThresholdBasket Amount"), in at which case point Sellers shall be required to indemnify and hold the Indemnifying Party shall only be liable Buyer Indemnified Parties harmless for all Losses in excess of the ThresholdBasket Amount, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)up to, and (iii) other than with respect to Losses based on fraud or intentional misrepresentationbut not in excess of, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars limitations set forth in Subsection ($125,000,000)b) herein; provided, however, where the aggregate amount of Losses arising out of a single claim or series of related claims derived from the same or related facts, events or circumstances for which any Buyer Indemnified Party could otherwise seek indemnification under Section 9.1(a)(i) or (iii) does not exceed $10,000, such claim or series of related claims shall not count towards the Basket Amount as Losses for purposes of this Agreement; provided, further, that the limitations set forth in this Section 9.5(a) 9.6 shall not apply to Parent's and Buyer's obligations pursuant to Losses under Section 5.1(b9.1(a)(ii) or Section 9.1(b). Notwithstanding anything to the contrary contained herein, in no event shall any of the Companies be required to indemnify or hold the Buyer Indemnified Parties harmless under Section 9.1 after the Closing. Such obligations shall be solely the several obligations of Sellers.
(b) Notwithstanding anything contained herein to the contrary, in no event shall any Seller be liable under Section 9.1(a)(i) or (iii) in an amount in excess of such Seller's obligations Indemnification Pro Rata Portion of the following percentages of the Base Purchase Price:
(i) with respect to a breach of any a representation or warranty set forth in Sections 3.1 3.1, 3.2, 3.3, 3.4, 3.5, 3.14, or 3.31: one hundred percent (Organization), 3.3 (Authorization100%) and 3.8(e) (ERISA Affiliate).of the Base Purchase Price;
(bii) Seller with respect to a breach of a representation or warranty set forth in Sections 3.10 and 3.19: fifty percent (50%) of the Base Purchase Price;
(iii) with respect to a breach of a representation or warranty set forth in Sections 3.18 and 3.24: thirty percent (30%) of the Base Purchase Price; provided, however, that with respect to any claims relating to a breach of the warranties and representations as to products liability under Section 3.24: such percentage cap shall undertake all Remedial Action only apply to respond product liability claims with respect to all Releases of Hazardous Substances existing products sold prior to Closing and all other breaches of the representations and warranties in Section 3.24 shall be such to the percentage cap set forth in subsection (iv); and
(iv) with respect to a breach of any other representation or warranty set forth in Article III: thirty percent (30%) of such Seller's Indemnification Pro Rata Portion of the Base Purchase Price for indemnification claims made within six (6) months after the Closing Date at the Nebraska Property and fifteen percent ("Designated Remedial Action"15%) that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except Base Purchase Price for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionindemnification claims made thereafter.
(c) The indemnification provided In no event shall any Seller be liable in this Article IX shall be the sole aggregate under Section 9.1(a)(i) and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach (iii) and 9.1(b)(i) and (iii) in an amount in excess of any such Seller's Indemnification Pro Rata Portion of one hundred percent (100%) of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from Base Purchase Price; provided further that in no event shall ▇▇▇▇▇▇▇▇▇ be liable under Section 9.1(a) and 9.1(b) in an amount in excess of such individual's Indemnification Pro Rata Portion of one hundred percent (100%) of the transactions contemplated by this Base Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral AgreementPrice.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to paid in U.S. Dollars in the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesUnited States.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary set forth in this Agreement, (i) the Indemnifying Party Seller shall have no liability for not be liable hereunder to the Buyer Indemnified Parties pursuant to Section 10.3(a) as a result of any breach of any of the representations or warranties of the Seller set forth in Article III (other than the Seller Fundamental Representations) or in any certificate delivered by the Seller pursuant to Section 7.2(a) if the Losses of the Buyer Indemnified Parties arising from such claims until breach are less than Twenty Five Thousand Dollars ($25,000) (each, a “Minor Claim”); and (ii) the aggregate Buyer shall not be liable hereunder to the Seller Indemnified Parties pursuant to Section 10.4(a) as a result of any breach of any of the representations or warranties of the Buyer set forth in Article IV (other than the Buyer Fundamental Representations) or in any certificate delivered by the Buyer pursuant to Section 7.3(a) if the Losses arising from such breach do not exceed the amount of a Minor Claim.
(b) Notwithstanding anything to the contrary set forth in this Agreement, (i) the Seller shall not be liable hereunder to the Buyer Indemnified Parties pursuant to Section 10.3(a) as a result of any breach of any of the representations or warranties of the Seller set forth in Article III (other than the Seller Fundamental Representations) or in any certificate delivered by the Seller pursuant to Section 7.2(a), except to the extent that the Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate Two Million Five Hundred Thousand Dollars ($2,500,000200,000) (the "Threshold")“Deductible Amount”) and then once the Deductible Amount has been exceeded, the Seller Indemnified Parties may recover the full amount of their Losses other than for Minor Claims; provided however, in which no case will any Minor Claims be included or considered as Losses for purposes of calculating or administering the Indemnifying Party shall only be liable for Losses in excess of the Threshold, Deductible Amount and (ii) the Indemnifying Party Buyer shall have no liability for not be liable hereunder to the Seller Indemnified Parties pursuant to Section 10.4(a) as a result of any single claim unless breach of any of the amount representations or warranties of Losses for such claim exceeds Fifty Thousands Dollars the Buyer set forth in Article IV ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations Buyer Fundamental Representations) as set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations Agreement or in any certificate delivered by the Buyer pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees7.3(a), except for such Losses arising out of or related to the willful misconduct or gross negligence extent that the Losses incurred by the Seller Indemnified Parties as a result of Buyer. such breaches shall exceed in the aggregate the Deductible Amount and once the Deductible Amount has been exceeded, the Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with Indemnified Parties may recover the performance full amount of the Designated Remedial Action. Seller shall have Losses other than for Minor Claims; provided however, in no obligation hereunder to undertake Remedial Action which exceeds case will any Minor Claims be included or considered as Losses for purposes of calculating or administering the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionDeductible Amount.
(c) The indemnification provided Notwithstanding anything to the contrary set forth in this Article IX shall be Agreement, (i) the sole and exclusive remedy after Liability of the Closing Date for damages available to the parties to this Purchase Agreement for Seller under Section 10.3(a) as a result of any breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from of the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, Seller set forth in Article III (other than the Seller Fundamental Representations) or in any certificate delivered by the Seller pursuant to Section 7.2(a), shall not exceed in the aggregate Two Million Dollars ($2,000,000.00) (the “Cap Amount”) and (ii) the Liability of the Buyer under Section 10.4(a) as a claim result of any breach of any of the representations or action based on fraud warranties of the Buyer set forth in Article IV (other than the Buyer Fundamental Representations) or intentional misrepresentation; providedin any certificate delivered by the Seller pursuant to Section 7.3(a), however, this exclusive remedy for damages does shall not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementexceed in the aggregate the Cap Amount.
(d) All parties Except as provided in Section 10.3, no claim shall use commercially reasonable efforts be brought or maintained by the Indemnified Party or its successors or permitted assigns against any officer, director, equityholder or employee (present or former) of the Indemnifying Party in their individual capacity and no recourse shall be brought or granted against any of them in their individual capacity, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach of any of the representations, warranties or covenants of the Indemnifying Party set forth or contained in this Agreement or any Exhibit or Schedule hereto or any certificate delivered hereunder, except to mitigate their damagesthe extent that the same shall have been the result of knowing and intentional fraud by any such Person.
(e) If there is any outstanding balance on the Convertible NoteSubject to Section 5.3, any amounts payable by Seller to a Buyer Losses for which an Indemnified Party is entitled to collect indemnification from an Indemnifying Party shall not be affected by any investigation conducted by the Indemnified Party or its counsel or any knowledge acquired at any time, whether before or after execution and delivery of this Agreement or the Closing Date with respect to its indemnification the accuracy or inaccuracy of, or compliance with the representations, warranties, covenants or obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement All indemnification payments made hereunder shall be treated by all Parties as an adjustment to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesPrice.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a)Notwithstanding any of the foregoing provisions, as applicable, shall be subject to the following limitations: (i) the any Indemnifying Party shall have be obligated to indemnify, defend or hold harmless any Indemnified Party with respect to the matters covered by Sections 9.2(i) or 9.3(i), only to the extent the aggregate amount of Losses incurred by such Indemnified Party exceeds $100,000,000 (the "Deductible"); provided further that no liability for such claims individual Loss or series of related Losses shall be so asserted unless and until the aggregate amount that would be payable pursuant to each such Loss or series of related Losses exceeds an amount equal to $1,000,000, except for breach of Section 5.2(i), for which no individual Loss or series of related Losses shall be so asserted unless and until the aggregate amount that would be payable pursuant to each such Loss or series of related Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (exceeds an amount equal to $2,500,000) 10,000,000 (the "ThresholdMini-Basket") (it being understood that any such individual Losses or series of related Losses for amounts less than the Mini-Basket shall be ignored in determining whether the Deductible has been exceeded and thereafter), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability maximum amount with respect to Investor for any single claim unless which Seller will be obligated to indemnify Indemnified Parties in the amount of Losses for such claim exceeds Fifty Thousands Dollars (aggregate with respect to Section 9.2(i) will be $50,000), 2,500,000,000 and (iii) other than the maximum amount with respect to Losses based on fraud or intentional misrepresentation, Seller for which Investor will be obligated to indemnify Indemnified Parties in the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (AuthorizationSection 9.3(i) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently will be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required$2,500,000,000. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property Indemnification pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article ARTICLE IX shall be the sole and exclusive remedy after of the Closing Date Indemnified Parties at law or equity for damages available the matters described in Sections 9.2(i) and 9.3(i). This Section 9.7 shall not apply to claims based on common law fraud. The foregoing sentence is merely a recognition of the law of State of New York and shall not be deemed to expand in any way the rights the parties have under New York law. For purposes of any indemnification hereunder, Losses shall be determined without regard to any materiality or Material Adverse Effect qualification set forth herein. Notwithstanding anything herein to the parties contrary, Losses shall be net of (i) any insurance, indemnity, contribution or other similar payment actually received by the Indemnified Parties in connection with the facts giving rise to this Purchase Agreement for breach the right of indemnification and (ii) any of the terms, conditions, representations or warranties contained herein, any right, claim or action Tax Benefit arising from the transactions contemplated by incurrence of any such Losses, even if after the year in which payment pursuant to this Purchase Agreement or with respect ARTICLE IX is made (and to the Designated Remedial Actionextent of any Tax Benefit arising after the payment of any Losses pursuant to this ARTICLE IX, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does the Indemnified Party shall pay to the Indemnifying Party the amount of any such Tax Benefit). The Indemnified Party shall seek full recovery under all insurance policies and indemnification provisions covering any Loss to the same extent as it would if such Loss were not preclude a party from bringing subject to indemnification hereunder. In the event that an action for specific performance insurance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or recovery is made by any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied any Loss for which any such Person has been indemnified hereunder, then a refund equal to repay any outstanding the aggregate amount of the Convertible Note, dollar for dollar, until recovery less the Convertible Note is repaid in full. The rights out-of-pocket costs to indemnification under this Article IX obtain such recovery shall not otherwise be subject made promptly to set-off for any claim by the Indemnifying Party. In no event shall any Party against or any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with Parties be entitled to recover, or make a claim for, any amounts in respect to Losses (i) directly incurred from Third Party Claims of consequential, incidental or (ii) for actual indirect damages, lost profits or punitive damages, whether due to breach of representation, covenant or otherwise; provided that in the event of a breach by Investor of its representations, covenants or other obligations hereunder prior to the Closing, Seller, its Affiliates and their respective officers, directors, employees, partners, members, agents and advisors shall be entitled to recover and make a claim against (A) Investor or (B) the FIM Investors for amounts in respect of direct, consequential, incidental or indirect damages or lost profits (but not punitive damages; provided further, that in no event shall the amount of Losses for which Investor and the FIM Investors, collectively, are liable to Seller, its Affiliates or any other Person exceed a maximum amount of $1,000,000,000 in the aggregate and neither Seller, its Affiliates nor any other Person shall have the right to bring claims against Investor or the FIM Investors seeking damages in excess of such amount; and provided further, that in no event shall any FIM Investor have liability to Seller, its Affiliates or any other Person in excess of the limits set forth in the Equity Commitment Letter executed by such FIM Investor (which limits are hereby acknowledged by Seller).
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Motors Acceptance Corp)
Limitation on Indemnification. (aExcept for Claims arising by reason of fraud, willful misconduct or intentional misrepresentation, no indemnification payment by the Members with respect to any Claims otherwise payable under this Article 8 and arising out of or resulting from the causes enumerated in Section 8.1(b) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject payable until such time as all such Claims shall aggregate to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million more than One Hundred Twenty-Five Hundred Thousand Dollars ($2,500,000125,000) (the without giving effect for purposes of such determination to any "Threshold"Material Adverse Effect" or other materiality qualification set forth in any representation or warranty), in after which case time NSC and the Indemnifying Party Members shall only be liable in full for Losses in excess all such Claims; provided that this Section 8.5 shall not apply to the obligations of NSC and the ThresholdMembers (i) pursuant to Section 4.11 of this Agreement (provided, however, that if Buyer is reimbursed for any claim under Section 4.15 that a Receivable (other than an Aged Account) is not collectable, then Buyer shall re-assign such Receivable to NSC and NSC shall be entitled to enforce such Receivable as it may elect); and (ii) to deliver the Indemnifying Party shall have no liability Purchased Assets to Buyer free and clear of all security interests, encumbrances and charges or restrictions of any kind, except those specifically agreed to by Buyer. Except for any single claim unless the amount Claims arising by reason of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)fraud, and (iii) other than with respect to Losses based on fraud willful misconduct or intentional misrepresentation, in no event shall the Indemnifying Party's obligation of NSC and/or the Members to indemnify Buyer or Parties' aggregate liability its Affiliates for all such claims shall not under Section 8.1(b) of this Agreement exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a5,000,000) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as aggregate. In addition, in no event shall the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its individual indemnification obligations under this Article IX shall first be applied of a Member exceed an amount equal to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or such Member's percentage interest in NSC as set forth on Schedule 4.3, multiplied by (ii) for actual lost profits or incidental damagesthe Purchase Price.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amcol International Corp)
Limitation on Indemnification. (a) The Indemnifying Party's For purposes of determining whether there has been any breach of a representation or Parties' liability warranty, and for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount purposes of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless determining the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)resulting therefrom, and (iii) other than with respect to Losses based on fraud all qualifications or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth exceptions in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth referring to the terms “material”, “materiality”, “in Sections 3.1 (Organization)all material respects”, 3.3 (Authorization) “Material Adverse Effect” or any similar term or phrase shall be disregarded, it being the understanding of the parties that for purposes of determining Loss under Article VIII, the representations and 3.8(e) (ERISA Affiliate)warranties of the parties contained in this Agreement shall be read as if such terms and phrases were not included in them.
(b) Seller The following order of priority shall undertake apply for the recovery of Losses against Stockholder Indemnifying Parties pursuant to Section 8.02(a) and Section 8.02(d):
(i) first, Purchaser or the Company shall be responsible for all Remedial Action to respond to all Releases of Hazardous Substances existing prior Losses up to the Closing Date at amount of the Nebraska Property self-insured retention under the R&W Policy;
("Designated Remedial Action"ii) that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in second, the future until Purchaser Indemnified Parties shall recover such time as Losses by collecting insurance proceeds under the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access R&W Policy; and
(iii) third, to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for extent such Losses arising out exhaust the amount of coverage under the R&W Policy, the Purchaser Indemnified Parties shall recover such Losses from Stockholder or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionHoldco Seller.
(c) The maximum Liability for all Losses for which indemnification provided is sought under Section 8.02 or Section 8.03 shall not exceed, in this Article IX shall be the sole and exclusive remedy after aggregate, the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentationPrice; provided, howeverthat, this exclusive remedy for damages does such limitation shall not preclude a party from bringing an action for specific performance apply in the case of Fraud. Notwithstanding anything herein to the contrary, in no event shall Stockholder or other equitable remedy to require a party to perform its obligations Holdco Seller’s Liability under this Purchase Agreement and the other Transaction Documents exceed, in the aggregate, an amount equal to the proceeds received by Stockholder or any Collateral AgreementHoldco Seller hereunder; provided, that, such limitation shall not apply in the case of Fraud.
(d) All parties The amount to which any Indemnified Party is entitled hereunder shall use commercially reasonable efforts be reduced by the net amount of insurance proceeds (other than under the R&W Policy) actually received by the Indemnified Party in respect of such claim for indemnification, excluding any costs or expenses incurred by the Indemnified Party to mitigate their damagescollect such insurance proceeds and any increases in insurance premiums. If the Indemnified Party or any of its Affiliates receives any such insurance proceeds subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification payment up to the net amount of the relevant insurance proceeds, excluding any costs or expenses incurred by the Indemnified Party to collect such insurance proceeds and any increases in insurance premiums.
(e) If there is In no event shall any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect be entitled to its seek or receive indemnification obligations for the same Losses more than once under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's VIII even if a claim for indemnificationindemnification in respect of such Losses has been made as a result of a breach of more than one representation, warranty, covenant or agreement contained in this Agreement.
(f) The Purchaser Indemnified Parties shall not be entitled to indemnification under this Agreement if and to the extent that the Losses are included in the calculation of the Final Purchase Price. The order of priority set forth in Section 8.04(b) shall not apply to the payment by Holdco Seller of any amounts owed to Purchaser pursuant to Section 1.04. Notwithstanding anything contained in this Purchase Agreement herein to the contrary, in calculating the Final Net Working Capital, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party reserve with respect to Losses the Excluded Liabilities shall be included. To the extent that Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 8.02(a) or Section 8.02(d) and another subsection of Section 8.02, the Purchaser Indemnified Parties shall first seek to recover pursuant to Section 8.02(a) or Section 8.02(d).
(ig) directly incurred from Third Party Claims Stockholder, Holdco Seller and Purchaser agree to treat any payment made pursuant to Section 1.04 or (ii) this Article VIII as an adjustment to the Purchase Price for actual lost profits or incidental damagesfederal, state, local and non-U.S. Income Tax purposes.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Universal Corp /Va/)
Limitation on Indemnification. (a) The None of the SmartServ Indemnified Parties shall assert any Indemnification claim hereunder against any nReach Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a)Party until such time as, as applicable, shall be subject and solely to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until extent that, the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims which such parties may have against such nReach Indemnifying Parties shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)7,500.
(b) Seller None of the nReach Indemnified Parties shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future assert any Indemnification claim hereunder against SmartServ until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access as, and solely to the Nebraska Property pursuant to extent that, the Environmental Remediation License aggregate of all such claims which the nReach Shareholders have against SmartServ shall exceed $7,500.
(c) Notwithstanding any other term of this Agreement. Seller , the nReach Indemnifying Parties shall submit its plan(snot, in the aggregate, be liable under this Article VI (or otherwise) for Designated Remedial Action an amount which exceeds $750,000.
(d) At its sole option, in addition to all other rights and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and commentremedies that it may have, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer SmartServ shall have the right to be present and comment during all material conversations set off, in whole or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written informationin part, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in amounts owed under this Article IX shall VI to SmartServ by any nReach Indemnifying Party, against the Earnout Shares to be the sole and exclusive remedy after the Closing Date for damages available issued to the parties to this Purchase Agreement for breach of any of the termssuch nReach Indemnifying Parties hereunder, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damagesif any.
(e) If there is any outstanding balance on The parties have negotiated the Convertible Noteindemnification rights, any amounts payable by Seller to a Buyer Indemnified Party responsibilities and obligations set forth in this Article VI with the intention that this Article VI shall constitute each of their sole and exclusive remedy with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of and all losses, costs, claims, damages, liabilities, expenses (including, without limitation, the Convertible Notereasonable legal fees and expenses), dollar for dollardirectly or indirectly, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; providedor relating to any of the following: (a) any misrepresentation, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits breach of warranty, or incidental damages(iii) nonfulfillment of any covenant or other obligation; or (b) any conduct, action, inaction of any nReach Shareholder arising from or relating to the operation, management or ownership of nReach before the Closing Date, and in no event shall any nReach Shareholder (other than an nReach Shareholder who is also an nReach Indemnifying Party) have any liability to the SmartServ Indemnified Parties pursuant to this Article VI, or otherwise.
Appears in 1 contract
Sources: Reorganization and Stock Purchase Agreement (Smartserv Online Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred required to be paid by Seller and Members pursuant to Section 12.1 hereof shall not exceed Two Million Five Hundred Thousand Dollars the amount of the Purchase Price; provided, however, that no Member shall be liable, in the aggregate, for such Losses pursuant to Section 12.1 that are in excess of such Member’s Pro Rata Basis of the Purchase Price.
(b) The NovaMed Indemnified Parties shall be entitled to indemnification under Section 12.1(a) and Section 12.1(f) only if the aggregate amount of all Losses thereunder (on a cumulative basis) exceeds $2,500,000) 150,000 (the "Threshold"“Basket Amount”), in which case the Indemnifying Party Seller and Members shall be obligated to indemnify the NovaMed Indemnified Parties only be liable for Losses in the excess of the Thresholdaggregate amount of all such Losses over the Basket Amount.
(c) Seller Indemnified Parties shall be entitled to indemnification under Section 12.2(a) and Section 12.2(b) only if the aggregate amount of all Losses thereunder (on a cumulative basis) exceeds the Basket Amount, in which case Buyer shall be obligated to indemnify the Seller Indemnified Parties only for the excess of the aggregate amount of all such Losses over the Basket Amount.
(iid) the Indemnifying Party The rights set forth in this Article XII shall have no liability be each party’s sole and exclusive remedy for any single claim unless or dispute relating to any breach of a representation, warranty or covenant by the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)parties under this Agreement; provided, however, that the limitations set forth in this Section 9.5(a) 12.6 shall not apply to Parent's apply, and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth the aggrieved party shall have all remedies available at law and in Sections 3.1 (Organization)equity, 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(scase of (i) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude misrepresentation by a party from bringing an action for specific performance hereto or other equitable remedy (ii) any claim or dispute arising under or relating to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damagesArticle XI hereof.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained to the contrary herein, nothing in this Purchase Agreement to the contrary, no party Section 12.6 shall be liable deemed to the other party limit or impair NovaMed’s rights under Article XI hereof. In addition, for any special, punitive, exemplary or consequential loss or damage arising out purposes of this Purchase Agreement; providedSection 12.6, however, that the foregoing in no event shall not Losses be construed to preclude recovery by the Indemnified Party with respect include any remedies paid to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesNovaMed under Article XI.
Appears in 1 contract
Sources: Asset Contribution and Exchange Agreement (Novamed Inc)
Limitation on Indemnification. Notwithstanding any provision of this Article VIII to the contrary, Buyer shall not be entitled to assert any claim for indemnification in respect of claims for breach of representations or warranties or any other provision of this Agreement until such time as claims for indemnification shall exceed $10,000 (athe "Basket") The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, however Sellers shall be subject to the following limitations: (i) provisions of this Article VIII in respect of all claims which make up the Indemnifying Party shall have no liability for such claims until Basket once the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)Basket has been reached; provided, however, that the limitations set forth dollar amount of such indemnification obligations may not exceed, in this Section 9.5(athe aggregate, the sum of (a) the return of the Cambex Shares (or the fair market value thereof, as the case may be), (b) the aggregate amount paid by Buyer to the Sellers hereunder, and (c) the retention (or the return, as the case may be) of the Shares by, or to, the Buyer (such sum, the "Cap"), unless any Seller shall have provided information to Buyer, in connection herewith, or made representations or warranties hereunder, which (i) directly related to claims for which indemnification is sought and (ii) were fraudulent, in which event the Cap shall not apply to Parentsuch claims. Notwithstanding the foregoing, the Basket shall not apply to any breach of the representations and warranties contained in Section 2.13, 2.25 or 2.31 and the Cap shall not apply to any breach of the representations and warranties contained in Section 2.13. Notwithstanding anything to the contrary contained herein, Buyer's rights pursuant to this Article VIII with respect to each of the individual Sellers, and Buyer's obligations pursuant right to Section 5.1(b) or collect money damages from each of the individual Sellers elsewhere under this Agreement, shall be limited to Sellerthe multiple of (A x B), with A equal to the total amount of liability owing to Buyer and B equal to an individual Shareholder's obligations with respect to breach of any representation or warranty respective percentage ownership interest in the Company as set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)Schedule 1.01 hereto.
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary herein, (i) the Indemnifying Party Seller shall not have no any liability for such claims until under Section 10.01(a) unless the aggregate amount of the all Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"for which Seller would be liable under Section 10.01(a), in which case but for this clause (i), exceeds on a cumulative basis, an amount equal to $50,000, and then only to the Indemnifying Party shall only be liable for Losses in excess extent of the Thresholdany such excess, (ii) Seller’s aggregate liability under Section 10.01(a) shall in no event exceed, on a cumulative basis, the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), Seller Liability Cap and (iii) other than with respect to Losses based Sellers aggregate liability under this ARTICLE X shall in no event exceed, on fraud or intentional misrepresentationa cumulative basis, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)Closing Consideration.
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior Notwithstanding anything to the Closing Date at the Nebraska Property ("Designated Remedial Action"contrary herein, Purchaser shall only have liability under Section 10.02(e) that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access Section 10.02(g) only to the Nebraska Property pursuant extent that Purchaser is entitled to seek indemnification for such liability from Strakan (or its successors or assigns) under Section 11.1 of the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions Strakan Agreement (copies of which shall be provided to Buyer prior to their submission without giving effect to any Governmental Body) relating to amendments thereto following the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' feesClosing), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The Following the Closing, the Parties’ rights to indemnification provided in pursuant to this Article IX shall ARTICLE X shall, except for equitable relief and specific performance of covenants that survive Closing, be the sole and exclusive remedy after the Closing Date for damages available to the parties with respect to any matter arising under or in connection with this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Actionhereby, other than a claim or for claims of fraud. Purchaser hereby waives, from and after the Closing Date, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement it or any Collateral of its Affiliates may have against Seller and its Affiliates arising under or based upon this Agreement, the Ancillary Agreements, any document or certificate delivered in connection herewith, the Product, the Acquisition, the Acquired Assets and the Assumed Liabilities, or any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this ARTICLE X).
(d) All parties Notwithstanding any provision herein, neither Seller nor Purchaser shall use commercially reasonable efforts to mitigate their damages.
(e) If there is in any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party Party or any Indemnitee on account of any indemnity obligation set forth in Section 10.01 or Section 10.02 for any indirect, consequential, special, punitiveincidental or punitive damages (except punitive damages payable to a Third Party ), exemplary including loss of future revenue or consequential income, loss of business reputation or damage arising out opportunity relating to the breach or alleged breach of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits diminution of value or incidental damagesany damages based on any type of multiple.
Appears in 1 contract
Limitation on Indemnification. Notwithstanding anything to the contrary contained in this Agreement: (a) The an Indemnifying Party's or Parties' liability Party shall not be liable for all claims made under any claim for indemnification pursuant to Section 9.2(a) or Section 9.3(a), as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Losses incurred shall exceed Indemnifying Party equals or exceeds Two Million Five Hundred Fifty Thousand Dollars ($2,500,000) (the "Threshold"250,000), in which case the Indemnifying Party shall only be liable only for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of such Losses for such claim that exceeds Two Hundred Fifty Thousands Thousand Dollars ($50,000), 250,000) and (iii) subject to the other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)limitations set forth herein; provided, however, that the limitations maximum aggregate amount of indemnifiable Losses which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in this Section 9.5(a9.2(a), on the one hand, or Section 9.3(a), on the other hand, as the case may be, shall be an amount equal to Eight Million Dollars ($8,000,000) (the “Cap”), provided, further, that the foregoing limitations shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related relating to (i) the inaccuracy or breach of any Fundamental Representation or (ii) any representation or warranty in the event of Fraud; (b) except as otherwise provided in this Section 9.5, the maximum aggregate amount of Losses which may be recovered from the Indemnifying Party arising out of or relating to this Agreement shall be limited to an aggregate amount equal to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
Purchase Price; (c) The indemnification provided notwithstanding anything to the contrary herein, it is intended that the provisions of this Agreement will not result in a duplicative payment of any amount required to be paid under this Agreement such that a Party would receive payment on more than one occasion in respect of the same specific Loss and this provision will be construed accordingly; (d) for purposes of this Article IX 9, the representations and warranties of either Party qualified by any references to materiality, material adverse effect or any similar qualifier shall be deemed to have been made with such qualification for purposes of determining whether a breach occurred but, if such breach has occurred, shall be deemed to have been made without such qualification for purpose of determining the amount of any Losses resulting from any such breach; (e) the amount of any and all Losses under this Article 9 shall be reduced by the net Tax benefit actually realized by the Indemnified Party as a result of a deduction with respect to such Loss in the Tax period in which such Loss was incurred or the two (2) Tax periods immediately following the last day of such Tax period (with a 25% effective Tax rate being assumed for this purpose). The net Tax benefit that is actually realized by the Indemnified Party for a Tax period shall be the sole and exclusive remedy after excess, if any, of (x) the Closing Date Indemnified Party’s cumulative liability for damages available Taxes 37 through the end of such Tax period, calculated by excluding any Tax items attributable to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or payment with respect to the Designated Remedial ActionLoss at issue for all Tax periods, other than a claim or action based on fraud or intentional misrepresentation; providedover (y) the Indemnified Party’s actual cumulative liability for Taxes through the end of such Tax period, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy calculated by taking into account any Tax items attributable to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party payment with respect to its indemnification obligations under this Article IX shall first be applied the Loss at issue for all Tax periods (to repay any outstanding amount the extent permitted by relevant Tax Law). For the avoidance of doubt, the result of the Convertible Note, dollar for dollar, until foregoing is to treat such Tax items as the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off last items claimed for any claim by Tax period; and (f) each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the Indemnifying Party against any Indemnified Party, whether or not arising from minimum extent necessary to remedy the same event breach giving rise to such Indemnified Party's claim for indemnificationLoss.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Asset Purchase Agreement
Limitation on Indemnification. Notwithstanding anything to the contrary contained herein, Seller shall have no obligation to indemnify Buyer pursuant to (a) The Indemnifying Party's or Parties' Section 16.4(i) (excluding Seller’s liability for all claims made indemnification under Section 9.2(a16.4(i) or Section 9.3(a)for breaches of the Fundamental Representations) unless, as applicable, shall be subject and then only to the following limitations: extent that, (i) the Indemnifying Party shall have no liability for such claims until any individual claim exceeds Fifty Thousand Dollars ($50,000) and (ii) the aggregate amount losses to which Buyer would be entitled to indemnification (but for the provision of this Section 16.5) exceed a deductible equal to three percent (3%) of the Losses incurred shall Base Purchase Price and (b) Section 16.4(ix) unless, and then only to the extent that, the aggregate losses to which Buyer would be entitled to indemnification (but for the provisions of this Section 16.5) exceed Two Million Five a deductible equal to One Hundred Thousand Dollars ($2,500,000) (100,000). Notwithstanding anything to the "Threshold")contrary contained herein, in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' Seller’s aggregate liability for all such claims the indemnification under (x) Section 16.4(i) above shall not exceed One Hundred Twenty Five twenty (20%) of the Base Purchase Price, except for Seller’s liability for indemnification under Section 16.4(i) for breaches of the Fundamental Representations, (y) Section 16.4(ix) above shall not exceed Two Million Dollars ($125,000,0002,000,000) and (z) Sections 16.4(ii) through (vi) (after taking in account and - 50- including the amount of Seller’s aggregate liability for indemnification under Section 16.4(i) for breaches of any and all representations and warranties that are not Fundamental Representations and Section 16.4(ix); provided, however, that ) shall not exceed the limitations Base Purchase Price. Nothing in this Article 16 shall limit or otherwise modify the liability of Seller for breach of the special warranty of title set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach the Conveyances. For purposes of determining both the amount of Claims incurred by any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out member of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data Group and whether there has been a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of Seller’s representations and warranties for which any member of the termsBuyer Group is entitled to indemnification under Section 16.4, conditions, any materiality qualifiers in Seller’s representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; shall be disregarded (provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy each reference to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid “Material Contracts” in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing Section 5.6 shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesdisregarded).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Magnum Hunter Resources Corp)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject Notwithstanding anything to the following limitations: contrary in this Agreement or otherwise, the maximum aggregate amount that may be recovered by the Buyer Indemnified Parties or Seller Indemnified Parties under this Agreement (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) representations and warranties set forth in Section 3.1, Section 3.2, Section 3.4, Section 3.5, Section 3.6, Section 3.16, Section 4.1, Section 4.2, Section 4.6, Section 4.7 and Section 4.8 (the "Threshold"“Fundamental Representations”) and the representations and warranties set forth in Section 3.8), in which case shall not exceed the Indemnifying Party shall only be liable for Losses in excess of the ThresholdPurchase Price, and (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims representations and warranties set forth in ARTICLE III and ARTICLE IV, excluding the Fundamental Representations and the representations and warranties set forth in Section 3.8, shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that 10% of the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)Purchase Price.
(b) Seller No Party shall undertake all Remedial Action be liable for, and no amounts of indemnity shall be payable in the case of, any claim for inaccuracies or breaches of representations and warranties (other than the Fundamental Representations and the representations and warranties set forth in Section 3.8) unless and until the Indemnified Parties have suffered, incurred or sustained otherwise indemnifiable Losses hereunder (after giving effect to respond any application of any Indemnity Reduction Amounts in accordance with Section 7.5(c)) in excess of an amount equal to all Releases one percent (1%) of Hazardous Substances existing prior the Purchase Price in the aggregate (the “Deductible”), in which event the Indemnified Parties shall be entitled to claim indemnity for Losses only to the Closing Date at extent such Losses exceed the Nebraska Property Deductible. Without limiting the generality of the foregoing, no Party shall be liable with respect to any individual claim for inaccuracies or breaches of representations and warranties ("Designated Remedial Action"other than the Fundamental Representations and the representations and warranties set forth in Section 3.8) that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action otherwise indemnifiable Losses, and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments such Losses shall not be unreasonably rejected by Sellercounted toward satisfaction of the Deductible, before undertaking unless such Losses exceed an amount equal to two hundred fifty thousand dollars ($250,000). For purposes of calculating Losses under this ARTICLE VII, any work to be performed and/or making such submissions. Buyer shall have materiality or Material Adverse Effect qualifications in the right to be present representations and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which warranties shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actiondisregarded.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Midstream Partners, LP)
Limitation on Indemnification. (a) The In seeking indemnification for Losses under this Article VIII, the Indemnified Party shall make no claim against the parties obligated to provide indemnification (the “Indemnifying Party's or Parties' liability ”) for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for Losses unless and until such claims until the Losses aggregate amount of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (at least $2,500,000) 400,000 (the "Threshold")“Basket”) against any Indemnifying Party, in which case event the Indemnifying Indemnified Party shall only be liable may make claims solely for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)Basket; provided, however, that for purposes of determining whether Losses aggregate the limitations set forth Basket, such Losses shall be calculated without regard for any materiality, or Material Adverse Effect or similar qualifiers or exceptions in the representations or warranties that have been breached or allegedly breached. The aggregate liability of any Indemnifying Party pursuant to this Article VIII shall not exceed $6,000,000 (the “Cap”). Notwithstanding anything to the contrary contained in this Section 9.5(aAgreement, the Basket and the Cap will not apply: (i) shall not apply to Parent's in the case of the Buyer Indemnifying Parties, for any breach or default in connection with the representation and Buyer's obligations pursuant to Section 5.1(bwarranty in Sections 5.2 or 5.4, any of the covenants in Sections 6.16 or 6.22, or as provided in clauses (C) or (D) of Section 8.2(b); (ii) in the case of the Seller Indemnifying Parties, for any breach or default in connection with the representation and warranty in Sections 4.2, 4.3, 4.9(b), 4.13, and 4.16, any of the covenants in Section 6.16, or as provided in clause (C) of Section 8.2(a); and (iii) as to Seller's obligations with respect to any Indemnifying Party, any breach of any a representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)resulting from fraud or willful misconduct.
(b) Seller shall undertake all Remedial Action to respond to all Releases Notwithstanding any other provisions of Hazardous Substances existing prior this Agreement to the Closing Date at contrary, neither Seller nor the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which Group shall be provided required to Buyer prior indemnify or otherwise protect the Indemnified Parties for damage to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body reputation, lost business opportunities, lost profits, mental or emotional distress, incidental, special, exemplary, indirect or consequential damages, interference with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out business operations or diminution of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out value of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionproperty.
(c) The indemnification provided Sellers shall have no liability or obligation to any Indemnified Party for any Loss to the extent the liability attributable to such Loss is included in this Article IX shall be the sole and exclusive remedy after the Closing Date Working Capital Statement prepared in accordance with Section 3.3 and Section 3.4 hereof (and such Loss shall not be included as a Loss for damages available to the parties to this Purchase Agreement for breach of any purposes of the termsBasket or the Cap). In addition, conditionsBuyer acknowledges that the Estimated Closing Date Working Capital Statement and the Closing Date Working Capital Statement reflect agreed adjustments as identified on Schedule 1.1(mmm) and, representations or warranties contained hereinaccordingly, Buyer Group shall not be entitled to bring any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Actionmatters included in Adjustment #1, other than a claim Adjustment #2 and Adjustment #3 identified on Schedule 1.1(mmm) if the adjustments set forth therein shall be or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy be determined to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementbe insufficient.
(d) All parties The amount of any Loss shall use commercially reasonable efforts be determined without duplication or double counting of the same Loss under Sections 8.2(a) or 8.2(b), if applicable. For the avoidance of doubt, all matters relating to mitigate their damages.
(e) If there is any outstanding balance the Closing Date Working Capital Statement, to the extent that such matters are either reflected on the Convertible NoteClosing Date Working Capital Statement or were the subject of a dispute under Section 3.3 hereof, any amounts payable shall be finally settled in accordance with Section 3.3. In the event that Losses incurred by Seller Indemnified Party’s result from the conduct of the Business both prior to a Buyer and after the Closing, Indemnified Party with respect to its indemnification Party’s obligations under this Article IX 8 (and any amounts applied towards the Basket) shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to based solely on such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement Losses to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage extent arising out of this Purchase Agreement; providedthe conduct of the Business prior to the Closing Date, however, that the foregoing and Seller shall not be construed responsible for such Losses to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims extent arising out of the conduct of the Business on or (ii) for actual lost profits or incidental damagesafter the Closing Date.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability indemnification provided for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, in Articles 13 and 14 shall be subject to the following limitations: :
(ia) The Seller shall not be obligated to make any payment for indemnification pursuant to Section 13.1 in respect of any General Claim (except those based upon, arising out of or otherwise in respect of Sections 4.1, 4.2, 4.11, 4.20, 5.3.1 and 6.3.1 (the Indemnifying Party shall have no liability for such claims "BASKET EXCLUSIONS")) until the aggregate amount of such payments, exclusive of those in respect of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars (Basket Exclusions, exceeds $2,500,000) 250,000 (the "ThresholdBASKET AMOUNT"), in which case whereupon the Indemnifying Party Seller shall only be liable obligated to pay all such amounts for Losses indemnification in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000)Basket Amount; provided, however, that solely for determining whether the limitations amount of the Seller's indemnification obligations exceed $250,000 in the aggregate, a breach of the Seller's representations or warranties shall be determined without regard to any limitation or qualification as to materiality set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any such representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)warranty.
(b) Seller The Buyer shall undertake all Remedial Action be entitled to respond to all Releases receive any indemnification payments in respect of Hazardous Substances existing prior the Basket Exclusions without regard to the Closing Date at individual or aggregate amounts thereof and without regard to whether the Nebraska Property ("Designated Remedial Action") that is necessary to comply with aggregate of all applicable Environmental Law as may currently be in effect or may come into effect other indemnification payments shall have exceeded, in the future until such time as aggregate, the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial ActionBasket Amount.
(c) The Seller's maximum liability for indemnification provided in this payment under Article IX 13 shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement$6,000,000.
(d) All parties In the event that the Indemnifying Party is obligated to indemnify the Indemnified Party pursuant to this Article 13 or Article 14, the Loss shall use commercially reasonable efforts to mitigate their damagesbe reduced by the amount actually received by the Indemnified Party from its insurance carriers.
(e) If there is From and after the Closing Date, the remedies provided in Section 11.10, Section 17.13 and Articles 13 and 14 of this Agreement shall be exclusive and neither party shall be entitled to any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid other remedy at law or in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationequity.
(f) Notwithstanding anything No fact, circumstance or omission shall constitute a breach of any representation, warranty, covenant or agreement of the Seller contained in this Agreement or any certificates or schedules delivered by the Seller pursuant hereto if ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ "Buzz" ▇▇▇▇▇ or Wiley ▇. ▇▇▇▇▇ has or had actual knowledge thereof on or prior to the date of this Agreement.
(g) To the extent that any fact, circumstance or omission would constitute a breach hereunder and would also constitute or have constituted a breach if timely asserted under the Asset Purchase Agreement to dated as of March 13, 1998 by and between the contrarySeller and Glendale (the "ORIGINAL AGREEMENT"), no party then the Buyer's sole remedy under this Agreement shall be liable to an assignment of the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Seller's rights under the Original Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for No Indemnified Party shall be entitled to indemnification hereunder with respect to an Indemnifiable Claim arising out of a Misrepresentation (or, if more than one such Indemnifiable Claim is asserted, with respect to all claims made under Section 9.2(a) or Section 9.3(asuch Indemnifiable Claims), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until unless the aggregate amount of all Damages of the Losses incurred shall exceed Two Million Five Hundred Indemnified Party with respect to such Indemnifiable Claim exceeds Twenty Thousand Dollars ($2,500,000) (the "Threshold"20,000.00), in which case the Indemnifying event such Indemnified Party shall only be liable entitled to indemnification hereunder for Losses in excess Damages with respect to the first dollar of such Damages and not just the Threshold, amount that exceeds Twenty Thousand Dollars ($20,000.00) and (ii) unless the Indemnifying Indemnified Party asserts its Indemnifiable Claims arising out of such a Misrepresentation within one (1) year of the Closing Date, provided, that no time limitations shall apply to a Misrepresentation of Fundamental Representations, provided further, that any Indemnifiable Claim asserted by an Indemnified Party on or prior to the date such Indemnifiable Claim would terminate in accordance with this Section 5.04 shall continue until the liability of the of the Other Party shall have no liability been determined pursuant to this Article V, and the Other Party shall have reimbursed the Indemnified Party for any single claim unless the full amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than Damages in accordance with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).Article V.
(b) Seller Notwithstanding the foregoing, in no event shall undertake all Remedial Action Purchaser, Seller, nor any of their respective managers, members, shareholders, officers, directors, employees, agents, representatives, parent, subsidiary or affiliates, or any of their successors or assigns, be liable (unless such party is required to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect pay such damages in the future until such time as the Designated Remedial Action results in context of a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(sthird party claim) for Designated Remedial Action and final drafts any punitive, exemplary or special damages or any damages that are remote or speculative such that applicable law would deny recovery for breaches of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actioncontract.
(c) The indemnification aggregate liability of any Indemnifying Party for any Indemnifiable Claims shall not exceed the Purchase Price (the “Cap”). Notwithstanding anything to the contrary contained herein, the limitation set forth herein shall not apply to any Indemnifiable Claims which arise out of fraud, criminal activity or intentional misrepresentations by Seller or Purchaser (as the case may be) or any breach of any Fundamental Representations (as defined herein) set forth in this Agreement or breach or nonfulfillment of any covenants made in this Agreement.
(d) From and after the Closing Date, the remedies provided in this Article IX V shall be the sole and exclusive remedy after remedies of the Closing Date for damages Parties and their respective officers, directors, employees, affiliates, agents, representatives, parent, subsidiary or affiliated corporations, or their successors and assigns for, and limit any other remedies which may be available to for, any and all Damages arising out of, relating to, or resulting from, any inaccuracy in or breach or nonfulfillment of the representations or warranties made by the parties to in this Purchase Agreement for or any breach or nonfulfillment of any of the terms, conditions, representations covenants or warranties contained herein, any right, claim or action arising from the transactions contemplated by agreements made in this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Credit Agreement (Stock Building Supply Holdings, Inc.)
Limitation on Indemnification. (a) The Indemnifying Party's Notwithstanding anything to the contrary in this Agreement, including, without limitation, Section 6.2 or Parties' liability for Section 6.3, in no event shall Buyer have or assert any claim against Seller or the Majority Member, or shall Seller have or assert any claim against Buyer based upon or arising out of the breach of any representation, warranty, covenant, agreement or obligation under this Agreement or otherwise relating to the subject matter of this Agreement unless, until and to the extent that the aggregate of all such claims made under Section 9.2(a) or Section 9.3(a)6.2, as applicable, shall be subject to in the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount case of the Losses incurred shall exceed Two Million Five Hundred Buyer or any Buyer Indemnitee, or under Section 6.3, in the case of Seller or any Seller Indemnitee, exceeds Fifty Thousand Dollars ($2,500,00050,000) (the "“Indemnification Threshold"), in ”) (at which case point the Indemnifying Party shall only indemnifying party will be liable for Losses in excess of obligated to indemnify the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), indemnified party from and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for against all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that Adverse Consequences relating back to the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliatefirst dollar).
(b) Notwithstanding anything to the contrary in this Agreement, including, without limitation, Section 6.2, Seller and the Majority Member, in the aggregate, shall undertake all Remedial Action have no liability under this Agreement to respond to all Releases Buyer or any Buyer Indemnitee in excess of Hazardous Substances existing $825,000, except with respect to:
(i) claims for Fundamental Representations, which, in the aggregate, shall not exceed the Purchase Price actually received by Seller as of the date of payment of the applicable indemnification claim (A) valuing the Buyer Shares at the lower of (x) the market price at the time of payment of the indemnification claim based on the five-day volume weighted average price of HLCO common stock immediately prior to the Closing Date date of payment and (y) $3,500,000, (B) valuing the Earnout Shares at the Nebraska Property ("Designated Remedial Action") that is necessary lower of the market price at the time of issuance to comply with all applicable Environmental Law as may currently be in effect Seller or may come into effect in at the future until such time as of payment of the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over indemnification claim, either way based on the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access five-day volume weighted average price of HLCO common stock immediately prior to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(sdate of payment), and
(ii) for Designated Remedial Action claims and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on common law fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementcriminal activity.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability provisions for all claims made indemnity under Section 9.2(aSections 9.1(b) or Section 9.3(aand 9.2(b), as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until effective only when the aggregate amount of any single Loss (or series of related Losses) for which indemnification is sought from Seller or the Losses incurred shall exceed Two Million Five Hundred Buyer, under Sections 9.1(b) or 9.2(b), respectively, when added to the amounts for which indemnification is sought under the corresponding provisions of the Hong Kong Purchase Agreement, exceeds Ten Thousand Dollars (US$10,000.00) in the aggregate, but then to the full extent of such Losses (including the first $2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess 10,000.00 of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA AffiliateLosses).
(b) The provisions for indemnity under Sections 9.1(b) and 9.2(b), as the case may be, shall be effective only when the aggregate amount of all Losses, for which indemnification is sought from Seller shall undertake all Remedial Action to respond to all Releases or the Buyer, under Sections 9.1(b) or 9.2(b), respectively (excluding Losses for which indemnification would not be available as a result of Hazardous Substances existing prior clause (a) above), when added to the Closing Date at amounts for which indemnification is sought under the Nebraska Property corresponding provisions of the Hong Kong Purchase Agreement, exceeds Twenty Thousand Dollars ("Designated Remedial Action"US$20,000.00) that is necessary to comply with all applicable Environmental Law as may currently be (the “Indemnity Basket”), in effect or may come into effect in which event the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which Indemnifying Party shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and liable for all Losses arising out in excess of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionamount.
(c) The indemnification provided in this Article IX obligations of Seller or the Buyer pursuant to Sections 9.1(b) or 9.2(b), as the case may be, shall be effective only until the sole and exclusive remedy after aggregate dollar amount paid by the Closing Date for damages available Indemnifying Party in respect of all Losses indemnified against under such Sections, when added to the parties to this Purchase Agreement for breach amounts of any Losses indemnified against under the corresponding provisions of the termsHong Kong Purchase Agreement, conditions, representations or warranties contained herein, any right, claim or action arising from equals Three Hundred Sixty Thousand Dollars (US$360,000.00) (the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement“Indemnity Cap”).
(d) All parties Notwithstanding the foregoing, the limitations of Sections 9.6(a), 9.6(b) and 9.6(c) shall use commercially reasonable efforts not apply to mitigate their damagesany breach arising out of the Fundamental Representations or from the fraud or intentional misrepresentation of a party.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its All indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of paid in U.S. Dollars in the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationUnited States.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party liability, obligation, contract or other matter shall be liable constitute a breach of any representation or warranty of Seller or entitle the Buyer to indemnification hereunder, to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, extent that Seller demonstrates:
(i) that the foregoing liability, obligation, contract or other matter arises or is materially increased in circumstances in which the Buyer acts or omits to act after the Closing and knows or should reasonably have known that such act or omission would give rise to or increase such a claim and a reasonable alternative course of action which would not prejudice the Buyer was available to the Buyer which would not have given rise to such claim or a claim of such amount;
(ii) that the liability, obligation, contract or other matter is set out in the Disclosure Schedules;
(iii) that the liability, obligation, contract or matter which would otherwise constitute a breach was actually known to the Buyer as of the date hereof or actually known to the Buyer as of the Closing Date and would have given the Buyer the right not to proceed with the Closing had the Buyer elected to exercise such right;
(iv) that the liability, obligation, contract or other matter arises or is increased as a result of any increase in Tax rates after Closing, or the passing of any Law with retrospective effect, or any provision or reserve related to the Closing being insufficient by reason only of any increase in Tax rates after Closing;
(v) that the liability, obligation, contract or other matter arises as a result of any change in the accounting policy or practice of the Business introduced after Closing; or
(vi) that the liability, obligation, contract or other matter arises or is increased as a result of any act or omission of Seller undertaken prior to Closing, at the written request of, or with the prior written approval of, the Buyer.
(g) If Seller pays to the Buyer an amount in respect of any claim under this Agreement and the Buyer subsequently recovers from a third party (including an insurer) a sum which is related to that claim, the Buyer shall promptly repay to Seller so much of the amount paid by Seller, as applicable, as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by the Buyer in obtaining that payment and in recovering that sum from the third party.
(h) Seller shall not be construed liable for any breach or non-fulfillment of any of the representations or warranties contained herein, if and to preclude recovery by the Indemnified Party with respect to Losses extent that the Loss occasioned thereby has been recovered under the same or any other representation or warranty contained herein.
(i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesNothing shall diminish the Buyer’s common law obligation to mitigate its loss.
Appears in 1 contract
Limitation on Indemnification. (ai) The Indemnifying Party's Except as set forth in Section 7(d)(ii) below, no indemnification shall be available to Buyer Indemnitees or Parties' liability for all claims made under Seller Indemnitees pursuant to Section 9.2(a7(b)(i)(A), Section 7(b)(ii)(A) or Section 9.3(a7(c)(i), as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims unless and until the aggregate amount of Losses for which indemnification would otherwise be available under Section 7(b)(i)(A), Section 7(b)(ii)(A) or Section 7(c)(i), as the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars case may be, equals or exceeds seven-tenths of one percent ($2,500,0000.7%) (of the "Threshold")Base Purchase Price, in which case the Indemnifying Party Buyer Indemnitees or the Seller Indemnitees, as the case may be, shall only be liable for entitled to recover all such Losses in excess of seven-tenths of one percent (0.7%) of the ThresholdBase Purchase Price. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to Section 7(b)(i)(A), Section 7(b)(ii)(A) or Section 7(c)(i), as the case may be, shall be an amount equal to the Escrow Amount and which, in the case of any amounts owed by Principals or Sellers for indemnification pursuant to Section 7(b)(ii)(A), shall be satisfied in accordance with Section 7(g).
(ii) Notwithstanding anything herein to the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000)contrary, and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a7(d)(i) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization)claims based upon, 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees)of, except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to any (A) breach of or inaccuracy in any Fundamental Representation or Statutory Representation, (B) breach of any covenant, agreement or obligation to be performed by Sellers contained in Section 5, (C) indemnification items set forth in Section 7(b)(ii)(B) through Section 7(b)(ii)(G) above, or (D) fraud, intentional misrepresentation or willful misconduct. The maximum aggregate amount of all indemnifiable Losses which may be recovered by Buyer Indemnitees pursuant to this Section 7 shall not exceed the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentationNet Purchase Price; provided, however, provided that this exclusive remedy for damages does limitation shall not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party apply with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount claims of the Convertible Notefraud, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether intentional misrepresentation or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationwillful misconduct.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MSA Safety Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability for all claims made under Section 9.2(a) or Section 9.3(a), as applicable, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until the aggregate amount Any of the Losses incurred shall foregoing notwithstanding, in no event will the individual indemnification obligations of Airlog, CHI and Purchaser pursuant to this Article X exceed Eleven Million Two Million Five Hundred Fifty Thousand Dollars ($2,500,000) (the "Threshold"11,250,000.00), in which case the Indemnifying Party shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Three Million Seven Hundred Fifty Thousands Thousand Dollars ($50,000), 3,750,000.00) and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Fifteen Million Dollars ($125,000,00015,000,000.00); provided, howeverrespectively. If Sellers pursuant to Section 21.10 hereof supplement or amend any Schedule with respect to any matter that existed as of the date of this Agreement and should have been set forth or described in any Schedule, that and if Purchaser nevertheless closes the limitations transaction, Sellers shall not be liable to Purchaser for any matter set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) any such supplement or to Seller's obligations with respect to any breach of any representation or warranty arising from the matter set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate)any such supplement.
(b) Seller shall undertake all Remedial Action to respond to all Releases Any of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect foregoing notwithstanding, in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies event that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access Sellers are obligated to the Nebraska Property indemnify Purchaser pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s(x) Section 10.2(a)(i) or (ii) hereof for Designated Remedial Action and final drafts of any other submissions and/or material correspondence Losses resulting from or attributable to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained hereinin Section 4.12 hereof which relate solely to federal income taxes or (y) Section 10.2(a)(iv) hereof (collectively, any right"Qualified Losses"), claim or action arising from the transactions contemplated by this Purchase Agreement or with respect Sellers' indemnification obligation shall be limited to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or amount that such Qualified Losses (when taken together with any Collateral Agreement.
(dprior Qualified Losses) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on exceed the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount net operating losses of the Convertible NoteCorporation on June 30, dollar for dollar, until 1997 that either (x) are available to the Convertible Note is repaid in full. The rights Corporation to indemnification under this Article IX shall not otherwise be subject to set-off for any claim offset against such Qualified Losses or (y) have been utilized by the Indemnifying Party Corporation to offset against any Indemnified Partyincome of the Corporation earned subsequent to June 30, whether or not arising from 1997. Purchaser and Corrpro agree that they will not, and will cause the same event giving rise Corporation to not, elect to forego the Corporation's ability to carryback such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.Closing Date
Appears in 1 contract
Sources: Stock Purchase Agreement (Corrpro Companies Inc /Oh/)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability provisions for all claims made indemnity under Section 9.2(aSections 9.1(b) or Section 9.3(aand 9.2(b), as applicablethe case may be, shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims until effective only when the aggregate amount of any single Loss (or series of related Losses) for which indemnification is sought from Seller or the Losses incurred shall exceed Two Million Five Hundred Buyer, under Sections 9.1(b) or 9.2(b), respectively, when added to the amounts for which indemnification is sought under the corresponding provisions of the Japan Purchase Agreement, exceeds Ten Thousand Dollars (US$10,000.00) in the aggregate, but then to the full extent of such Losses (including the first $2,500,000) (the "Threshold"), in which case the Indemnifying Party shall only be liable for Losses in excess 10,000.00 of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA AffiliateLosses).
(b) The provisions for indemnity under Sections 9.1(b) and 9.2(b), as the case may be, shall be effective only when the aggregate amount of all Losses, for which indemnification is sought from Seller shall undertake all Remedial Action to respond to all Releases or the Buyer, under Sections 9.1(b) or 9.2(b), respectively (excluding Losses for which indemnification would not be available as a result of Hazardous Substances existing prior clause (a) above), when added to the Closing Date at amounts for which indemnification is sought under the Nebraska Property corresponding provisions of the Japan Purchase Agreement, exceeds Twenty Thousand Dollars ("Designated Remedial Action"US$20,000.00) that is necessary to comply with all applicable Environmental Law as may currently be (the “Indemnity Basket”), in effect or may come into effect in which event the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which Indemnifying Party shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and liable for all Losses arising out in excess of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Actionamount.
(c) The indemnification provided in this Article IX obligations of Seller or the Buyer pursuant to Sections 9.1(b) or 9.2(b), as the case may be, shall be effective only until the sole and exclusive remedy after aggregate dollar amount paid by the Closing Date for damages available Indemnifying Party in respect of all Losses indemnified against under such Sections, when added to the parties to this Purchase Agreement for breach amounts of any Losses indemnified against under the corresponding provisions of the termsJapan Purchase Agreement, conditions, representations or warranties contained herein, any right, claim or action arising from equals Three Hundred Sixty Thousand Dollars (US$360,000.00) (the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement“Indemnity Cap”).
(d) All parties Notwithstanding the foregoing, the limitations of Sections 9.6(a), 9.6(b) and 9.6(c) shall use commercially reasonable efforts not apply to mitigate their damagesany breach arising out of the Fundamental Representations or from the fraud or intentional misrepresentation of a party.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its All indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of paid in U.S. Dollars in the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnificationUnited States.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party liability, obligation, contract or other matter shall be liable constitute a breach of any representation or warranty of Seller or entitle the Buyer to indemnification hereunder, to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, extent that Seller demonstrates:
(i) that the foregoing liability, obligation, contract or other matter arises or is materially increased in circumstances in which the Buyer acts or omits to act after the Closing and knows or should reasonably have known that such act or omission would give rise to or increase such a claim and a reasonable alternative course of action which would not prejudice the Buyer was available to the Buyer which would not have given rise to such claim or a claim of such amount;
(ii) that the liability, obligation, contract or other matter is set out in the Disclosure Schedules;
(iii) that the liability, obligation, contract or matter which would otherwise constitute a breach was actually known to the Buyer as of the date hereof or actually known to the Buyer as of the Closing Date and would have given the Buyer the right not to proceed with the Closing had the Buyer elected to exercise such right;
(iv) that the liability, obligation, contract or other matter arises or is increased as a result of any increase in Tax rates after Closing, or the passing of any Law with retrospective effect, or any provision or reserve related to the Closing being insufficient by reason only of any increase in Tax rates after Closing;
(v) that the liability, obligation, contract or other matter arises as a result of any change in the accounting policy or practice of the Business introduced after Closing; or
(vi) that the liability, obligation, contract or other matter arises or is increased as a result of any act or omission of Seller undertaken prior to Closing, at the written request of, or with the prior written approval of, the Buyer.
(g) If Seller pays to the Buyer an amount in respect of any claim under this Agreement and the Buyer subsequently recovers from a third party (including an insurer) a sum which is related to that claim, the Buyer shall promptly repay to Seller so much of the amount paid by Seller, as applicable, as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by the Buyer in obtaining that payment and in recovering that sum from the third party.
(h) Seller shall not be construed liable for any breach or non-fulfillment of any of the representations or warranties contained herein, if and to preclude recovery by the Indemnified Party with respect to Losses extent that the Loss occasioned thereby has been recovered under the same or any other representation or warranty contained herein.
(i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagesNothing shall diminish the Buyer’s common law obligation to mitigate its loss.
Appears in 1 contract
Limitation on Indemnification. (a) The Indemnifying Party's After Closing, save in the case of fraud or Parties' fraudulent concealment, the obligations of indemnification set forth in this Agreement shall exclusively govern the liability of the Parties under this Agreement for all claims made under Section 9.2(athe warranties described in Sections 11.1a) or Section 9.3(a), as applicable, and 11.2a) and shall be subject (with respect to the following limitations: (obligations of indemnification in Sections 11.1a) and 11.2a)):
i) with respect to any particular claim for Losses, not apply and save in the case of fraud or fraudulent concealment, the Indemnifying Party shall have no liability unless notification of any cause of indemnification has been given in accordance with Section 11.5 within two years after the Closing Date (except for such claims until any claim arising from (x) the aggregate amount intellectual property warranty (Section 4.1k)) in which case notification must be given within 18 months after the Closing Date and (y) the transactional warranties (Sections 4.1b), 4.1c), 4.1d), 4.2b), 4.2c), 4.2d), 4.3b), 4.3c) or 4.3d)), in which case notification may be given at any time and the Indemnifying Party shall be liable for an unlimited period), except in the event of fraud or fraudulent concealment, in which case notification may be given at any time and the Indemnifying Party shall be liable for an unlimited period;
ii) not apply and the Indemnifying Party shall have no liability to the extent that any Loss results from the wilful misconduct, bad faith, recklessness and/or fraud or fraudulent concealment of the Losses incurred Party seeking indemnification;
iii) not apply and the Indemnifying Party shall exceed Two Million have no liability except if a Loss exceeds Five Hundred Thousand Dollars thousand ($2,500,000US) dollars (U.S.$5,000) (the entirety, and not the excess over Five thousand (US) dollars (U.S.$5,000) of such Loss, a "ThresholdPermitted Loss")) and for these purposes each Loss resulting from a series of related claims with respect to related facts or circumstances shall be aggregated and deemed to be a single Loss;
iv) not apply and the Indemnifying Party shall have no liability until the Permitted Losses in the aggregate exceed Five hundred thousand (US) dollars (U.S.$500,000) in which case the obligation of indemnification shall apply to the entire amount, except in the event of fraud or fraudulent concealment, in which case the Indemnifying Party shall only be liable for Losses in excess the entire amount of the Threshold, (iiLosses;
v) not apply and the Indemnifying Party shall have no liability to the extent that the Losses claimed have been actually reimbursed through insurance to the Indemnified Party in which case the Indemnified Party shall refund any amount recovered to the Indemnifying Party to the extent such amount has previously been recovered from the Indemnifying Party under this Agreement;
vi) not exceed Twelve million (US) dollars (U.S.$12,000,000) in the aggregate for any single claim unless all Permitted Losses relating to all claims, except in the event of fraud or fraudulent concealment, in which case the Indemnifying Party shall be liable for an unlimited amount;
vii) be reduced by the amount of the Losses for that are due to the failure of an Indemnified Party to mitigate such claim exceeds Fifty Thousands Dollars ($50,000), and (iiiLosses as required by Section 11.4;
viii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations The obligations of indemnification set forth in this Section 9.5(aSections 11.1a) and 11.2a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with in respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior a claim to the Closing Date at extent that the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect same or may come into effect circumstances giving rise thereto are fairly disclosed in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access Section to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) Disclosure Schedule relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out subject matter of the Designated Remedial Action (including reasonable attorneys' feesclaim;
ix) Notwithstanding any other provision of this Agreement, no provision herein shall be deemed a waiver by any party of any right to specific performance or injunctive relief permitted pursuant to this Agreement, or any right or remedy arising by reason of a claim of fraud; For the avoidance of doubt, for the purpose of Section 11.9a)vi), except for such Losses arising out the obligation to indemnify and limitation of or related liability shall apply as if Indemnified Party meant the Vendor and Zarlink Canada taken together on the one hand, and the Purchasers taken together on the other hand; Neither the Vendor Indemnities, taken together, nor the Purchaser Indemnities, taken together, shall be entitled to the willful misconduct or gross negligence recover any sum in respect of Buyer. Seller shall promptly provide any claim pursuant to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification indemnity provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable extent that to do so would involve recovery more than once in respect of the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damagessame Loss.
Appears in 1 contract
Sources: Asset Purchase Agreement (Zarlink Semiconductor Inc)
Limitation on Indemnification. (a) The Indemnifying Party's or Parties' liability Any provision of this Agreement to the contrary notwithstanding, no claim for all claims made indemnification by either party against the other party under Section 9.2(a) or Section 9.3(a), as applicable, this Agreement shall be subject to the following limitations: (i) the Indemnifying Party shall have no liability for such claims valid and assertible unless and until the aggregate amount of the Losses incurred shall exceed Two Million all claims by such party exceeds Twenty-Five Hundred Thousand Dollars ($2,500,00025,000) (the "ThresholdBasket Amount"), in which case and then such party may only seek indemnification to the Indemnifying Party extent all claims exceed the Basket Amount; and provided, further, that no party's aggregate indemnification liability under this Agreement, together with any other damages, whether direct or indirect, arising from or relating to the transfer of Assets from Seller to Purchaser and the other transactions contemplated hereby to be completed at or before the Closing, shall only be liable for Losses in excess of the Threshold, (ii) the Indemnifying Party shall have no liability for any single claim unless the amount of Losses for such claim exceeds Fifty Thousands Dollars ($50,000), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party's or Parties' aggregate liability for all such claims shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided, however, that the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) or to Seller's obligations with respect to breach of any representation or warranty set forth in Sections 3.1 (Organization), 3.3 (Authorization) and 3.8(e1,000,000) (ERISA Affiliatethe "Cap").
(b) Seller shall undertake all Remedial Action to respond to all Releases . Notwithstanding any provision of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreement.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party the Basket Amount and the Cap shall be liable not apply to: (i) a failure of Seller to perform, pay or discharge any liability not assumed by Purchaser under this Agreement; (ii) any party's failure to comply with its affirmative obligations under this Agreement; (iii) a failure of Seller to remove any Liens on the Assets prior to the Closing Date, except for such Liens listed on Schedule 3.10; (iv) any breach of the representations and warranties set forth in Sections 3.7, 3.18 or 3.23; (v) a breach of confidentiality; (vi) infringement of a patent, copyright, trademark, trade secret, or other party for proprietary right (except any specialand all claims made against Purchaser by PDI, punitiveor any successor of PDI, exemplary or consequential loss or damage resulting from, arising out of this Purchase or in any way related to the PDI Agreement); provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (ivii) directly incurred from Third Party Claims fraud or intentional misrepresentation of a material fact; or (iiviii) for actual lost profits Seller's non-compliance with the provisions of any bulk transfer law or incidental damagesthe WARN Act.
Appears in 1 contract
Limitation on Indemnification. Notwithstanding anything to the contrary set forth in Section 11.1(a) of this Agreement or elsewhere in this Agreement, (a) The Indemnifying PartyPurchaser hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Seller for Losses that Purchaser may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Seller's representations or Parties' warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Purchaser nevertheless proceeds with the Closing hereunder, (b) Seller's liability for the breach of any representations or warranties of Seller contained in Articles II or VIII or pursuant to Section 11.1(a)(i) of this Agreement, shall be limited to claims in excess of $1,500,000 in the aggregate; upon reaching such claims which exceed $1,500,000 in the aggregate, Purchaser may pursue such claims against Seller for Losses resulting from Seller's breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims) and (c) Seller's aggregate liability for all claims made under Section 9.2(a) arising out of any breach of such representations or Section 9.3(a)warranties shall not exceed $62,100,000, as applicable, except that there shall be subject to the following limitations: (i) the Indemnifying Party shall have no cap on Seller's liability for such claims until the aggregate amount breaches of the Losses incurred shall exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Threshold"representations or warranties set forth in Sections 8.1(a), (b), or (c) hereof or in which case any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the Indemnifying Party term "actual knowledge" of Purchaser shall only be liable mean the actual knowledge of ▇▇▇▇ Will with no duty of inquiry or investigation. Notwithstanding anything to the contrary set forth in this Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the result of any of Purchaser's representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser's liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be limited to claims in excess of $1,500,000 in the Thresholdaggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for Losses resulting from Purchaser's breach of any representations and warranties under this Agreement (ii) including the Indemnifying Party shall have no liability for any single claim unless the amount first $1,500,000 of Losses for such claim exceeds Fifty Thousands Dollars ($50,000claims), and (iii) other than with respect to Losses based on fraud or intentional misrepresentation, the Indemnifying Party. Purchaser's or Parties' aggregate liability for all claims arising out of any breach of such claims representations or warranties shall not exceed One Hundred Twenty Five Million Dollars ($125,000,000); provided62,100,000, however, except that there shall be no cap on Purchaser's liability for breaches of the limitations set forth in this Section 9.5(a) shall not apply to Parent's and Buyer's obligations pursuant to Section 5.1(b) representations or to Seller's obligations with respect to breach of any representation or warranty warranties set forth in Sections 3.1 (Organization8.2(a), 3.3 (Authorization) and 3.8(e) (ERISA Affiliate).
(b) Seller shall undertake all Remedial Action to respond to all Releases of Hazardous Substances existing prior to the Closing Date at the Nebraska Property ("Designated Remedial Action") that is necessary to comply with all applicable Environmental Law as may currently be in effect or may come into effect in the future until such time as the Designated Remedial Action results in a determination by all Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action that no further action is required. Buyer shall provide Seller with commercially reasonable access to the Nebraska Property pursuant to the Environmental Remediation License Agreement. Seller shall submit its plan(s) for Designated Remedial Action and final drafts of any other submissions and/or material correspondence to Governmental Bodies for Buyer's review and comment, which comments shall not be unreasonably rejected by Seller, before undertaking any work to be performed and/or making such submissions. Buyer shall have the right to be present and comment during all material conversations or meetings with Governmental Bodies regarding the Nebraska property. Seller shall promptly provide to Buyer copies of all written information, documents and submissions (copies of which shall be provided to Buyer prior to their submission to any Governmental Body) relating to the Designated Remedial Action as well as correspondence to and from any Governmental Body with jurisdiction over the Designated Remedial Action. Seller will indemnify, defend and hold harmless Buyer from and against any and all Losses arising out of the Designated Remedial Action (including reasonable attorneys' fees), except for such Losses arising out of or related to the willful misconduct or gross negligence of Buyer. Seller shall promptly provide to Buyer all final draft reports, data, lab analyses, any supporting information necessary to interpret such data and a final copy generated or prepared in connection with the performance of the Designated Remedial Action. Seller shall have no obligation hereunder to undertake Remedial Action which exceeds the standards necessary to obtain a no further action determination from any Governmental Bodies that have asserted jurisdiction over the Designated Remedial Action.
(c) The indemnification provided in this Article IX shall be the sole and exclusive remedy after the Closing Date for damages available to the parties to this Purchase Agreement for breach of any of the terms, conditions, representations or warranties contained herein, any right, claim or action arising from the transactions contemplated by this Purchase Agreement or with respect to the Designated Remedial Action, other than a claim or action based on fraud or intentional misrepresentation; provided, however, this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to require a party to perform its obligations under this Purchase Agreement or any Collateral Agreementhereof.
(d) All parties shall use commercially reasonable efforts to mitigate their damages.
(e) If there is any outstanding balance on the Convertible Note, any amounts payable by Seller to a Buyer Indemnified Party with respect to its indemnification obligations under this Article IX shall first be applied to repay any outstanding amount of the Convertible Note, dollar for dollar, until the Convertible Note is repaid in full. The rights to indemnification under this Article IX shall not otherwise be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
(f) Notwithstanding anything contained in this Purchase Agreement to the contrary, no party shall be liable to the other party for any special, punitive, exemplary or consequential loss or damage arising out of this Purchase Agreement; provided, however, that the foregoing shall not be construed to preclude recovery by the Indemnified Party with respect to Losses (i) directly incurred from Third Party Claims or (ii) for actual lost profits or incidental damages.
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