Limitations on Claims. (a) Neither Party shall have any obligation to indemnify the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two percent (2%) of the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud. (b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000). (c) Except as otherwise provided in Section 11.04(d), the aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02. (d) The amount of any claim pursuant to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity payment.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Clearway Energy, Inc.), Purchase and Sale Agreement (Clearway Energy LLC)
Limitations on Claims. (a) Neither No Party shall have any obligation to indemnify the other an Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 Section 11.01(a) or Section 11.02(a), as applicable, equals or exceeds two one percent (21%) of the Final Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for obligated to pay in full all such Losses only to (commencing with the extent they are in excess of the Deductiblefirst dollar thereof); provided thatprovided, however, that the Deductible shall not apply to Losses resulting from, arising out of or relating to (iw) any breach of the Fundamental Representations, (x) any breach of the representations and warranties set forth in Section 3.15 (Environmental), Section 3.26 (No Debt), or the second sentence of Section 3.03, (y) any willful breach of any representation or warranty, warranty or (iiz) fraud.
(b) Neither No Party shall have any obligation to indemnify the other an Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification pursuant to Section 11.01(a) or Section 11.02(a), as applicable, in the aggregate of less than One Hundred Fifty Thousand Dollars ($100,00050,000); provided, however, that such threshold shall not apply to Losses resulting from, arising out of or relating to (i) any breach of the Fundamental Representations, (ii) any breach of the representations and warranties set forth in Section 3.15 (Environmental) or Section 3.26 (No Debt), (iii) any willful breach of any representation or warranty, or (iv) fraud.
(c) Except as otherwise provided in Section 11.04(d), the aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.512%) of the Final Purchase Price (the “Cap”); provided thatprovided, however, that the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any breach of the Fundamental Representations, (ii) any breach of the covenant set forth in Section 5.07 or the representation or warranty set forth in Section 3.26 (No Debt), (iii) Losses covered by Sections 11.01(b), 11.01(c) (which is subject to the Special Item Cap), 11.01(e), 11.01(f), 11.01(g), 11.01(h), 11.01(i), 11.01(j) or 11.01(k), (iv) any willful breach of any representation or warranty, or (v) fraud.
(d) Separate from the Cap established in Section 11.04(c), the aggregate liability of the Indemnifying Parties under this Article 11 resulting from Losses covered by Section 11.01(c) shall be limited to an amount equal to twenty-five million dollars ($25,000,000) (the “Special Item Cap”); provided, however, that Seller shall have no obligation to indemnify a Purchaser Indemnified Party for any Losses covered by Section 11.01(c) that are incurred to defend an Action or Proceeding that does not result in a prohibition on the placement of CCR or non-CCR waste-streams in an impoundment or closure of an impoundment until the aggregate amount of such Losses equals or exceeds Two Million Dollars ($2,000,000) (“Special Item Deductible”), in which event the Seller shall be liable for such Losses only to the extent they are in excess of the Special Item Deductible; provided, further, that neither the Special Item Cap nor the Special Item Deductible shall apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty or (ii) fraud.
(e) For purposes of this Article 11, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) In the event that any Losses are subject to indemnification pursuant to both (x) Section 11.01(a) in respect of a breach of Section 3.15 and (y) Section 11.01(c):
(i) if there occurs a prohibition on the placement of CCR or non-CCR waste-streams in an impoundment or closure of an impoundment, such Losses shall be indemnifiable pursuant to Section 11.01(c) and the Special Item Cap shall apply (subject to the second proviso set forth in Section 11.04(d)); and
(ii) if there does not occur a prohibition on the placement of CCR or non-CCR waste-streams in an impoundment or closure of an impoundment, provided further, that such Losses shall be indemnifiable pursuant to Section 11.01(a) and the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.
(d) The amount of any claim pursuant to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect subject to the taxable year proviso set forth in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentSection 11.04(c)).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cleco Power LLC), Purchase and Sale Agreement (NRG Energy, Inc.)
Limitations on Claims. (a) Neither An Indemnifying Party shall have any no obligation to indemnify the other an Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification by such Indemnifying Party pursuant to this Article 11 equals 6 equal or exceeds two percent (2%) exceed [***] of the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, that the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful Fraudulent Action, (ii) the matters referenced on Schedule 6.01, or (iii) a breach of any representation or warranty, or (ii) fraudFundamental Representations.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Seller Indemnifying Parties and the Purchaser Indemnifying Parties under this Article 11 6 resulting from any claims under any breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) [***] of the Purchase Price (the “Cap”); provided that, that the Cap shall not apply to Losses resulting from, arising out of or relating to to: (i) any willful breach of any representation or warranty Fraudulent Action; or (ii) frauda breach of the Fundamental Representations; and, provided further, further that the Cap aggregate liability of the Seller Indemnifying Parties or the Purchaser Indemnifying Parties, as applicable, resulting from breaches of representations or warranties (including Fundamental Representations), covenants, agreements or obligations made in this Agreement or in any certificates delivered pursuant hereto, shall be limited to an amount equal to the Purchase Price. For the avoidance of doubt, the foregoing limitation will not apply to Purchaser’s payment obligation under Section 2.02Losses resulting from, arising out of or relating to the matter referenced as item 2 on Schedule 6.01.
(dc) The amount of any claim pursuant to this Article 11 6 will be reduced by the amount of (i) any actual recovery under insurance proceeds actually recovered policies that provide coverage, (less the cost to collect the proceeds ii) any actual recovery of such insurance reimbursement, indemnification or payment from any third Person, and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto(iii) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified PartiesParties (or, in the case of an Indemnified Party that is either a disregarded entity, partnership or other pass-through entity for U.S. federal income tax purposes, the ultimate taxpayer(s) with respect to such entity), in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such payment or Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such payment or Tax benefit; provided that such payment shall not exceed the amount of the indemnity payment.
(d) Notwithstanding any provision of this Agreement to the contrary, neither Purchaser nor Seller shall be obligated to indemnify any Seller Indemnified Party or Purchaser Indemnified Party, as applicable, for any Losses to the extent such Loss, or the economic effect of the event or circumstance giving rise to such Loss, is accounted for in the determination of the Adjusted Purchase Price pursuant to the Adjusted Purchase Price Model.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Clearway Energy LLC), Membership Interest Purchase Agreement (Clearway Energy, Inc.)
Limitations on Claims. (a) Neither Party Notwithstanding anything to the contrary in this Agreement, indemnification under Section 7.02 shall have any obligation to indemnify the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification not be available pursuant to this Article 11 equals or VII unless and until the amount of indemnifiable Damages asserted against Seller under this Article VII exceeds two an amount equal to one percent (21%) of the Purchase Price (the “Deductible”as may be adjusted pursuant to this Agreement) in which event the Indemnifying aggregate (the "Deductible"). Once the Deductible has been exceeded, the Purchaser Indemnified Party shall be liable entitled to the benefit of the indemnity under Section 7.02 for Losses only any Claim to the extent they are the aggregate of all such past or then current Claims is in excess of the Deductible; provided thatprovided, however, that the Deductible shall not apply to Losses resulting from, claims for Damages to the extent arising out of, resulting from or incident to any inaccuracy or breaches by Seller of or relating its representations and warranties set forth in Sections 2.01 (Organization of Seller; Authority and Binding Effect), 2.03 (Capitalization; Ownership of Shares), 2.09(d) (Ownership, Possession and Sufficiency of Assets) to (i) any willful breach of any the extent that the representation or warranty, and warranty expressly relates to title to Containers or (iiin the case of Royal Wolf US and its Subsidiaries only) fraudContainer delivery equipment, and 2.13 (Brokers and Finders).
(b) Neither Party shall have any obligation Notwithstanding anything to indemnify the other Indemnified Party contrary contained in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d)this Agreement, the maximum aggregate liability amount of the Indemnifying Parties indemnifiable Damages that may be recovered with respect to Claims made under this Article 11 resulting from breaches of representations or warranties herein Sections 7.02 and in any certificates delivered pursuant hereto 7.04 shall be limited to an amount equal to twelve and one half ten percent (12.510%) of the Purchase Price (as may be adjusted pursuant to this Agreement) (the “"Indemnification Cap”", as may be reduced pursuant to Section 4.03(d); provided that).
(c) Notwithstanding any other provision of this Agreement to the contrary, neither Party shall be required to indemnify, hold harmless or otherwise compensate the Cap shall not apply other Party (or any other Person) for Damages with respect to Losses resulting frommental or emotional distress or exemplary, arising out of consequential, special or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02punitive damages.
(d) The amount of any claim pursuant to this Article 11 will Damages claimed by any Purchaser Indemnified Party hereunder shall be reduced by net of any allowances and reserves provided in the Financial Statements or the Closing Financial Statements that are specifically identified with respect thereto.
(e) The amount of any insurance proceeds actually recovered Damages claimed by any Purchaser Indemnified Party hereunder shall be net of any insurance, indemnity, contribution, Tax benefit or other payments or recoveries of a like nature directly referable to the matter giving rise to the relevant claim (less it being agreed that, promptly after the cost realization of any such reductions of Damages pursuant hereto, such Purchaser Indemnified Party shall reimburse Seller for such reduction in Damages for which such Purchaser Indemnified Party was indemnified prior to collect the proceeds realization of such insurance and reductions of Damages).
(f) Notwithstanding any provision to the amountcontrary contained in this Agreement, if anyin the event that an Indemnifying Party can establish that an Indemnified Party had actual knowledge, on or prior to the Closing Date, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt a breach of a refund warranty or covenant of Taxes the Indemnifying Party upon which a claim for indemnification by the Indemnified PartiesParty is based, then the Indemnifying Party shall have no liability for any Damages resulting from or arising out of such claim. With respect to Seller, the actual knowledge shall be that of any Person named in each case only the definition of "knowledge" in Section 8.01; with respect to Purchaser, the taxable year in which actual knowledge, after inquiry of their direct reports, of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇.
(g) If an Indemnified Party recovers Damages from an Indemnifying Party under this Article VII, the Loss was incurred or paid) Indemnifying Party shall be subrogated, to the Indemnified Party in respect extent of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made recovery, to the Indemnified Party's rights against any third party, other than a third party with whom the Indemnified Party shall promptly make payment has a material business agreement or arrangement, with respect to such recovered Losses subject to the subrogation rights of any insurer providing insurance coverage under one of the Indemnified Party's policies and except to the extent that the grant of subrogation rights to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed is prohibited by the terms of the applicable insurance policy.
(h) The amount of any Damages claimed by any Purchaser Indemnified Party hereunder shall be reduced to the indemnity paymentextent that Purchaser shall have received the benefit of an adjustment pursuant to this Agreement due to the fact that the item that is the subject of the indemnification claim was specifically taken into account in the Closing Determination or the Closing Financial Statements.
Appears in 1 contract
Limitations on Claims. (a) Neither Party shall have any obligation to indemnify the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two one percent (21%) of the Final Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided provided, that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any breach of Seller’s covenant set forth in Section 5.08 or Seller’s representation and warranty set forth in Section 3.11(h), (ii) any willful breach of any representation or warranty, or (iiiii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Fifty Thousand Dollars ($100,00050,000); provided, however, that such threshold shall not apply to Losses resulting from, arising out of or relating to any breach of Seller’s covenant set forth in Section 5.08 or Seller’s representation and warranty set forth in Section 3.11(h).
(c) Except as otherwise provided in Section 11.04(d), the aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half twenty percent (12.520%) of the Final Purchase Price (the “Cap”); provided provided, that, the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any breach of Seller’s covenant set forth in Section 5.08, (ii) any willful breach of any representation or warranty or (iiiii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.
(d) Subject to Section 11.01, the aggregate liability of Seller under this Article 11 resulting from a breach of Section 3.11(h) shall be limited to an amount equal to the Final Purchase Price less any amounts recovered by Purchaser pursuant to any other provision of this Article 11.
(e) The amount of any claim pursuant to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided provided, that such payment shall not exceed the amount of the indemnity payment.
Appears in 1 contract
Limitations on Claims. (a) Neither Party The maximum aggregate liability of the Stockholders to the Covenant Indemnified Persons under Section 5.2(a) shall have any obligation to indemnify not exceed Four Million Dollars ($4,000,000) (the "General Cap"), and Covenant, on behalf of itself and the other Covenant Indemnified Party until Persons, agrees not to seek, and shall not be entitled to recover, any Damages under Section 5.2(a) in excess of the General Cap. Notwithstanding the foregoing, the General Cap shall not limit any recovery by the Covenant Indemnified Persons (i) in the case of fraud, (ii) in any action involving a Breach of Section 2.2 [Authorization and Validity], or 2.3 [Capitalization], or (iii) in any claim for Damages under Sections 5.2(b) or 5.2(c). The Stockholders’ liability for Damages under Section 5.2(a) in excess of the General Cap shall be several, and not joint.
(b) No Covenant Indemnified Persons shall be entitled to recover any Damages pursuant to Section 5.2(a) unless the aggregate amount of all Losses incurred by such Party that are subject Damages for which Covenant Indemnified Persons would, but for this sentence, be entitled to receive indemnification pursuant to this Article 11 equals or Section 5.2(a) exceeds two percent Two Hundred Fifty Thousand Dollars (2%$250,000) of the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable "Damage Threshold"), and then only for Losses only to the extent they are such Damages in excess of the Deductible; provided thatDamage Threshold. Notwithstanding the foregoing, the Deductible limitation in this Section 5.5(b) shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach in the case of any representation or warrantyfraud, or (ii) fraud.
in any claim for Breach of Section 2.2 [Authorization and Validity] or 2.3 [Capitalization] or (biii) Neither Party shall have in any obligation to indemnify the other Indemnified Party in connection with any single item claim for Damages under Sections 5.2(b) or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,0005.2(c).
(c) Except as otherwise provided in Section 11.04(d), the The maximum aggregate liability of the Indemnifying Parties Stockholders to the Covenant Indemnified Persons under this Article 11 resulting from breaches Sections 5.2(c) shall not exceed One Hundred Thirty Thousand Dollars ($130,000) (the "Special Cap"), and Covenant, on behalf of representations or warranties herein itself and the other Covenant Indemnified Persons, agrees not to seek, and shall not be entitled to recover, any Damages under Sections 5.2(c) in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) excess of the Purchase Price (Special Cap. Notwithstanding the “Cap”); provided thatforegoing, the Special Cap shall not apply to Losses resulting from, arising out of or relating to (i) limit recovery by the Covenant Indemnified Persons in any willful breach of any representation or warranty or (ii) case based on fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.
(d) The amount During the term of any claim the Escrow Agreement, all claims for indemnification of the Covenant Indemnified Persons pursuant to Sections 5.2(a) and 5.2(c) shall be paid first out of the Indemnity Escrow Funds in accordance with the terms of the Escrow Agreement and subject to the other limitations set forth in this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity payment.V.
Appears in 1 contract
Limitations on Claims. 13.1 The provisions of this clause 13 shall operate, in accordance with its terms, to limit or reduce the liability of the Vendor in respect of Relevant Claims save that:
(a) Neither Party nothing in this clause 13 other than the provisions of clauses 13.20 and 13.21 shall apply or operate in respect of any Unlimited Claim or any Tax Claim;
(b) nothing in this clause 13 other than the provisions of clauses 13.8, 13.13, 13.14, 13.15, 13.16, 13.17, 13.20 and 13.21 shall apply or operate in respect of any Indemnity Claim;
(c) the provisions of clauses 13.2, 13.5 and 13.7 shall not apply or operate in respect of any Litigation/Compliance/Regulatory Claim;
(d) the provisions of clause 13.5 shall not apply or operate in respect of any Environmental Claim; and
(e) nothing in this clause 13 shall apply or operate in respect of any liability, loss or cost under any Claim to the extent such liability, loss or cost arises or results from or is increased by the fraud of the Vendor or any other member of the ABB Group, and the provisions of this clause 13 shall be construed accordingly. CONFORMED COPY TIME LIMITS FOR BRINGING CLAIMS
13.2 The Vendor shall not be liable for any Warranty Claim unless it shall have received from the Purchaser written notice containing details of the Warranty Claim, including the Purchaser's estimate of the amount thereof:
(i) in the case of an Environmental Claim, within seven (7) years of the Completion Date; and
(ii) in the case of any obligation other Warranty Claim in respect of any of the Warranties (other than a Tax Warranty) within eighteen (18) months of the Completion Date. DE MINIMIS
13.3 The Vendor shall have no liability in respect of any single Warranty Claim, or any series of similar or related Warranty Claims arising out of similar or related facts, circumstances or matters, unless the liability of the Vendor in respect of such Warranty Claim, or such similar or related Warranty Claims (in aggregate), exceeds:
(a) where such Warranty Claim relates to indemnify any underlying Infrastructure Financial Asset, or to any underlying Mid Market Financial Asset where such Mid Market Financial Asset has a value equivalent to US$3,000,000 or more, US$2.5 million;
(b) where such Warranty Claim relates to any underlying Mid Market Financial Asset where such Mid Market Financial Asset has a value equivalent to less than US$3,000,000, US$200,000;
(c) where such Warranty Claim relates to any underlying Small Ticket Financial Assets, US$100,000 provided that:
(i) for the purposes of the Warranties in paragraph 11 of Schedule 3 (Vendor Warranties) any series of Warranty Claims arising out of a systemic failure or out of similar or related facts, matters or circumstances shall be treated as a single Warranty Claim, but otherwise each Warranty Claim in relation to the underlying Small Ticket Financial Assets shall be treated as a separate Warranty Claim; and
(ii) a Warranty Claim may only be made in relation to the Warranty in paragraph 11.1 of Schedule 3 (Vendor Warranties) to the extent that the loss being claimed in respect of the particular Small Ticket Data Tape to which such claim relates, when aggregated with all other Indemnified Party until losses and gains then resulting from inaccuracies in that particular Small Ticket Data Tape, results or would reasonably be expected to result in an aggregate net loss in the cash-flows warranted as being generated by the Small Ticket Financial Assets underlying that particular Small Ticket Data Tape; and
(d) where such Warranty Claim relates to any other matter, US$200,000. BASKET
13.4 The Vendor shall have no liability in respect of:
(a) any Warranty Claim referred to in clause 13.3(a), unless the aggregate amount of the liability in respect of all Losses incurred such Warranty Claims shall exceed US$10 million;
(b) any Warranty Claim referred to in clauses 13.3(b) and/or 13.3(c) unless the aggregate amount of the liability in respect of all such Warranty Claims shall exceed US$3.5 million; and
(c) any Warranty Claim referred to in clause 13.3(d) unless the aggregate amount of the liability in respect of all such Warranty Claims shall exceed US$2.5 million, in which case the Purchaser (for itself and/or as trustee for each relevant member of the Purchaser's Group) shall be able to claim the whole amount of such Warranty Claim(s) and not merely the excess. AGGREGATE CAP
13.5 The total aggregate liability of the Vendor in respect of all Warranty Claims shall not exceed the sum of US$350 million. GENERAL LIMITATIONS
13.6 If any Warranty Claim is based upon a liability which is contingent only, the Vendor shall not be liable to make payment unless and until such contingent liability becomes an actual liability but, subject as provided in clause 13.2, without prejudice to the right of the Purchaser (for itself and/or as trustee for each member of the Purchaser's Group) to give notice thereof and to issue and serve proceedings in respect thereof prior thereto. For the avoidance of doubt, the fact that the liability may not have become an actual liability by the relevant date provided in clause 13.2 shall not prevent the Purchaser from giving notice in respect thereof in accordance with clause 13.2 nor shall it exonerate the Vendor in respect of any Warranty Claim properly notified before the relevant date. In addition, the provisions of clauses 13.15 and 13.17 shall in no way operate so as to prohibit or restrict the Purchaser from giving notice in respect of the Warranty Claim in question, and any request by the Vendor to the contrary will be deemed unreasonable for such Party that are subject purposes.
13.7 Any Warranty Claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to indemnification have been withdrawn unless legal proceedings in respect of it have commenced by both being issued and served within twelve (12) months of notification to the Vendor pursuant to this Article 11 equals or exceeds two percent clause 13.2, save:
(2%a) where the Warranty Claim relates to a contingent liability in which case it shall be deemed to have been withdrawn unless legal proceedings in respect of it have been commenced by being both issued and served within twelve (12) months of it having become an actual liability; and
(b) where the commencement of such legal proceedings is delayed by the operation of clauses 13.15 and/or 13.17, in which case it shall be deemed to have been withdrawn unless legal proceedings in respect of it have been commenced by being both issued and served within twelve (12) months of the Purchase Price (Vendor ceasing to utilise the “Deductible”) provisions of clauses 13.15 and/or 13.17 in which event the Indemnifying Party respect thereof. COMPLETION BALANCE SHEET
13.8 The Vendor shall not be liable for Losses only any Relevant Claim to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation allowance, provision or warrantyreserve in respect of the fact, matter, event or circumstance giving rise to such Relevant Claim that has been specifically made in the Completion Balance Sheet or (ii) fraud.that such results in a decrease in the Final Consideration payable under clause 2.5. ACTS OF THE PURCHASER
13.9 The Vendor shall not be liable for any Warranty Claim to the extent that the matter giving rise to the Warranty Claim would not have arisen but for a voluntary act or failure to act, transaction or arrangement which is carried out after the Completion Date by or at the request of any director, employee or agent of the Purchaser or any other member of the Purchaser's Group (excluding, prior to Completion, the SF Group) to the extent that they have apparent authority to do so (other than, in each case, (a) in the ordinary and usual course of business; (b) in mitigating any loss, liability, cost or expense which forms the basis of a Claim; or (c) as required in order to comply with any obligations under any of the Transaction Documents) and which the Purchaser or any member of the Purchaser's Group knew or ought reasonably to have known would give rise to a Warranty Claim. For the purposes of this clause 13.9, an act, transaction or arrangement shall not be regarded as "voluntary" if it is done or effected:
(a) at the request of the Vendor or any member of the ABB Group;
(b) Neither Party shall have any obligation to indemnify as a consequence of the other Indemnified Party in connection with any single item or group Hive-Down and Transfer arrangements contemplated by Part C of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars Schedule 13 ($100,000Excluded Assets/Excluded Contracts/Excluded Businesses).;
(c) Except as otherwise provided in Section 11.04(d)order to comply with any legal or regulatory obligation (contractual or otherwise) imposed on the SF Group and/or the SF Business from time to time; or
(d) in order to perform any of its obligations or discharge any of its liabilities under or pursuant to any of the Transaction Documents. RETROSPECTIVE LEGISLATION
13.10 Without prejudice to the applicability of laws previously in force in the definition of "Environmental Laws", the aggregate Vendor shall not be liable in respect of any Warranty Claim to the extent that such Warranty Claim would not have arisen but for, or such Warranty Claim is increased as a result of, any legislation which is not in force at Completion or any change of law, regulation, directive, requirement or CONFORMED COPY administrative practice or ruling, or any change in rates of tax, which in each case is not in force at or before Completion. ACCOUNTING POLICIES AND TAXATION
13.11 The Vendor shall not be liable for any Warranty Claim to the extent that such Warranty Claim arises or, such Warranty Claim otherwise having arisen, is increased, as a result of any change made after Completion in any applicable accounting policies, practice or standards, or the length of any accounting period for Tax purposes, of any member of the Purchaser's Group, save to the extent that such changes are made in order to bring the relevant accounting policies, practice or standards into compliance with applicable accounting, policies, practices or standards and/or applicable legislation or regulation in force at or before Completion.
13.12 In calculating the liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in Vendor for any certificates delivered pursuant hereto Warranty Claim, there shall be limited taken into account the amount by which any Taxation for which the Purchaser itself is accountable or liable to be assessed is reduced or extinguished directly as a result of such liability. PROCEEDS OF RECOVERY FROM THIRD PARTIES
13.13 If the Vendor pays to the Purchaser an amount in discharge of a Relevant Claim and the Purchaser or any other member of the Purchaser's Group subsequently recovers a cash amount or is relieved of a liability to make a payment to a third party (including any Tax Authority, but excluding any insurer or insurance company), in each case, in mitigation of the same loss giving rise to the Relevant Claim, the Purchaser shall (or, as appropriate, shall procure that the relevant member of the Purchaser's Group shall) repay to the Vendor:
(a) an amount equal to twelve and one half percent (12.5%) the sum recovered from the third party or the value of the Purchase Price relieved obligation (as the “Cap”)case may be) less any costs and expenses incurred by any member of the Purchaser's Group in recovering the same and any Tax Liability incurred in relation to or as a result of such recovery; or
(b) if the figure resulting under sub-paragraph 13.13(a) above is greater than the amount paid by the Vendor to the Purchaser or other members of the Purchaser's Group in respect of the Relevant Claim, such lesser amount as shall have been so paid by the Vendor.
13.14 Any payment required to be made by the Purchaser, pursuant to clause 13.13, shall be made within twenty (20) Business Days of such recovery from such third party.
13.15 Where the Purchaser or any member of the Purchaser's Group is at any time entitled to recover from some other person (other than pursuant to any insurance policy) any sum in respect of any matter giving rise to a Relevant Claim, then provided that:
(a) to do so would not (in the reasonable opinion of the Purchaser) be or be reasonably likely to be materially prejudicial or damaging to the interests of CONFORMED COPY any part of the SF Business or of the Purchaser's Group or a material business relationship, customer or supplier of any part of the Cap shall SF Business or of the Purchaser's Group;
(b) the Vendor seeks and takes into account the reasonable views of the Purchaser in relation to the conduct of such recovery;
(c) the Vendor does not apply to Losses resulting from, arising out of (directly or relating indirectly) contact or respond to (idirect or indirect) any willful breach contact from the other party, without the prior consent of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.;
(d) The no member of the Purchaser's Group shall be obliged to do or cause to be done anything which is unreasonable in the circumstances;
(e) no member of the Purchaser's Group shall be obliged to claim or bring a claim under any insurance policy;
(f) the Purchaser remains at liberty to impress upon the other party that the matter the subject of the claim for recovery relates to the ABB Group's (and not the Purchaser's Group's) period of ownership and management of the SF Business;
(g) the Vendor indemnifies and secures the Purchaser (for itself and as trustee for each member of the Purchaser's Group) on an after Tax basis against all losses, liabilities, costs and expenses (including legal fees) incurred by any member of the Purchaser's Group as a result of complying with this clause 13.15; and
(h) in the case of any Indemnity Claim, the Vendor has already absolutely and unconditionally paid and discharged to the Purchaser, and the Purchaser has already absolutely and unconditionally recovered and received from the Vendor, the full amount of the relevant Indemnity Claim, the Purchaser shall, and shall procure that the member of the Purchaser's Group concerned shall, take such reasonable steps as the Vendor may reasonably request to enforce such recovery and, in the event that the Purchaser or any claim pursuant to this Article 11 will member of the Purchaser's Group shall recover any amount from such other person, the amount of the Relevant Claim against the Vendor shall be reduced by the amount recovered less any costs and expenses incurred in recovering the same and any Tax Liability incurred in relation to or as a result of such recovery. NO DOUBLE RECOVERY
13.16 The Purchaser agrees for itself and on behalf of each of the Designated Purchasers with the Vendor that the Purchaser's Group shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity, in each case, from the Vendor or the ABB Guarantor more than once in respect of any insurance proceeds actually recovered one loss giving rise to a Relevant Claim. CONFORMED COPY CONDUCT OF LITIGATION
13.17 If the Purchaser, or any other member of the Purchaser's Group, becomes aware of any third party claim, potential claim, matter or event (less a THIRD PARTY CLAIM) which might lead to a Relevant Claim being made:
(a) the cost Purchaser shall procure that written notice thereof is given to collect the proceeds Vendor as soon as practicably possible, such notice to contain such information as is then available to the Purchaser as will assist the Vendor in making a reasonable assessment of such insurance and third party claim. The Vendor acknowledges that the amountPurchaser's failure to comply with this obligation shall not in any way affect its right to bring a Relevant Claim, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and unless such failure causes the amount of any Tax benefit such Relevant Claim to be increased or otherwise adversely effects the position of the Vendor;
(which for this purpose means any reduction b) then, provided that:
(A) to do so would not (in cash Taxes payable that would otherwise the reasonable opinion of the Purchaser) be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect be reasonably likely to be materially prejudicial or damaging to the taxable year interests of any part of the SF Business or of the Purchaser's Group or a material business relationship, customer or supplier of any part of the SF Business or of the Purchaser's Group;
(B) the Vendor seeks and takes into account the reasonable views of the Purchaser in which the Loss was incurred or paid) relation to the Indemnified Party in respect conduct of such third party claim;
(C) the Vendor does not (directly or indirectly) contact or respond to (direct or indirect) contact from the relevant third party, without the prior consent of the Purchaser;
(D) no member of the Purchaser's Group shall be obliged to do or cause to be done anything which is unreasonable in the circumstances;
(E) no member of the Purchaser's Group shall be obliged to claim or bring a claim under any insurance policy;
(F) the facts or events giving rise Purchaser remains at liberty to such indemnity obligation. If impress upon the Indemnified Party realizes such Tax benefit after relevant third party that the date on which an indemnity payment has been made matter the subject of the third party claim relates to the Indemnified Party, ABB Group's (and not the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount Purchaser's Group's) period of ownership and management of the indemnity payment.SF Business;
(G) the Vendor indemnifies and secures the Purchaser (for itself and as trustee for each member of the Purchaser's Group on an after Tax basis against al
Appears in 1 contract
Limitations on Claims. (a) Neither Party Notwithstanding anything in this Article VII to the contrary, the rights of the parties to be indemnified and held harmless under this Agreement shall have any obligation be limited as follows:
(i) no claims for indemnity by a Purchaser Indemnitee pursuant to indemnify the other Indemnified Party Section 7.2(b) shall be made unless and until the aggregate amount of all Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or Claims exceeds two percent (2%) of the Purchase Price (the “Deductible”) $200,000, in which event the Indemnifying Party case Seller shall be liable obligated to indemnify, defend and hold harmless the Purchaser Indemnitee for Losses only to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or all Damages;
(ii) fraudthe maximum aggregate liability of Seller for Claims pursuant to Section 7.2(a)-(d) shall be limited to $1 million;
(iii) the maximum aggregate liability of Purchaser for Claims pursuant to Section 7.3(a) and (b) shall be limited to $1 million; and
(iv) no claims for indemnity pursuant to Section 7.2(a)-(d) shall first be made by any party after the first anniversary of the Closing Date.
(b) Neither Party The liability of a party with respect to any claim for indemnity by an Indemnitee pursuant to this Article VII shall have be offset dollar for dollar by (i) any obligation to indemnify insurance proceeds actually received and retained by such Indemnitee after the Closing Date in respect of the Damages involved, and (ii) any other Indemnified Party in connection with recovery made by such Indemnitee from any single item or group third party on account of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000)Damages involved.
(c) Except as otherwise provided in Section 11.04(d)The parties’ right to indemnification will not be affected or limited by any investigation conducted by or on behalf of such party, the aggregate liability any preparation of the Indemnifying Parties under compilation by such party of schedules to this Article 11 resulting from breaches Agreement or any knowledge acquired (or capable of representations or warranties herein and in being acquired) at any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02time.
(d) The amount For purposes of any claim pursuant to this Article 11 will be reduced by calculating the amount of Damages to which a party is entitled under this Article VII (but not for determining whether a representation or warranty has been breached), the terms “material,” “materiality,” and other qualifiers, modifiers or limitations (including qualifiers as to “Knowledge”) shall be disregarded.
(e) In the event of payment of any insurance proceeds actually recovered Claim, the Indemnifying Party (less as defined below) shall be subrogated to any and all claims and causes of action of the cost Indemnitee (as defined below) and shall have the right to collect seek and retain the proceeds of such insurance any and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction all actions in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentfurtherance thereof.
Appears in 1 contract
Limitations on Claims. (a) Neither Party Notwithstanding anything in this Article IX to the contrary, the rights of the parties to be indemnified and held harmless under this Agreement shall have be limited as follows:
(i) No claims for indemnity by a Purchaser Indemnitee for any obligation to indemnify inaccuracy in a representation or warranty (other than for breach of Section 3.2, 3.3, 3.4(a), 3.4(c), 3.13(b) or 3.24, which shall each be indemnified from the other Indemnified Party first dollar of Damages) made in this Agreement by HCA shall be made unless and until the aggregate dollar amount of all Losses incurred such Claims exceeds $3,500,000, in which case HCA shall be obligated to indemnify, defend and hold harmless the Purchaser Indemnitee for all Damages above and beyond such amount (excluding the initial $3,500,000 of the Base Purchase Price) provided that materiality qualifications (and the like) will not be taken into account in determining the magnitude of the damages occasioned by such Party that are a breach for purposes of calculating the amount of Damages subject to indemnification pursuant to the deductible set forth in this Article 11 equals or exceeds two percent (2%) of the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or Section 9.4(a)(i);
(ii) fraudThe maximum aggregate liability of HCA for Claims pursuant to Sections 9.2(b) and (c) shall be limited to the Purchase Price; and
(iii) The maximum aggregate liability of Purchaser for Claims pursuant to Section 9.3(b) and (c) shall be limited to the Purchase Price.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the aggregate The liability of the Indemnifying Parties under a party with respect to any claim for indemnity by an Indemnitee pursuant to this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto IX shall be limited to an amount equal to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not apply to Losses resulting from, arising out of or relating to offset dollar for dollar by (i) any willful breach insurance proceeds received by such Indemnitee after the Effective Time in respect of any representation or warranty or the Damages involved, (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.
(d) The amount of any claim pursuant to this Article 11 will be reduced positive Tax effect actually recognized by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party Indemnitee in respect of the Damages involved, and (iii) any other recovery made by such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date Indemnitee from any third party on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount account of the indemnity paymentDamages involved.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lifepoint Hospitals, Inc.)
Limitations on Claims. (a) Neither Subject to Section 11.04(b), an Indemnifying Party shall not have any obligation to indemnify the other Indemnified Party until the aggregate amount of all such Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two one percent (21%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Deductible”) in ), at which event time the Indemnifying Party shall be liable required to indemnify the Indemnified Party for Losses only to the extent they are all amounts in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Indemnifying Parties Party under this Article ARTICLE 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent fifteen (12.515%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Cap”)) unless arising from breach of any Fundamental Representation or any covenant, in which case the aggregate liability of the Indemnifying Party shall not exceed one hundred (100%) of the Purchase Price; provided thatprovided, however, that the Deductible and Cap shall not apply to Losses resulting from, arising out of or relating any claim for indemnification pursuant to (i) Section 11.01 or Section 11.02 in respect of any claim involving fraud or fraudulent misrepresentation or willful misconduct or any breach of any representation or warranty contained in Section 3.14 or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.0211.01(ii).
(dc) The amount of any claim pursuant to Notwithstanding anything in this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect Agreement to the taxable year contrary, Seller shall have no obligation to indemnify under this Agreement for any Taxes arising in which the Loss was incurred any period (or paidportion thereof) to the Indemnified Party in respect of such claim beginning on or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to day after the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentCalculation Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TerraForm Power, Inc.)
Limitations on Claims. (a) Neither An Indemnifying Party shall have any no obligation to indemnify the other an Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification by such Indemnifying Party pursuant to this Article 11 equals equal or exceeds two percent exceed One Million Eight Hundred Thirty Five Thousand Five Hundred Fifty Five Dollars (2%) of the Purchase Price (the $1,835,555)(the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses to the extent resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, warranty or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Fifty Thousand Dollars ($100,00050,000) (the “Claim Threshold”).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Seller Indemnifying Parties and the Purchaser Indemnifying Parties, respectively, under this Article 11 resulting from any claims under any breaches of representations or warranties herein and in any certificates delivered pursuant hereto hereto, shall be limited to an amount equal to twelve and one half percent Thirty Six Million Seven Hundred Eleven Thousand One Hundred Three Dollars (12.5%) of the Purchase Price (the $36,711,103)(the “Cap”); provided that, the Cap shall not apply to Losses to the extent resulting from, arising out of or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.
(d) The amount of any claim pursuant to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided provided, that such payment shall not exceed the amount of the indemnity payment.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clearway Energy, Inc.)
Limitations on Claims. (a) Neither Party Notwithstanding anything to the contrary in this Agreement, indemnification under Section 7.02 shall have any obligation to indemnify the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification not be available pursuant to this Article 11 VII unless and until the amount of indemnifiable Damages asserted against Sellers under this Article VII equals or exceeds two percent (2%i) an amount equal to $10,000 resulting from any single Claim or aggregated Claims arising out of the Purchase Price same facts, event or circumstances (the “Per Claim Deductible”), and (ii) an amount equal to $100,000 in the aggregate (the “Deductible”) in which event ). Once the Indemnifying Deductible has been exceeded, the Purchaser Indemnified Party shall be liable for Losses only entitled to the extent they are in excess benefit of the Deductibleindemnity under Section 7.02 for the full amount of any Claim; provided thatprovided, however, that the Per Claim Deductible and the Deductible shall not apply to Losses resulting from, claims for Damages to the extent arising out of, resulting from or incident to any inaccuracy or breaches by Sellers of or relating to their warranties set forth in Sections 2.01 (iOrganization of Sellers; Authority and Binding Effect), 2.03 (Capitalization; Ownership of Shares) any willful breach of any representation or warranty, or and 2.12 (ii) fraudBrokers and Finders).
(b) Neither Party Notwithstanding anything to the contrary contained in this Agreement, the maximum aggregate amount of indemnifiable Damages that may be recovered with respect to Claims made under Sections 7.02 and 7.04 shall have any obligation to indemnify equal $3,000,000 (the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000“Indemnification Cap”).
(c) Except as otherwise provided in Section 11.04(d)Notwithstanding any other provision of this Agreement to the contrary, the aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto neither Party shall be limited required to an amount equal indemnify, hold harmless or otherwise compensate the other Party (or any other Person) for Damages with respect to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided thatmental or emotional distress or exemplary, the Cap shall not apply to Losses resulting fromconsequential, arising out of special or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02punitive damages.
(d) The amount of any claim pursuant to this Article 11 will Damages claimed by any Purchaser Indemnified Party hereunder shall be reduced by net of any allowances and reserves provided in the Financial Statements or the Closing Balance Sheet that are specifically identified with respect thereto.
(e) The amount of any insurance proceeds Damages claimed by any Purchaser Indemnified Party hereunder shall be net of any insurance, indemnity, contribution, Tax benefit or other payments or recoveries of a like nature with respect thereto actually recovered received by Purchaser, its Affiliates or any of their respective Representatives (less it being agreed that, promptly after the cost realization of any such reductions of Damages pursuant hereto, such Purchaser Indemnified Party shall reimburse Sellers for such reduction in Damages for which such Purchaser Indemnified Party was indemnified prior to collect the proceeds realization of such insurance and reductions of Damages).
(f) Notwithstanding any provision to the amountcontrary contained in this Agreement, if anyin the event that an Indemnifying Party can establish that an Indemnified Party had actual knowledge, on or prior to the Closing Date, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt a breach of a refund warranty or covenant of Taxes the Indemnifying Party upon which a claim for indemnification by the Indemnified PartiesParty is based, in each case only with respect then the Indemnifying Party shall have no liability for any Damages resulting from or arising out of such claim.
(g) If an Indemnified Party recovers Damages from an Indemnifying Party under this Article VII, the Indemnifying Party shall be subrogated, to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect extent of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made recovery, to the Indemnified Party’s rights against any third party, other than a third party with whom the Indemnified Party shall promptly make payment has a material business agreement or arrangement, with respect to such recovered Losses subject to the subrogation rights of any insurer providing insurance coverage under one of the Indemnified Party’s policies and except to the extent that the grant of subrogation rights to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed is prohibited by the terms of the applicable insurance policy.
(h) The amount of any Damages claimed by any Purchaser Indemnified Party hereunder shall be reduced to the indemnity paymentextent that Purchaser shall have received the benefit of an adjustment pursuant to Section 1.05 due to the fact that the item that is the subject of the indemnification claim was specifically taken into account in the Closing Determination or the Closing Balance Sheet.
Appears in 1 contract
Limitations on Claims. (a) Neither Party a. Subject to Section 37(b), Sellers, in their capacity as indemnifying parties under Section 34, and Purchaser, in its capacity as an indemnifying party under Section 35, shall not have any obligation to indemnify the other any Purchaser Indemnified Party or Seller Indemnified Party, as applicable, until the aggregate amount of all such claimed Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two percent (2%) of the Purchase Price applicable Indemnified Party (for the avoidance of doubt, including any amount not claimed because of the operation of the threshold) exceeds an amount equal to One Hundred Fifty Thousand United States Dollars and Zero Cents ($150,000.00 USD) (the “DeductibleBasket”) in ), at which event time the applicable Indemnifying Party shall be liable required to indemnify the applicable Indemnified Party for all Losses only to from and including the extent they are in excess of first dollar; provided, however, that the Deductible; provided that, the Deductible Basket shall not apply to Losses resulting from, arising out of or relating to any claim for indemnification for (i) Sellers’ operation of the Business or the ownership and use of the Assets prior to the Closing and relating to the period prior to the Closing, (ii) Purchaser’s operation of the Business or the ownership and use of the Assets from and after the Closing and relating to the period after the Closing, (iii) a breach of any willful covenant, (iv) any Fundamental Representation, (v) any Tax Liabilities, (vi) the Pre-Closing Actions, or (vii) in respect of any breach of any representation or warranty, or (ii) fraudwarranty involving Fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the b. The aggregate liability of the Indemnifying Parties Sellers under this Article 11 Section 34 or Purchaser under Section 35, as applicable, resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited as follows: with respect to Losses resulting from breaches of representations or warranties herein that are not Fundamental Representations, to an amount equal to twelve and one half twenty-five percent (12.525%) of the Purchase Price actually received by Sellers as of the time of the indemnification claim (which, if Purchaser is otherwise entitled to indemnification in accordance with the terms hereof, may be offset by prior written notice to Sellers against any portion of the Purchase Price or Eligible Collections not yet paid or payable or collected and remitted, as applicable) (collectively, the “Cap”); provided thatthat any claim for indemnification in respect of any breach of any covenant or any representation or warranty involving Fraud shall not be subject to the Cap. Notwithstanding anything to the contrary set forth herein, in no event shall the Cap shall not apply to Losses resulting from, arising out of or relating with respect to (i) any willful breach Seller’s Pre-Closing Liabilities, including, without limitation, the Closing Date Indebtedness (as may be adjusted post-Closing in accordance with Section 4(d)) except in each case to the extent not previously credited to the Purchase Price, and, for the avoidance of doubt, costs and expenses incurred in connection with any representation or warranty or Pre-Closing Actions, (ii) fraud; andany Fundamental Representation, provided further, that the Cap shall not apply to (iii) Purchaser’s payment obligation operation of the Business or the ownership and use of the Assets from and after the Closing relating to the period after Closing, (iv) Tax Liabilities, and (v) Fraud. Without limiting the foregoing, any Losses incurred by the Purchaser Indemnified Parties to which they are entitled to indemnification in accordance with the terms hereof shall first, by prior written notice to Sellers from Purchaser, be offset against any portion of the Purchase Price not yet paid or payable under Section 2.02the Notes or Eligible Collections collected but not yet remitted to Sellers, with such offset to be proportionately applied among the Notes and Sellers prior to Sellers being required to pay out-of-pocket for any Losses.
(d) The amount of any claim pursuant c. No Purchaser Indemnified Party or Seller Indemnified Party shall be entitled to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only duplicate recovery with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such any indemnification claim or under this Agreement, even though the facts or events series of related facts giving rise to such indemnity obligationclaim may constitute a breach of more than one representation, warranty or covenant or agreement set forth herein, or any of the agreements or instruments entered into in connection herewith. If For the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made avoidance of doubt, Sellers’ indemnification under Section 34 shall be without duplication of any Closing Date Indebtedness to the Indemnified Party, extent credited to Purchaser in calculating the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentFirst Installment.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Healthtech Solutions, Inc./Ut)
Limitations on Claims. (a) Neither Subject to Section 11.04(b), an Indemnifying Party shall not have any obligation to indemnify the other Indemnified Party until the aggregate amount of all such Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two one percent (21%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Deductible”) in ), at which event time the Indemnifying Party shall be liable required to indemnify the Indemnified Party for Losses only to the extent they are all amounts in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Indemnifying Parties Party under this Article ARTICLE 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent fifteen (12.515%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Cap”)) unless arising from breach of any Fundamental Representation or any covenant, in which case the aggregate liability of the Indemnifying Party shall not exceed one hundred (100%) of the Purchase Price; provided thatprovided, however, that the Deductible and Cap shall not apply to Losses resulting from, arising out of or relating any claim for indemnification pursuant to (i) Section 11.01 or Section 11.02 in respect of any claim involving fraud or fraudulent misrepresentation or willful misconduct or any breach of any representation or warranty contained in Section 3.14 or (ii) fraud; andSection 11.01(ii), provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.0211.01(iii) or Section 11.01(iv).
(dc) The amount of any claim pursuant to Notwithstanding anything in this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect Agreement to the taxable year contrary, Seller shall have no obligation to indemnify under this Agreement for any Taxes arising in which any period (or portion thereof) beginning on the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit day after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentCalculation Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TerraForm Power, Inc.)
Limitations on Claims. (a) Neither Party shall have any obligation to indemnify the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that The claims provided for in Sections 9.1 and 9.2 above are subject to indemnification pursuant the following limitations:
9.3.1 No Party will be liable hereunder with respect to claims referred to in Section 9.2 above unless the other Party gives prior written notice of a claim or a potential claim prior to the Applicable Limitation Date, so as to allow the other Party to minimize the Loss. Notwithstanding any implication to the contrary contained in this Agreement, so long as a Party (x) so delivers written notice of a claim and (y) files an arbitral action with the ICC with six months from the Applicable Limitation Date and (z) serves the request for arbitration on the other Parties within six months from the Applicable Limitation Date, the other Party shall be required to compensate as provided in and within the limitations of Article 11 equals IX hereof, for all Losses and within the limitations so claimed by the Party requesting the indemnification.
9.3.2 The Sellers shall not be liable for any claim arising out of or exceeds two percent (2%) in connection with this Agreement, including, without limitation, for any Loss arising under Clause 9.2.1 above, unless, except otherwise provided below, the amount of the Purchase Price Loss exceeds EUR 50,000 (fifty thousand Euros) individually (the “DeductibleDe Minimis”) or EUR 250,000 (two hundred and fifty thousand Euros) in the aggregate (the “Basket”), in which event case the Indemnifying Party Sellers shall be liable for all such Losses only to (provided that the extent they are in excess amount of these exceed EUR 50,000) the Deductibletotal of which exceed the Basket; further provided thatthat once the Basket is achieved from all Losses (except De Minimis losses), there shall no longer be any De Minimis or Basket; The Basket limitation and the Deductible De Minimis limitation shall not apply with respect to Losses resulting fromany Loss arising from a breach of the representations and warranties of the Sellers set forth in Section 6.1 (Organization), Section6.2 (Authorization of Transactions), Section 6.3 (Capitalization), Section 6.4 (Transformation of CARD), Section 6.12 (Taxes) and Sections 7.1 through 7.3 and Section 7.6. The De Minimis amounts and the Basket amounts for each of Section 6.7 (Financial Statements) and Section 6.8 (Undisclosed Liabilities) shall be EUR 10,000 and EUR 100,000, respectively.
9.3.3 The Buyers shall not be liable for any claim arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with the Transaction Documents, including, without limitation, for any single item Loss arising under Clause 9.2.2 above, unless the amount of such Losses exceeds EUR 50,000 individually (the “De Minimis”) or group of related items that result in Losses that are subject to indemnification EUR 250,000 in the aggregate (the “Basket”), in which case the Buyers shall be liable for all such Losses (provided that the amount of less than One Hundred Thousand Dollars these exceed EUR 50,000) the total of which exceed the Basket; further provided that once the Basket is achieved from all Losses ($100,000except De Minimis losses).
(c) Except as otherwise provided , there shall no longer be any De Minimis or Basket; The Basket limitation and the De Minimis limitation shall not apply with respect to any Loss arising from or related to a breach of the representations and warranties of the Buyers set forth in Section 11.04(d8.2 (Authorization of Transaction) or Section 8.7 (SMI Shares);
9.3.4 The aggregate liability of each of the respective Sellers for all such Losses and for any and all claims out of or in connection with this Agreement shall not exceed 50% (fifty per cent) of the Limited KG Payment (Cash and Stock) in case of CASAG and of the Unlimited KG Payment in case of CAI, which, in each case, was actually received by the respective Seller; however, there shall be no limit on the aggregate liability for a breach of Sellers’ representation under Section 6.1 (Organization), Section 6.2 (Authorization of Transactions), Section 6.3 (Capitalization), Section 6.4 (Transformation of CARD), Section 6.12 (Taxes) and Sections 7.1 through 7.3 and Section 7.6. As a sub-threshold within such 50% threshold, in no event shall the aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not apply to CASAG for all Losses resulting from, arising out of or relating to in connection with Proprietary Rights, including, without limitation, under Sections 6.14 and 6.15 hereof, exceed EUR 4,000.000 (i) four million Euros).
9.3.5 The Buyers’ aggregate liability for all such Losses and for any willful and all claims out of or in connection with this Agreement, other than the Purchase Price, shall not exceed EUR 4,000.000 (four million Euros); however, there shall be no limit for the aggregate liability of Buyers for a breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation Buyers’ representations under Section 2.02.
8.2 (d) The amount Authorization of any claim pursuant to this Article 11 will Transaction), and there shall be reduced by a limit for the aggregate liability of Buyers in the amount of any insurance proceeds actually recovered EUR 15,813,000 (less the cost to collect the proceeds fifteen million eight hundred thirteen thousand Euros) for a breach of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit Buyers representations under Section 8.7 (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentSMI Shares).
Appears in 1 contract
Limitations on Claims. 11.1 The provisions of this clause 11 (aexcept for clause 11.11 which shall apply generally in its terms) Neither Party shall have any obligation operate to indemnify define and limit the other Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two percent (2%) liability of the Purchase Price (the “Deductible”) Vendor in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach respect of any representation or warranty, or (ii) fraudClaims and to establish the circumstances within which Claims may be made.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the 11.2 The maximum aggregate liability of the Indemnifying Parties under this Article 11 resulting from breaches of representations or warranties herein and Vendor in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) of the Purchase Price (the “Cap”); provided that, the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty or (ii) fraud; and, provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.02.respect of:
(da) The amount of any claim pursuant to this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment all Claims shall not exceed the amount of the indemnity Consideration;
(b) (subject to the overall limit in paragraph (a)) all Claims pursuant to paragraph 11 of the Warranties shall not exceed 15,000,000; and
(c) (subject to the overall limit in paragraph (a)) all Claims other than those made pursuant to paragraphs 1, 2.1, 2.2 or 11 of the Warranties shall not exceed (pounds)10,000,000.
11.3 The Vendor shall not have any liability in respect of any individual Warranty Claim (other than a Claim pursuant to paragraphs 1, 2.1 or 2.2 of the Warranties) unless its liability in respect of such Claim exceeds (pounds)50,000. Where a series of Claims arise out of the same act, omission, fact or circumstances, they shall be aggregated for the purposes of determining whether or not the relevant one of these thresholds has been exceeded. For the avoidance of doubt amounts for which the Vendor has no liability, or by which its liability is reduced, as a consequence of the operation of this clause 11 or clause 12 shall not be taken into account in determining whether the amount of such Claim exceeds the threshold specified in this clause 11.3.
(a) The Vendor shall not have any liability in respect of any Warranty Claim (other than a Claim pursuant to paragraphs 1, 2.1 or 2.2 of the Warranties) unless the aggregate amount of its liability in respect of all Claims under the Warranties exceeds (pound)1,000,000 in which case it shall only be liable for the excess.
(b) For the avoidance of doubt, amounts for which the Vendor has no liability, or by which the Vendor's liability is reduced, as a consequence of the operation of this clause 11 and/or clauses 10 or 12 shall not be capable of being aggregated as a Claim or part thereof with other Claims for the purposes of this clause 11.4.
11.5 The Vendor shall not be liable for any Claim unless the Vendor shall have received from the Purchaser written notice containing specific reasonable details of the Claim, including the Purchaser's estimate (on a without prejudice basis) of the amount of such Claim, on or before the date falling one (1) year after the Closing Date. The Purchaser shall give notice to the Vendor of the relevant facts or matter that may give rise to a Claim as soon as practicable after it becomes aware of such facts or matter. Failure to give such notice shall not of itself prevent the Purchaser from bringing the relevant Claim, but the Vendor shall not be liable to the Purchaser in respect of such Claim to the extent that the amount of it is increased, or is not reduced, as a result of such failure.
11.6 Any Claim shall (if it has not been previously satisfied, settled or withdrawn) be deemed to have been withdrawn (and no new claim may be made in respect of the facts giving rise to such withdrawn claim) unless legal proceedings in respect of it have been commenced by both being issued and served within nine (9) months of the rejection in writing of such Claim by the Vendor.
11.7 The liability of the Vendor for any Claim in respect of any fact, matter, event or circumstance shall be reduced or extinguished:
(a) to the extent that such Claim arises or, such Claim otherwise having arisen, is increased as a result of any legislation not in force at the date hereof or any change of law, regulation, directive, requirement or administrative practice having the force of law or the practice of any tax authority or any change in rates of tax made after the Closing Date;
(b) to the extent that such Claim would not have arisen but for, or is increased as a result of, a voluntary act, omission, transaction or arrangement (other than any voluntary act, omission, transaction or arrangement which is contemplated by this Agreement) carried out after the Closing Date by the Purchaser or any other member of the Purchaser's Group or their respective directors, employees or agents where such person had actual knowledge that such act, omission, transaction or arrangement would or would be likely to give rise to or increase a Claim and a reasonable alternate course of action was available which would not be expected to give rise to a claim;
(c) to the extent that the amount of such Claim is recovered under any policy of insurance;
(d) if the Purchaser failed to comply or procure compliance with the terms of any provision of this Agreement, to the extent that the Vendor could have avoided or mitigated the loss arising from the subject matter of the Claim if the Purchaser had complied with such provision; or
(e) to the extent that the Claim or breach would not have arisen but for an act, omission, transaction or arrangement carried out by the Vendor or any member of the Vendor's Group at the written request or with the written approval of the Purchaser or any other member of the Purchaser's Group or any of their respective authorised representatives except when any employee of the Vendor's Group who either receives such request or seeks such approval has actual knowledge at the relevant time that the Claim will arise or increase as a result of the matter in respect of which the request, consent or approval is made or given and fails to disclose that fact to the Purchaser.
11.8 If any Claim shall arise by reason of some liability which at the time that the Claim is notified to the Vendor is contingent only, the Vendor shall be under no obligation to make any payment to the Purchaser in respect of such Claim until such time as such contingent liability ceases to be so contingent. Clause 11.6 shall be amended in relation to such Claim so that the Claim shall not be deemed to be withdrawn unless legal proceedings have not been commenced within nine months from the later of (i) the date on which the said liability ceases to be contingent; and (ii) the rejection in writing of such Claim by the Vendor.
11.9 The Purchaser's Group shall not be entitled to recover any Costs more than once to the extent that this could lead to double-recovery of the same Costs in relation to the claims under more than one of the Warranties and/or indemnities provided by members of the Vendor's Group under, or in connection with, this Agreement or the Ancillary Agreements. The Vendor and the Purchaser hereby agree with each other that, to the extent that a benefit or saving obtained by any member of the Purchaser's Group has been taken into account in reducing any claim or has given rise to a payment by the Purchaser's Group under this Agreement, it shall not be so taken into account again or give rise to another such payment.
11.10 Before making a Claim in respect of any breach of the Warranties which is capable of remedy, the Purchaser shall allow the Vendor thirty (30) days after the date on which notice of the relevant facts or matter that may give rise to a Claim is given in accordance with clause 11.5 in order to allow the Vendor to remedy the breach unless to do so would prejudice the Purchaser to any significant extent.
11.11 Each of the Vendor and the Purchaser hereby waives and relinquishes any right of set off or counterclaim, deduction or retention which it might otherwise have in respect of any Claim or out of any payments which it may be obliged to make (or procure to be made) to the other of them pursuant to this Agreement.
11.12 The limitations on liability set out in this clause 11 shall not apply to any liability for any Claim to the extent such Claim is attributable to, or such Claim is increased as a result of, fraud or deceit on the part of the Vendor or any of its Related Persons.
11.13 The sole remedy against the Vendor for any breach by it of any of the Warranties shall be an action for damages. The Purchaser shall not be entitled to rescind this Agreement before or after Closing in any circumstances.
11.14 Nothing in this clause 11 or clauses 10 and 12 shall in any way restrict or limit the general obligation at law of the Purchaser to mitigate any loss or damage which it may suffer in consequence of any breach by the Vendor of the terms of this Agreement or any fact, matter, event or circumstance giving rise to a Warranty Claim.
Appears in 1 contract
Limitations on Claims. (a) Neither Subject to Section 11.04(b), an Indemnifying Party shall not have any obligation to indemnify the other Indemnified Party until the aggregate amount of all such Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two one percent (21%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Deductible”) in ), at which event time the Indemnifying Party shall be liable required to indemnify the Indemnified Party for Losses only to the extent they are all amounts in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Indemnifying Parties Party under this Article ARTICLE 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent fifteen (12.515%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Cap”)) unless arising from breach of any Fundamental Representation or any covenant, in which case the aggregate liability of the Indemnifying Party shall not exceed one hundred (100%) of the Purchase Price; provided thatprovided, however, that the Deductible and Cap shall not apply to Losses resulting from, arising out of or relating any claim for indemnification pursuant to (i) Section 11.01 or Section 11.02 in respect of any claim involving fraud or fraudulent misrepresentation or willful misconduct or any breach of any representation or warranty contained in Section 3.14 or (ii) fraud; andSection 11.01(ii), provided further, that the Cap shall not apply to Purchaser’s payment obligation under or Section 2.0211.01(iii).
(dc) The amount of any claim pursuant to Notwithstanding anything in this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect Agreement to the taxable year contrary, Seller shall have no obligation to indemnify under this Agreement for any Taxes arising in which the Loss was incurred any period (or paidportion thereof) to the Indemnified Party in respect of such claim beginning on or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to day after the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentCalculation Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (TerraForm Power, Inc.)
Limitations on Claims. (a) Neither An Indemnifying Party shall have any no obligation to indemnify the other an Indemnified Party until the aggregate amount of all Losses incurred by such Party that are subject to indemnification by such Indemnifying Party pursuant to this Article 11 equals 6 equal or exceeds two percent (2%) exceed [***] of the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only to the extent they are in excess of the Deductible; provided that, that the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful Fraudulent Action, (ii) the matters referenced on Schedule 6.01, or (iii) a breach of any representation or warranty, or (ii) fraudFundamental Representations.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Seller Indemnifying Parties and the Purchaser Indemnifying Parties under this Article 11 6 resulting from any claims under any breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent (12.5%) [***] of the Purchase Price (the “Cap”); provided that, that the Cap shall not apply to Losses resulting from, arising out of or relating to to: (i) any willful breach of any representation or warranty Fraudulent Action or (ii) frauda breach of the Fundamental Representations. The aggregate liability of the Seller Indemnifying Parties or the Purchaser Indemnifying Parties, as applicable, resulting from breaches of representations or warranties (including Fundamental Representations), covenants, agreements or obligations made in this Agreement or in any certificates delivered pursuant hereto (including, for the avoidance of doubt, in respect of the matters referenced on Schedule 6.01, other than item 2 of Schedule 6.01), shall be limited to an amount equal to the Purchase Price (the “Aggregate Cap”); and, provided further, that the Aggregate Cap shall not apply to PurchaserLosses resulting from, arising out of or relating to the matters referenced in item 2 of Schedule 6.01; provided, further, in no event shall the sum of Seller’s payment obligation liability resulting from any claims under Section 2.02item 2 of Schedule 6.01, in the aggregate, exceed the Tax Loss Cap.
(dc) The amount of any claim pursuant to this Article 11 6 will be reduced by the amount of (i) any actual recovery under insurance proceeds actually recovered policies that provide coverage, (less the cost to collect the proceeds ii) any actual recovery of such insurance reimbursement, indemnification or payment from any third Person, and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto(iii) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified PartiesParties (or, in the case of an Indemnified Party that is either a disregarded entity, partnership or other pass-through entity for U.S. federal income tax purposes, the ultimate taxpayer(s) with respect to such entity), in each case only with respect to the taxable year in which the Loss was incurred or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such payment or Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such payment or Tax benefit; provided that such payment shall not exceed the amount of the indemnity payment.
(d) Notwithstanding any provision of this Agreement to the contrary, neither Purchaser nor Seller shall be obligated to indemnify any Seller Indemnified Party or Purchaser Indemnified Party, as applicable, for any Losses to the extent such Loss is accounted for in the determination of the Adjusted Purchase Price pursuant to the Adjusted Purchase Price Model.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Clearway Energy LLC)
Limitations on Claims. (a) Neither Subject to Section 11.04(b), an Indemnifying Party shall not have any obligation to indemnify the other Indemnified Party until the aggregate amount of all such Losses incurred by such Party that are subject to indemnification pursuant to this Article 11 equals or exceeds two one percent (21%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Deductible”) in ), at which event time the Indemnifying Party shall be liable required to indemnify the Indemnified Party for Losses only to the extent they are all amounts in excess of the Deductible; provided that, the Deductible shall not apply to Losses resulting from, arising out of or relating to (i) any willful breach of any representation or warranty, or (ii) fraud.
(b) Neither Party shall have any obligation to indemnify the other Indemnified Party in connection with any single item or group of related items that result in Losses that are subject to indemnification in the aggregate of less than One Hundred Thousand Dollars ($100,000).
(c) Except as otherwise provided in Section 11.04(d), the The aggregate liability of the Indemnifying Parties Party under this Article ARTICLE 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to twelve and one half percent fifteen (12.515%) of the Purchase Price actually paid by Purchaser as of the relevant date (the “Cap”)) unless arising from breach of any Fundamental Representation or any covenant, in which case the aggregate liability of the Indemnifying Party shall not exceed one hundred (100%) of the Purchase Price; provided thatprovided, however, that the Deductible and Cap shall not apply to Losses resulting from, arising out of or relating any claim for indemnification pursuant to (i) Section 11.01 or Section 11.02 in respect of any claim involving fraud or fraudulent misrepresentation or willful misconduct or any breach of any representation or warranty contained in Section 3.14 or (ii) fraud; andSection 11.01(ii), provided further, that the Cap shall not apply to Purchaser’s payment obligation under Section 2.0211.01(iii) or Section 11.01(iv).
(dc) The amount of any claim pursuant to Notwithstanding anything in this Article 11 will be reduced by the amount of any insurance proceeds actually recovered (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties, in each case only with respect Agreement to the taxable year contrary, Seller shall have no obligation to indemnify under this Agreement for any Taxes arising in which the Loss was incurred any period (or paidportion thereof) to the Indemnified Party in respect of such claim beginning on or the facts or events giving rise to such indemnity obligation. If the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to day after the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided that such payment shall not exceed the amount of the indemnity paymentCalculation Date.
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Sources: Purchase and Sale Agreement (TerraForm Power, Inc.)