Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement. (b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement. (c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants. (d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement. (e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter. (f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded. (g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.1 and Section 8.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the The Seller Indemnifying Parties shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i) 8.1 unless and until the aggregate amount of all Losses indemnified under such Damages section exceeds an amount equal to $250,000 50,000 (the “Indemnification DeductibleBasket”), in which event the Seller Indemnifying Parties shall be liable for Losses in excess of such amount; and provided further provided, that the Basket will not apply to or otherwise be comprised of any Losses based upon, arising out of, with respect to or by reason of (i) a breach of any Seller Parties Fundamental Representations or (ii) for fraud, willful misconduct or intentional misrepresentation.
(b) The amount of all Losses for which the Contributing Shareholders shall be liable for indemnification under this Article VIII shall not exceed the amount equal to such Contributing Shareholder’s percentage ownership in the case Company multiplied by the Contributions actually received by the Company from Buyer under this Agreement, except in the event of fraud committed by such Contributing Shareholder. Except in the event of fraud, willful misconduct or intentional misrepresentation committed by a Contributing Shareholder, Buyer Indemnitees’ recovery from such Contributing Shareholder shall be limited to Company stock owned by such Contributing Shareholder.
(c) The amount of all Losses for which the Seller Indemnifying Parties shall be liable for indemnification under this Article VIII shall not exceed the lesser of (i) an aggregate amount of $10,000,000 or the (ii) the fair market value of the Shares owned by the Seller Indemnifying Parties, except in the event of fraud, willful misconduct or intentional misrepresentation committed by such Seller Indemnifying Party. Except in the event of fraud, willful misconduct or intentional misrepresentation committed by a Seller Indemnifying Party, and only for amounts in excess of Company Formation Expenses and Company Transaction Expenses paid by Buyer Indemnitees, Buyer Indemnitees’ recovery from a Seller Indemnifying Party shall be limited to Company stock owned by the Seller Indemnifying Party.
(d) Payments by the Seller Indemnifying Parties pursuant to Section 8.1 or the Buyer Indemnifying Party pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Seller Indemnifying Parties or the buyer Indemnifying Party (or the Company) in respect of any such claim. The Seller Indemnifying Parties and the Buyer Indemnifying Party, as applicable, shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses.
(e) Seller Parties shall not be liable under this Article VIII for any Losses based upon or arising out of any inaccuracy in or breach of any Company Fundamental Representation, of the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded representations or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability warranties of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth Parties contained in this Agreement.
(e) No Agreement if Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect had actual knowledge of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation inaccuracy or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating prior to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Contribution and Stock Purchase Agreement (Anteris Technologies Global Corp.)
Certain Limitations. The Party making a claim under this Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i10.1(a) unless with respect to breaches of representations and warranties until the aggregate amount of all Losses that would be payable pursuant to such Damages claim exceeds one million two hundred seventy-five thousand dollars ($250,000 1,275,000) (the “Indemnification Deductible”), in which event Sellers shall be required to pay or be liable for Losses in excess thereof; provided, however, that the aggregate amount of all Losses for which Sellers shall be liable under Section 10.1(a) for breaches of representations and provided further that warranties shall not exceed an amount equal to one million two hundred seventy-five thousand dollars ($1,275,000) (the “Indemnity Cap”) and, absent Fraud, Buyer shall only have recourse to Sellers for any such breaches up to the Indemnity Cap. Notwithstanding anything to the contrary in the case of any inaccuracy in or breach of any Company Fundamental Representationthis Agreement, the Seller Deductible and Indemnity Cap shall be directly liable to not affect or otherwise limit any claim made or available under the Buyer Indemnified Persons to R&W Insurance Policy.
(b) For the extent such Damages are not covered by the Indemnification Insurance Policy for avoidance of doubt, any reason other than the lack of good faith efforts Losses suffered by the Buyer Indemnified Persons Parties from any and all Excluded Claims shall not be subject to seek recovery thereunder and comply with the terms and conditions thereof (including Deductible or the deductible provided for thereinIndemnity Cap; provided, notwithstanding anything to the contrary set forth in this Agreement, the coverage limit being exceeded or coverage being denied), up to an aggregate amount equal to that shall be payable by Sellers for Excluded Claims shall in no event exceed ten percent (10%) of the Purchase Price actually less any amounts paid from the Escrow Amount; and, provided further, that in no event shall any Voting Trust certificate holder be liable or responsible for indemnification claims under this Agreement in an amount in excess of the portion of the Purchase Price received by such Voting Trust certificate holder.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Seller pursuant Indemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery), provided that this Section 10.3(c) shall not apply to this Agreementthe R&W Insurance Policy except to the extent that the amount of insurance proceeds received by the Buyer (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery) are in excess of the retention amount. The Indemnified Party shall use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no Indemnified Party shall be required to commence or engage in litigation or initiate any other Action against any insurance carrier.
(bd) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to mitigate the breach that gives rise to such Loss.
(e) The amount of any indemnity provided under this ARTICLE 10, other than indemnity with respect to claims which are not subjected to the Deductible or the Indemnity Cap, shall be reduced (but not below zero) by the amount of any actual net reduction in cash payments for Taxes realized by the Indemnified Parties as a result of the Losses giving rise to such indemnity claim.
(f) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Sellers shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive have any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or liability for any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value otherwise indemnifiable Loss to the extent that the matter giving rise to such diminution of value is Loss had been reserved for in the probable and reasonably foreseeable result of Company Financial Statements or the applicable breach of a representation, warranty, covenant Closing Statement or agreement hereunder, (ii) the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Estimated Purchase Price pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 1.4.
(g) Seller makes no representations or warranties regarding For the purposes of determining the amount or availability of any net operating lossLosses suffered by any Buyer Indemnified Parties, capital lossthe representations, tax credit carryover warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or other Tax asset or liability Material Adverse Effect qualification therein.
(h) Notwithstanding anything to the contrary contained in this Agreement, none of the Acquired Companies parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any multiple, consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity or statutory damages relating to the breach, except to the extent such damages are actually awarded to a third Person.
(i) In addition to the other limitations contained in this Agreement, the Sellers obligation for Pre-Closing Taxes shall not include any taxable period Taxes (and related Losses) to the extent arising from or portion thereof) beginning after relating to the ClosingReorganization.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tegna Inc)
Certain Limitations. (a) Except with respect to claims for claims arising from Intentional Fraud, criminal activity or willful indemnification based on breaches of covenants, any Damages for which or inaccuracies in the representations and warranties contained in Section 3.3 and 3.7 the Seller shall not be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by indemnify the Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Indemnitees with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons claim for such Damages indemnification pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i9.1(a) unless and until the aggregate amount of such Damages its Losses exceeds $250,000 50,000 (the “Indemnification DeductibleThreshold Amount”); and provided further that , in the case of any inaccuracy in or breach of any Company Fundamental Representation, which event the Seller shall be directly liable to responsible for the Buyer Indemnified Persons to the extent full amount of such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (Losses, including the deductible Threshold Amount, provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) that the aggregate liability of the Seller for all Damages to the Buyer Indemnitees under Section 7.2(a9.1(a) shall not exceed 75% of the Final Purchase Price (the “Cap”).
(b) With respect to any claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 3.3 and 3.7, the Seller agrees to indemnify the Buyer Indemnitees from and against the entirety of any Losses the Buyer Indemnitees may suffer resulting from, arising out of, relating to, in the nature of, or caused by such breaches or inaccuracies up to the full amount of the Purchase Price.
(c) Except with respect to claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, the Buyer shall not be required to indemnify the Seller with respect to any claim for indemnification pursuant to Section 9.2(a) unless and until the aggregate amount of Seller’s Losses exceeds the Threshold Amount, in which event the Buyer shall be responsible for the full amount of such Loss, including the Threshold Amount, provided that the aggregate liability of the Buyer to the Seller under Section 9.2(a) shall not exceed the aggregate Purchase Price actually received by Cap. With respect to any claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, the Buyer agrees to indemnify the Seller pursuant to this AgreementIndemnitees from and against the entirety of any Losses the Seller Indemnitees may suffer resulting from, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequentialarising out of, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptrelating to, in each casethe nature of, (i) in the event of diminution of value or caused by such breaches or inaccuracies up to the extent that such diminution of value is the probable and reasonably foreseeable result full amount of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsPurchase Price.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect IX, any breach of or inaccuracy in any representation or warranty shall be determined without regard to any claim materiality or group of related claims shall only Material Adverse Effect or similar qualification or exception and any qualification or requirement that a matter be entitled or not be reasonably expected to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementoccur.
(e) No Buyer Indemnified Person Except as set forth in Section 7.1 above, the rights to indemnification provided for in this Article IX shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation sole and exclusive remedy of the Final Buyer or the Seller, as the case may be, after the Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability breaches of or reserve relating to such matter.
(f) For purposes inaccuracy of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies Seller or the Buyer, respectively, herein; provided that nothing herein shall limit in any taxable period (way any such party’s remedies in respect of fraud, gross negligence or portion thereof) beginning after willful misconduct by the Closingother party in connection herewith or the transactions contemplated hereby.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $25,000.00 (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Indemnitees shall be liable pursuant to Section 7.2(a)(i) 8.02 shall be satisfied solely by recovery by Buyer under not exceed the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any Escrow Share Amount held in Escrow at that such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 time (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding anything else set forth in this Agreement, except as set forth in Section 8.04(d) and Section 8.09 hereof, the “Indemnification Deductible”); Escrow Share Amount held in escrow by Escrow Agent shall be the sole and exclusive remedy for Buyer Indemnitees for all Losses for which Seller shall be liable.
(d) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon claims arising out of fraud, criminal activity or willful misconduct, in which case such Losses shall be limited solely to the Seller and, provided further that Seller and the Seller Affiliates did not participate in or have knowledge of such fraud prior to the case date hereof, solely up to the Consideration Shares actually received by the Seller.
(e) For purposes of this Article VIII, the calculation of any Losses as a result of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of shall be determined without regard to any Damages resulting therefrommateriality, all qualifications Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) except where Losses from any individual claim or series of related claims arising in respect of indemnification under Section 8.02(a) exceeds $10,000 (the “De Minimus Amount”), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 1,500,000 (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until except where Losses from any individual claim or series of related claims in respect of indemnification under Section 8.03(a) exceeds the De Minimus Amount, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of such Damages exceeds $250,000 all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Buyer Indemnitees’ sole recourse for the “Indemnification Deductible”); and provided further that indemnification by Sellers set forth in Section 8.04(a) above shall be limited to the amounts in the case Indemnification Escrow Fund, and the Buyer’s right of set-off against any Earn-Out Payments due to Sellers as set forth in Section 2.08(g) herein. For the avoidance of doubt, Buyer Indemnitees shall not have a right of set-off against the Initial Payment, One Year Fixed Payment, or Two Year Fixed Payment, except for the amounts in the Indemnification Escrow Fund.
(d) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty in Section 3.01, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 3.03, Section 3.19, Section 3.20, Section 3.24, Section 4.01 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 4.04.
(be) Notwithstanding anything For purposes of this ARTICLE VIII, 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 no event shall any Indemnifying Party (as defined below) be liable to any Indemnified Party (as defined below) for any punitive, special or indirect damages, relating to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity breach or willful breaches alleged breach of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability or diminution of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages value or any damages based on any type of multiple, except, in each case, multiple (i) in the event of diminution of value other than indemnification for amounts paid or payable to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) parties in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) third-party claim for any Damages relating to any matter to the extent that there which indemnification hereunder is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedotherwise required).
(g) Seller makes no representations or warranties regarding the amount or availability Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any net operating lossevent or circumstance that would be reasonably expected to, capital lossor does, tax credit carryover or other Tax asset or liability of the Acquired Companies in give rise to any taxable period (or portion thereof) beginning after the ClosingLosses that are indemnifiable hereunder.
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Certain Limitations. The indemnification provided for in Section 6.2 and Section 6.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Purchaser Indemnitees for indemnification under Section 7.2(a)(i6.2(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.2(a) exceeds $250,000 200,000, exclusive of claims or groups of related claims for Losses not exceeding $10,000 (the “Indemnification Deductible”); and provided further that , in which case the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Sellers shall be directly liable under Section 6.2(a) only for such Losses that exceed the Deductible. The Purchaser shall not be liable to Seller Indemnitees for indemnification under Section 6.3(a) until the Buyer Indemnified Persons aggregate amount of all Losses in respect of indemnification under Section 6.3(a) exceeds the Deductible, in which case the Purchaser shall be liable under Section 6.3(a) only for such Losses that exceed the Deductible.
(b) The Purchaser Indemnitees shall not be entitled to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack indemnification pursuant to Section 6.2(a) with respect to aggregate Losses in excess of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to $4,350,000 (the Purchase Price actually received by the Seller “General Cap”). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to this AgreementSection 6.2(b) or Section 6.2(c) with respect to aggregate Losses in excess of an amount equal to $43,500,000. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(a) with respect to aggregate Losses in excess of the General Cap. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(b) or Section 6.3(c) with respect to aggregate Losses in excess of an amount equal to $43,500,000.
(bc) Notwithstanding anything to the contrary hereinin this Agreement or any other Transaction Document, except for Damages resulting from Intentional Fraudthere shall be no deductible, criminal activity cap or other limitation or restriction on, and nothing herein shall impair, any claim based upon fraud, intentional misrepresentation or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsmisconduct.
(d) An Indemnified Person entitled The Purchaser Indemnitees will not be indemnified, and the Sellers will have no liability hereunder, for (i) any Losses to indemnification by an Indemnifying Person pursuant to this Article VII the extent of any amount with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding thereto that such claim or group of related claims may constitute a breach of two or more representations and/or warranties is set forth on the Closing Statement, the Closing Payoff Certificate or Section 2.5(b) of the Disclosure Schedule and taken into account as a deduction in this Agreementdetermining the Closing Cash Consideration or (ii) any Losses constituting punitive damages except to the extent actually awarded to a third party.
(e) No Buyer Indemnified Person The amount of any Losses for which indemnification is provided under Section 6.2 or Section 6.3 shall be entitled to indemnification under this Agreement reduced by (i) any amounts that are actually recovered by the Indemnified Party from any third party with respect to such Losses and (ii) any insurance proceeds or other cash receipts or source of reimbursement that are actually received by an Indemnified Party with respect to such Losses (net of reasonable costs of recovery or collection and any retention or deductible related to an insurance claim in respect of Losses thereof); provided, however, that no Indemnified Party shall have any Damages obligation to the extent claim, seek or otherwise obtain any such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness third party recoveries or Company Transaction Expenses, insurance proceeds or (ii) for any Damages relating other reimbursement to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterwhich it may be entitled.
(f) For purposes of determining (i) whether there has been With respect to any misrepresentation or breach of claim brought by a representation or warranty and (ii) the amount of Purchaser Indemnitee against any Damages resulting therefrom, all qualifications or exception in any representation or warranty Seller relating to or referring to this Agreement, the terms “material”Sellers expressly waive any right of subrogation, “materiality”contribution, “Material Adverse Effect”advancement, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover indemnification or other Tax asset or liability of claim against any the Acquired Companies in Purchaser Indemnified Party with respect to any taxable period (or portion thereof) beginning after amounts owed by any Seller to any the ClosingPurchaser Indemnitee.
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Certain Limitations. The indemnification provided for in Section 8.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i) 8.2 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 3,750,000.00 (the “Cap”). After the first anniversary of the Closing Date, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds all Losses for which Seller shall be liable pursuant to Section 8.2 shall not exceed $250,000 2,500,000.00 (the “Indemnification DeductibleAdjusted Cap”); and provided further that Buyer Indemnitees have not incurred Losses in an aggregate amount in excess of the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable Adjusted Cap prior to the Buyer Indemnified Persons first anniversary of the Closing Date. If, prior to the extent such Damages are not covered by first anniversary of the Indemnification Insurance Policy for any reason other Closing Date, Buyer Indemnitees have incurred aggregate Losses in excess of the Adjusted Cap, but less than the lack of good faith efforts by Cap (the “First Year Losses”), then the Buyer Indemnified Persons to seek recovery thereunder and comply with Indemnitees will have no further recourse against Seller for Losses incurred under Section 8.2 in excess of the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementFirst Year Losses.
(b) Notwithstanding anything No Buyer Indemnitee will be entitled to the contrary herein, any indemnification pursuant to Section 8.2 (except for Damages resulting claims arising from Intentional Fraud, criminal activity any breach or willful breaches inaccuracy of covenants, (ithe representations or warranties contained in Section 3.20) unless the aggregate liability of all Losses would exceed on a cumulative basis an amount equal to $330,000.00 (the “Basket”), in which in which event the Seller will be required to pay or be liable for all Damages under Section 7.2(a) shall not exceed such Losses from the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementfirst dollar.
(c) The parties hereto expressly waive Nothing in this Section 8.3 shall limit or restrict any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach Buyer Indemnitees’ right to maintain any action or claim or recover any Losses against or from a Person that has committed Fraud. In no event shall Seller be liable for any Losses in excess of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsCash Proceeds.
(d) An Indemnified Person entitled The Seller shall have no right of contribution from any of the Buyer Indemnitees with respect to indemnification by an Indemnifying Person any Loss for which Seller is required to indemnify such Buyer Indemnitee pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementVIII.
(e) No Buyer Indemnified Person shall Indemnitee will be entitled to indemnification under this Agreement hereunder for Losses with respect to any Liability to the extent (i) in respect of any Damages to the extent such Damages were matter was taken into account in the calculation of determining the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, Cash Consideration or (ii) such matter was reserved for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterStatements.
(f) The amount of any and all Losses under this Article VIII and indemnified Taxes under Article VII will be determined net of any Tax Benefits inuring to any Buyer Indemnitee or any of its Affiliates on the account of such Loss. If the Buyer Indemnitee receives a Tax Benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, such Buyer Indemnitee shall promptly, but in no event later than ten (10) days after such time that such Tax Benefit is actually realized, pay to the indemnifying party the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Buyer Indemnitee. A Tax Benefit shall be actually realized by the Buyer Indemnitee upon the receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax Benefit (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions). For purposes of determining hereof, “Tax Benefit” shall mean (i) whether there has been any misrepresentation refund or breach credit of a representation Taxes paid or warranty and (ii) the amount such Buyer Indemnitee’s liability for Taxes through a taxable period, calculated by excluding the relevant amount of any Damages resulting therefromcredit, all qualifications deduction or exception Loss, would exceed such Buyer Indemnitee’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit, deduction or Loss, in any representation or warranty relating to or referring each case computed at the highest marginal Tax rates applicable to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedrecipient of such benefit.
(g) Seller makes no representations or warranties regarding the The amount or availability of any and all Losses under this Article VIII will be determined net operating lossof any amounts actually recovered by any Buyer Indemnitee or any of such Buyer Indemnitee’s Affiliates under or pursuant to any insurance policy, capital losstitle insurance policy, tax credit carryover indemnity, reimbursement arrangement or other Tax asset contract pursuant to which or liability under which such Buyer Indemnitee or such Buyer Indemnitee’s Affiliates is a party or has rights (each a “Policy”). To the extent a Loss is clearly recoverable or for which there is a right of recovery under any such Policy, the Buyer Indemnitee agrees to submit a claim for coverage under such Policy coincident with making a claim for indemnification pursuant to this Article VIII. The final amount to which Seller is obligated to indemnify Buyer Indemnitee shall be calculated after the Buyer Indemnitee receives payment from the insurer under such Policy with respect to the claim or a determination that there is no coverage under such Policy, and then such amount shall be paid in accordance with Section 8.5 of this Agreement. Notwithstanding the foregoing and subject to the Basket, Seller shall reimburse Buyer Indemnitee for the deductible or any reasonable out-of-pocket expenses paid in connection with the submission of the Acquired Companies claim for coverage under any such Policy, which payment will be made in accordance with Section 8.5 of this Agreement.
(h) Nothing in this Agreement will be interpreted to restrict or otherwise limit any taxable period (party’s common law duty to mitigate a Loss it may suffer or portion thereof) beginning after the Closingincur as a result of an event that may give rise to an indemnification claim under this Agreement.
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Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary hereincontained in this Agreement, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches the rights of covenants, the Buyer Indemnified Parties and the Seller Indemnified Parties to indemnification under this Article 14 shall be limited as follows:
(i) the aggregate liability of the Seller no Claim Notice for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant indemnification may be provided with respect to this Agreement, and (ii) the aggregate liability of Buyer any Claim for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or other agreement hereunder, in this Agreement (x) beyond the survival period specified in Section 14.2(c) or (y) prior to the Closing;
(ii) Seller’s aggregate liability for all claims made under Section 14.2(a) shall be limited to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or and shall not $9,000,000;
(iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(dSeller shall have liability for claims made under Section 14.2(a)(iii) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included such claims in the Interim Financial Statements aggregate exceed a specific liability or reserve relating to such matter.deductible amount equal $536,250 (the “Deductible”);
(fiv) For purposes EXCEPT AS OTHERWISE PROVIDED HEREIN, THE INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 14.2 SHALL BE WITHOUT REGARD TO THE INDEMNIFIED PARTY’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT;
(v) the provisions of determining (i) whether this Section 14.2 shall apply in such a manner as not to give duplicative effect to any item of adjustment. If there has been an adjustment to the Purchase Price pursuant to Section 2.2 or Article 12 for any misrepresentation Loss, there shall not be any charge against the Deductible for any such Loss that gave rise to such adjustment in the Purchase Price pursuant to Section 2.2 or breach Article 12 to the extent of a representation or warranty and the amount of such Loss given effect in such adjustment to the Purchase Price;
(iivi) the amount of any Damages resulting therefromLosses for which indemnification is provided under this Section 14.2 shall be computed net of any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses. Each of the Buyer Indemnified Parties and each of the Seller Indemnified Parties shall pursue in good faith claims under any applicable insurance policies and against other third parties who may reasonably be expected to be responsible for such Losses; and
(vii) upon payment of any Losses with respect to a Claim pursuant to this Section 14.2, all qualifications or exception in any representation or warranty relating to or referring the Indemnifying Party shall be subrogated to the terms “material”, “materiality”, “Material Adverse Effect”, “extent of such payment (and to recover costs or expenses incurred by the Indemnifying Party in all material respects” or any similar qualification, term or phrase shall be disregarded.
(genforcing such recovery rights against such Person) Seller makes no representations or warranties regarding to the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability rights of the Acquired Companies in Indemnified Party against any taxable period (Person with respect to the subject matter of such Claim. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of the Indemnifying Party, to pursue any claims against or portion thereof) beginning after the Closingotherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
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Certain Limitations. Notwithstanding anything otherwise provided in Section 10 or otherwise pursuant to this Agreement:
(a) Except for claims Losses arising from Intentional as a result of Actual Fraud, criminal activity or willful breaches of covenants, any Damages for as to which the Seller limitations of this Section 10.6(a) shall be liable not apply, KEG will not have any obligation to indemnify and hold harmless PHI pursuant to this Section 7.2(a)(i10 in respect of Losses arising under Section 10.1 unless and until the amount of the aggregate Losses claimed by PHI exceeds One Hundred Twenty-Five Thousand Two Hundred Forty-Five U.S. Dollars ($125,245) (the “Basket”), whereupon KEG shall be satisfied solely by recovery by Buyer under indemnify, defend, protect and hold harmless the Indemnification Insurance Policy and Buyer will have no recourse against other party for the Seller with respect to any such Damages, whether or not the entirety amount of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) all Losses in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Basket, and (ii) the Seller shall have no KEG’s aggregate liability in respect of claims for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 10.1 shall not exceed Six Million Two Hundred Sixty-Two Thousand Two Hundred Thirty-Five U.S. Dollars ($6,262,235).
(b) Notwithstanding anything to the contrary herein, except Except for Damages resulting from Intentional Losses arising as a result of Actual Fraud, criminal activity or willful breaches as to which the limitations of covenants, (i) the aggregate liability of the Seller for all Damages under this Section 7.2(a10.6(b) shall not exceed the aggregate Purchase Price actually received by the Seller apply, PHI will not have any obligation to indemnify and hold harmless KEG pursuant to this AgreementSection 10 in respect of Losses arising under Section 10.2 unless the aggregate amount of all such Losses incurred or suffered by KEG exceeds the Basket at which point PHI will indemnify KEG for all Losses in excess of the Basket, and (ii) the PHI’s aggregate liability in respect of Buyer claims for all Damages under indemnification pursuant to Section 7.2(b) shall 10.2 will not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPrice.
(c) The parties hereto expressly waive amount of any claim Losses for which an Indemnifying Party shall be liable hereunder shall be determined after deducting therefrom (a) the amount of any insurance proceeds actually received from a third-party insurer and any other amounts actually recovered from a third party pursuant to consequential, punitive indemnification or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptotherwise, in each casecase net of costs and expenses (including collection expenses, premium increases, retro-premiums and any retention amounts), and (ib) the amount of any net cash tax benefit actually realized as a result of such Loss in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant current or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsany prior taxable year.
(d) An Indemnified Person entitled Except with respect to indemnification by an Indemnifying Person pursuant to this Article VII injunctive and other non-monetary equitable relief, PHI and KEG each acknowledge and agree that, from and after the Closing, their sole and exclusive remedy with respect to any claim or group of related and all claims shall only be entitled for money damages pursuant to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person Agreement shall be entitled to indemnification under this Agreement (i) in respect of any Damages pursuant to the extent such Damages were taken into account in the calculation provisions of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterthis Section 10.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 10.2 and Section 10.3 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 10.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 10.2(a) exceeds $100,000 (the “Basket”), criminal activity in which event Sellers shall only be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller shall Sellers may be liable pursuant to Section 7.2(a)(i10.2(a) shall be satisfied solely by recovery by Buyer under not exceed fifteen percent (15%) of the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered Purchase Price actually received by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Sellers (the “Cap”); provided that such limitation shall not apply to any such Losses (i) with respect to breaches of Company Fundamental Reps, for which the maximum amount recoverable by the Buyer Indemnitees shall be limited to the Purchase Price actually received by the Sellers and (ii) with respect to breaches of the Seller shall have no liability Intellectual Property Reps, for indemnification under Section 7.2(a)(i) unless and until which the aggregate maximum amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts recoverable by the Buyer Indemnified Persons Indemnitees shall be limited to seek recovery thereunder and comply with thirty percent (30%) of the terms and conditions thereof (including Purchase Price actually received by the deductible provided Sellers. The aggregate Liability of a particular Seller in respect of any Loss for therein, which such Seller indemnifies the coverage limit being exceeded or coverage being denied), up Buyer Indemnitees pursuant to Section 10.2 shall not exceed an amount equal to the Purchase Price actually received by the such Seller pursuant to this Agreement.
(b) Notwithstanding anything Buyer shall not be liable to the contrary hereinSeller Indemnitees for indemnification under Section 10.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 10.3(a) exceeds the Basket, except in which event Buyer shall only be required to pay or be liable for Damages resulting from Intentional Fraud, criminal activity or willful Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.3(a) shall not exceed the Cap; provided that such limitation shall not apply to any such Losses with respect to breaches of covenantsBuyer Fundamental Reps, for which the maximum amount recoverable by any Seller Indemnitee shall be limited to the Purchase Price actually received by such Seller.
(c) For purposes of calculating the monetary amount of Losses for which any Legal Action may be made against any Indemnifying Party, (i) the aggregate liability amount of the Seller for all Damages under Section 7.2(a) any Losses corresponding to any inaccuracy in or breach of any representation or warranty shall not exceed the aggregate Purchase Price actually received by the Seller pursuant be determined without regard to this Agreementany materiality, and Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty, (ii) the aggregate liability there shall be no duplication of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid recovery by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result reason of the applicable state of facts giving rise to such Losses constituting a breach of a more than one representation, warranty, covenant or agreement hereunder, (ii) and no Indemnified Party will be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Indemnified Party or its Affiliate has received indemnification payments for or been reimbursed for such amount under any other provision of this Agreement or any other document executed in connection with this Agreement (i.e., no double recovery)) and (iii) such monetary amount shall be decreased to the extent of any amounts actually recovered by a third party (including a Governmental Body) from an Indemnified PersonParty under applicable insurance policies. Each Indemnified Party agrees that it shall, and cause its Affiliates to, use commercially reasonable efforts to (x) make or cause to be made all reasonable claims for insurance under insurance policies that may be applicable to the matter giving rise to the indemnification claim hereunder, and (iiiy) in the mitigate any Losses after becoming aware of such Losses or any event of Intentional Fraud, criminal activity or willful breaches of covenantscondition that could reasonably be expected to give rise to any such Losses.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to an action for which specific performance is sought (and solely to the extent such action seeks such relief), each Party acknowledges and agrees that its sole and exclusive remedy with respect to all claims relating to any claim breach, inaccuracy, or group nonfulfillment of related claims any representation, warranty, covenant or agreement in this Agreement or otherwise relating to the transactions contemplated hereby shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties in accordance with, and limited by, the indemnification provisions set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled ARTICLE X. In furtherance of the foregoing, except with respect to indemnification Section 12.11, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement (i) in respect it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Damages Law, except pursuant to the extent such Damages were taken into account indemnification provisions set forth in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.this ARTICLE X.
Appears in 1 contract
Certain Limitations. Notwithstanding any other provision in this Agreement to the contrary, the indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Purchaser Indemnitees for indemnification under Section 8.2(a) (i) unless such claim for indemnification individually or a series of related claims arising from Intentional Fraudinvolves Losses in excess of Fifty Thousand Dollars ($50,000) (the “De Minimis Amount”), criminal activity it being understood that if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to or willful breaches considered for purposes of covenantscalculating the aggregate amount of the Purchaser Indemnitees’ Losses under Section 8.2(a), any Damages and (ii) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds Five Hundred Thousand Dollars ($500,000) (the “Basket”), in which event Sellers shall be required to pay or be liable only for such aggregate Losses in excess of the Basket. The aggregate amount of all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.2(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that exceed Four Million Nine Hundred Fifty Thousand Dollars (i$4,950,000.00) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and . The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.2 shall not exceed the Purchase Price.
(iib) Purchaser shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.3(a) (I) unless such claim for indemnification individually or a series of related claims involves Losses in excess of the De Minimis Amount, it being understood that if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of the Seller Indemnitees Losses under Section 8.3(b) and (II) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, in which event Purchaser shall be required to pay or be liable only for such Damages exceeds $250,000 aggregate Losses in excess of the Basket. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 8.3(a) shall not exceed the Cap. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 8.3 shall not exceed the Purchase Price.
(c) Notwithstanding the “Indemnification Deductible”); and provided further that foregoing, the limitations set forth in the case first and second sentences of Section 8.4(a) and the first and second sentences of Section 8.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company representation or warranty in any of the Fundamental RepresentationRepresentations.
(d) Notwithstanding any provision to the contrary in this Agreement, in no event shall any Indemnified Party be entitled to double recovery under this Agreement. In particular, in the event any circumstances given rise to a Loss constitute a breach of more than one representation and warranty, obligation or covenant on the part of any Indemnifying Party, the Seller Indemnified Party shall only collectively be entitled to be indemnified once in respect of such Loss. Furthermore, the amount of any Loss for which indemnification is provided hereunder shall be directly liable net of (a) any amounts recovered (net of collection costs) by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third-party (other than this Agreement), (b) any insurance proceeds (net of collection costs) received by the Indemnified Party, or that the Indemnified Party is entitled to receive under existing insurance policies in connection with the relevant Loss (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Buyer Indemnified Persons Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent such Damages are not covered by of the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedindemnification payment made), up to (c) an amount equal to the Purchase Price actually received actual cash Tax savings or benefits realized by the Seller pursuant Indemnified Party that are directly attributable to this Agreement.
(b) Notwithstanding anything to such Loss and that are realized in the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenantssame taxable year as such Loss is incurred, (id) any accruals or reserves on the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this AgreementAbbreviated Financials, and (iie) the aggregate any amount for which a reserve or accrual is established in Closing Net Working Capital or which has otherwise been taken into account as a liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result purposes of the applicable breach calculation of a representation, warranty, covenant or agreement hereunder, (ii) the Purchase Price. Each Indemnified Party shall use commercially reasonable efforts to the extent actually recovered by a third party (including a Governmental Body) obtain such recoveries from an such insurance policies. Each Indemnified PersonParty shall take commercially reasonable steps to mitigate any Losses after such Indemnified Party becomes aware of any event which does, or (iii) in the event of Intentional Fraudcould reasonably be expected to, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect give rise to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLosses.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of this ARTICLE VIII, for purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of Losses suffered (but not whether a breach occurred) as a result of any Damages resulting therefrom, all qualifications or exception in breach of any representation or warranty relating warranty, no effect shall be given to or referring to the terms “material”, any “materiality”, ,” or “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Smith Micro Software, Inc.)
Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 6.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.02(a) exceeds $250,000 (the “Deductible”), criminal activity in which event Seller shall be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Deductible. The aggregate amount of all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i6.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 7,762,500 (the “Cap”) except, in the case of each of the Deductible and the Cap, to the extent that any such Loss arises from or relates to either criminal activity of the Company or Seller or an action or inaction that constitutes fraud, intentional misrepresentation or gross negligence (and no such Losses shall count towards satisfaction of the Deductible or the Cap) or a breach or alleged breach by the Company or Seller of a Fundamental Representation (and no such Losses shall count towards satisfaction of the Deductible or the Cap), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i6.03(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.03(a) exceeds $250,000 (the “Indemnification Deductible”); and provided further that , in which event Buyer shall be required to pay or be liable for Losses in excess of the Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 6.03(a) shall not exceed the Cap, except, in the case of each of the Deductible and the Cap, to the extent that any such Loss arises from or relates to a breach or alleged breach by Buyer of a Fundamental Representation (and no such Losses shall count towards satisfaction of the Deductible or the Cap).
(c) For purposes of this ARTICLE VI, any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) or the amount of Losses arising therefrom shall be determined without regard to any Damages resulting therefrommateriality, all qualifications Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Sunworks, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) Except (i) Seller Indemnitors shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds fifty thousand dollars ($50,000) (the “Tipping Basket”), in which event Seller Indemnitors shall be required to pay or be liable for all such Losses from Intentional Fraudthe first dollar, criminal activity or willful breaches and (ii) the aggregate amount of covenants, any Damages all Losses for which the Seller Indemnitors shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller 8.02(a), other than with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess a breach of the Indemnification Deductible up to an amount Fundamental Representations, shall not to exceed eight million dollars ($250,000 8,000,000) (the “Cap”)) and (iii) the aggregate amount of all Losses for which Seller Indemnitors shall be liable pursuant to a breach of the Fundamental Representations in Section 8.02(a) and Section 8.02(b) shall not exceed the Purchase Price, including the Migration Payment Amount, to the extent actually paid to Sellers.
(i) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Tipping Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 all Losses for which Buyer shall be liable pursuant to Section 8.03 shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsRepresentations.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any claim materiality, Material Adverse Effect or group of related claims shall only be entitled other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer Indemnified Person shall be entitled Each Party agrees to indemnification under this Agreement (i) in respect mitigate its respective Losses after becoming aware of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim as required by applicable Law.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (aThe indemnification provided for in Sections 7(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(iand 7(b) shall be satisfied solely by recovery by Buyer under subject to the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that following limitations:
(i) The aggregate of the Seller sum of indemnification obligations of the Sellers under Section 7(b) shall be directly liable limited to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of Common Stock constituting the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Escrow Amount; provided, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further however, that in the case of any inaccuracy in fraud or a breach of any Company Fundamental Representationthe representations and warranties set forth in Sections 3(a)(i), 3(a)(ii), 3(a)(iv), 4(a), 4(b),4(d) and 4(l)(iii) the indemnification obligations of the Sellers under Section 7(b) shall be limited to the value of the entire Purchase Price as of the Closing Date.
(ii) The aggregate of the sum of indemnification obligations of the Buyer under Section 7(c) shall be limited to the value of the Buyer Common Stock constituting the Escrow Amount, valued as of the Closing Date; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Sections 3(b)(i) - (v), the Seller indemnification obligations of the Buyer under Section 7(c) shall be directly liable limited to the Buyer Indemnified Persons entire value of the Purchase Price as of the Closing Date.
(iii) Notwithstanding anything to the extent contrary, with respect to any representation, warranty, undertaking, agreement or obligation of the Company, each Seller’s liability in respect of any Losses out of any breach or failure indemnified hereunder in respect thereof shall be limited to such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack Seller’s proportionate share of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal such Losses determined according to the amount of Purchase Price actually received by such Seller. The Buyer hereby covenants not to make a claim against any Seller for Losses with respect to any breach or failure in respect of any representation, warranty, undertaking, agreement or obligation of the Seller pursuant to this Agreement.
(b) Notwithstanding anything Company indemnified hereunder in excess of such Seller's proportionate share determined according to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches amount of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch Seller.
(civ) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims No Party shall only be entitled to recover once from any other Party hereunder for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or the same Loss more representations and/or warranties set forth in this Agreementthan once.
(ev) No Neither the Buyer Indemnified Person nor a Seller, as the case may be, shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount hereunder if Buyer or Seller, as applicable, had actual knowledge of any Damages resulting therefrom, all qualifications such breach on or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedbefore Closing.
(gvi) Notwithstanding anything to the contrary, with respect to any representation, warranty, undertaking, agreement or obligation of a particular Seller makes no representations hereunder, as opposed to the Company, the Seller making such representation or warranties regarding the amount warranty, or availability subject to such undertaking, agreement or obligation, shall be solely liable in respect of any net operating lossLosses indemnified hereunder in respect of any Losses arising out of any breach or failure. Buyer hereby covenants, capital losswith respect to any representation, tax credit carryover warranty, undertaking, agreement or obligation of a particular Seller hereunder, as opposed to the Company, not to make a claim against any Seller for Losses with respect to any breach or failure in respect thereof other Tax asset than against the particular Seller making such representation or liability of the Acquired Companies in warranty, or subject to such undertaking, agreement or obligation.
(vii) In no event shall Losses include any taxable period (special, punitive, indirect, incidental or portion thereof) beginning after the Closingconsequential damages whatsoever.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable The (i) maximum aggregate Liability pursuant to Section 7.2(a)(i10.1(a)(ii) shall be satisfied solely by recovery by Buyer under and 10.1(b)(ii), in the Indemnification Insurance Policy and Buyer will have no recourse against aggregate, of the Seller Selling Stockholders, other than with respect to any such Damagesthe Tier I Reps, whether or not shall in no event exceed the entirety value of any such Damages is covered by the consideration in the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), Escrow Account and (ii) maximum aggregate Liability pursuant to Article X of Buyer shall in no event exceed an amount equal to the Seller aggregate amount of the net proceeds of the Merger Consideration actually paid to the Selling Stockholders. The maximum aggregate Liability, in the aggregate, of the Selling Stockholders together as a group, to the Buyer Group shall have in no event exceed the aggregate amount of the Merger Consideration actually paid to the Selling Stockholders and each individual Selling Stockholder’s indemnification obligation shall be several and not joint and in no event shall any Selling Stockholder be liable for Damages, in the aggregate, in an amount greater than the amount of the Merger Consideration, taken as a dollar amount with each share of the stock portion thereof being valued at the Buyer Common Stock Per Share Price, to be received by such Selling Stockholder pursuant to this Agreement (including, as applicable, amounts received pursuant to the Employee Bonus Liquidity Plan). For the avoidance of doubt, all liability of the Selling Stockholders shall be several and not joint and the maximum Liability of any Selling Stockholder in respect of any particular item of Damage for which indemnification under is sought by any member of the Buyer Group in accordance with the provisions of this Agreement after the distribution of all of the Indemnification Escrow Shares and Indemnification Escrow Funds held by or for the account of such Selling Stockholder shall not exceed the result obtained by multiplying (A) the aggregate monetary amount of such item of Damage by (B) a fraction, the numerator of which is the aggregate Merger Consideration issued or paid to such Selling Stockholder pursuant to this Agreement (including pursuant to the Employee Bonus Liquidity Plan) and the denominator of which is the Merger Consideration.
(b) Except with respect to Damages arising out of a breach of the Tier I Reps and the representations and warranties contained in Sections 6.1, 6.2 and 6.6 (and the certificates referred to above insofar as they relate to such Sections) (the “Non-Threshold Damages”), notwithstanding anything contained herein to the contrary, no indemnification payment shall be made to the Buyer Group pursuant to Section 7.2(a)(i10.1(a)(ii) or 10.1(b)(ii) or to the Stockholder Group pursuant to Section 10.2(b), unless and until the aggregate amount of such Damages sustained by the Buyer Group or the Stockholder Group, as the case may be, exceeds on a cumulative basis $250,000 1,000,000 (the “Indemnification DeductibleThreshold”); and provided further , at which time the full aggregate amount of the Damages sustained (including the full amount of Damages that were aggregated in calculating whether the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts Threshold had been reached) by the Buyer Indemnified Persons to seek recovery thereunder Group or the Stockholder Group, as the case may be, shall be paid. For the avoidance of doubt, it is understood and comply with agreed among the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Parties that Non-Threshold Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed be taken into account in determining whether the aggregate Purchase Price actually received by the Seller pursuant to Threshold has been met for purposes of this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement10.3(b).
(c) The parties hereto expressly waive Each and every representation and warranty of the Company, Buyer, Merger Sub 1 or Merger Sub 2 contained in this Agreement or in any claim certificate delivered pursuant to consequentialSections 4.8(a)(ii), punitive 4.8(a)(iii) and 4.8(b)(iii) shall survive the Closing Date solely for purposes of this Article X until, and will expire upon, the conclusion of the Escrow Period, and no member of the Buyer Group or indirectthe Stockholder Group shall have any Liability whatsoever with respect to any such representations and warranties thereafter, lost profitsexcept with respect to claims made in accordance with the terms hereof prior to the conclusion of the Escrow Period. Notwithstanding the foregoing, diminution the Tier I Reps shall survive the Closing Date solely for purposes of this Article X until, and will expire on, the date that is the third anniversary of the Closing Date, other than with respect to claims made prior to such expiration. Each and every covenant contained in valuethis Agreement will survive the Closing Date until, special, exemplary or similar damages or any damages based on any type of multiple, exceptand will expire when, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach statute of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantslimitations has expired.
(d) An Indemnified Person entitled The obligations of each Party to indemnification by an Indemnifying Person indemnify, defend and hold harmless the other Party and other Persons pursuant to this Agreement (including, without limitation, this Article VII X) shall terminate (other than with respect to any claim or group claims made prior to expiration) with respect to Sections 10.1 and 10.2 upon the expiration of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties the applicable survival periods as set forth in this AgreementSection 10.3(c).
(e) No Notwithstanding anything contained in this Agreement, any amounts payable pursuant to the indemnification obligations hereunder shall be paid without duplication, and in no event shall any Party be indemnified under different provisions of this Agreement for the same Damages. Any amounts payable to the Buyer Group as Damages pursuant to this Agreement shall first be paid from the Escrow Account, to the extent available, and shall thereafter be paid directly (severally and not jointly) by the Selling Stockholders in accordance with the limitations set forth in Section 10.3(a). In calculating Damages for purposes of this Article X, any materiality qualifiers (including Material Adverse Effect) contained in the applicable representation and warranty shall be deemed to be deleted and shall be given no force or effect.
(f) The amount of any Damages with respect to which an Indemnified Person shall Party may be entitled to indemnification under this Agreement (i) in respect shall be net of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrominsurance proceeds or contributions from third parties actually recovered by such Indemnified Party in connection with such Damages; provided, all qualifications however, that notwithstanding the foregoing, no Indemnified Person shall have any obligation or exception in duty to seek to recover any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedsuch insurance proceeds of contributions from third parties.
(g) Seller makes no representations or warranties regarding the amount or availability of The Parties agree to treat any net operating loss, capital loss, tax credit carryover or other Tax asset or liability payment made pursuant to this Article X as an adjustment of the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingMerger Consideration for Tax and, if applicable, other purposes and to take no position contrary thereto on Tax Returns, unless otherwise required by Law.
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Certain Limitations. (a) Except for claims The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be subject to the limitations set forth in this Section 8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Intentional FraudCovered Purchaser Indemnity Claims exceeds one percent (1%) of the Purchase Price (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, criminal activity or willful breaches of covenants, any Damages for at which time the Seller shall be liable obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(b) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 7.2(a)(i8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the limitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall be satisfied solely by recovery by Buyer under become operative and effective only if and to the Indemnification Insurance Policy and Buyer will have no recourse against extent that the Seller with respect to any such Damages, whether or not the entirety aggregate amount of any such Damages is covered all Losses incurred by the Indemnification Insurance Policy or whether or not applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Indemnification Insurance Policy has expiredBasket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, been terminated or lapsed; provided that at which time the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(i) The maximum obligation of the Seller to provide indemnification in respect of Covered Purchaser Indemnity Claims shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(inot exceed ten percent (10%) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Purchase Price (the “CapCap Amount”), ) and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability maximum obligation of the Seller for all Damages under to provide indemnification in respect of Purchaser Indemnity Claims pursuant to Section 7.2(a8.02(a) and Section 8.02(b) shall not exceed the aggregate Purchase Price actually received by Price; provided, however, that the Seller limitations in this clause (ii) shall not apply to any Purchaser Indemnity Claim pursuant to this Agreement, Section 8.02(b) with respect to the Seller’s obligations and agreements in Section 1.05 and Section 1.06.
(d) (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the aggregate liability maximum obligation of Buyer for all Damages under the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 7.2(b8.03(a) and Section 8.03(b) shall not exceed the aggregate Purchase Price actually paid by Price; provided, however, that the Buyer pursuant to limitations in this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, clause (ii) shall not apply to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person any Seller Indemnity Claim pursuant to this Article VII Section 8.03(b) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Purchaser’s obligations and agreements in this AgreementSection 1.05, Section 1.06, Section 5.17(c), Section 5.19(e) and Section 5.19(f).
(e) No Buyer Indemnified Person The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or series of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $75,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Any Losses for which any Indemnitee would be entitled to indemnification under this Agreement Article VIII shall be reduced by (i) in respect any cash payments, setoffs or recoupment of any Damages to payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the extent such Damages were taken into account in Indemnitee under insurance policies, including the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, Title Policies) or (ii) for any Damages relating Tax Benefit actually realized in the taxable year of such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any matter amounts actually recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss.
(i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent that there arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is included required to be undertaken pursuant to any applicable Environmental Law or Order, (2) arises in the Interim Financial Statements a specific liability ordinary course of business out of repairs, modifications, maintenance activities, construction or reserve other capital projects, in each case relating to such matter.
the Assets or Transferred Business and conducted consistent with industry practices or (f3) For purposes of determining (i) whether there has been any misrepresentation or breach arises in response to a requirement of a representation Governmental Authority or warranty and a financing source of the Purchaser or its Affiliates; (iiB) any material change made by the amount Purchaser in the scope of use of any Damages Real Property (including the change resulting therefromfrom the decommissioning, all qualifications closure or exception in shutdown of any representation facility) such that the Real Property is no longer used for similar industrial purposes; or warranty relating to or referring to (C) any conduct by the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” Purchaser or any similar qualificationof its Affiliates, term employees, representatives or phrase shall be disregarded.
agents not consistent with that of a reasonable and prudent business person who owns the applicable Real Property (g) Seller makes no representations or warranties regarding without consideration of the amount or availability benefit of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of indemnification provided by the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingSeller).
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Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything contained herein to the contrary, criminal activity or willful breaches of covenants, any Damages for which the Seller Parties shall not be liable obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i9.1(a)(i) in excess of the Indemnification Deductible up $2,000,000. In addition, neither Party or their Affiliates shall not be obligated to an amount not indemnify any other Indemnified Party for aggregate Losses under this Agreement (including pursuant to exceed $250,000 (the “Cap”Sections 9.1(a)(ii), and (ii9.1(a)(iii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”or 6.9(e); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to in excess of an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementPrice.
(b) Notwithstanding anything contained herein to the contrary hereincontrary, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenantsthe Seller Parties shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement pursuant to Section 9.1(a)(i), (ix) with respect to any individual Purchaser Loss or series of related Purchaser Losses of less than $100,000 (the “Minimum Amount”) and (y) unless and until the aggregate liability of Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Seller for all Damages under Section 7.2(aMinimum Amount) subject to such indemnification collectively exceed $750,000 (the “Threshold”), whereupon such indemnification shall not exceed the aggregate Purchase Price actually received be made by the Seller pursuant Parties only with respect to this Agreement, and the amount of such Purchaser Losses (iiexcluding individual Purchaser Losses or related Purchaser Losses less than the Minimum Amount) in excess of the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementThreshold.
(c) The parties hereto expressly waive any claim to consequentialrepresentations and warranties of the Seller Parties and Purchaser contained in Article IV and Article V, punitive respectively, of this Agreement shall survive the Closing until the first anniversary of the Closing Date. The covenants and agreements contained in this Agreement shall survive the Closing until the date or indirectdates explicitly specified therein or, lost profitsif not so specified, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in until the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result expiration of the applicable breach statute of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII limitations with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementthe matters contained therein.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”. Notwithstanding any other provision of this Agreement, the indemnification provided for in Section 7.2 and Section 7.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Buyer Indemnified Parties shall not be liable entitled to indemnification pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i7.2(a) unless and until the aggregate amount of Losses with respect to such Damages Buyer’s Indemnifiable Claims exceeds $250,000 1,500,000.00 (the “Indemnification Deductible”), in which event the indemnity provided for in Section 7.2(a) shall apply only to the amount of Losses that exceeds the Deductible; and provided further provided, that in the case of Deductible shall not apply to Losses arising from any inaccuracy in or breach of the Fundamental Representations or the Tax Representation. Without limiting the generality of the foregoing, any Company Fundamental Representation, indemnification claim involving Losses of less than $25,000.00 shall not be entitled to indemnification under Section 7.2(a) and shall not be counted toward satisfaction of the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementDeductible.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches The maximum aggregate Liability of covenants, (i) the aggregate liability of the Seller for all Damages under the Buyer Indemnified Parties’ Losses with respect to Buyer’s Indemnifiable Claims pursuant to Section 7.2(a) shall not exceed an amount equal to $25,000,000.00; provided, that the foregoing limitation shall not apply to Losses arising from any inaccuracy in or breach of the Fundamental Representations or the Tax Representation.
(c) The Buyer Indemnified Parties shall not be entitled to indemnification pursuant to Section 7.2(b) unless the aggregate Purchase Price actually received amount of Losses with respect to such Buyer’s Indemnifiable Claims exceeds $2,000,000.00 (the “HC Deductible”), in which event the indemnity provided for in Section 7.2(b) shall apply only to the amount of Losses that exceeds the HC Deductible. The HC Deductible shall be determined by taking into account (i) all amounts paid by any Buyer Indemnified Party in respect of the Seller retention or deductible required pursuant to this Agreementthe Representation and Warranty Policy for all claims made thereunder whether or not such claims specifically include claims for criminal Liability, and criminal penalties or criminal fines plus (ii) all Losses of any Buyer Indemnified Party that in the absence of the HC Deductible would be recoverable by any Buyer Indemnified Party pursuant to Section 7.2(b).
(d) The maximum aggregate liability Liability of Seller for the Buyer for all Damages under Indemnified Parties’ Losses with respect to Buyer’s Indemnifiable Claims pursuant to Section 7.2(b) shall not exceed an amount equal to $30,000,000.00 which shall be determined by taking into account (i) all amounts recovered by any Buyer Indemnified Party pursuant to the aggregate Purchase Price actually Representation and Warranty Policy for all claims made thereunder whether or not such claims specifically include claims for criminal Liability, criminal penalties or criminal fines plus (ii) all amounts paid by the Buyer Seller pursuant to this AgreementSection 7.2(b).
(ce) The parties hereto expressly waive Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any claim Loss shall be limited to consequential, punitive the amount of any Liability or indirect, lost profits, diminution in value, special, exemplary or similar damages damage that remains after deducting therefrom any insurance proceeds (other than proceeds from the Representation and Warranty Policy to be obtained by Buyer at Closing) or any damages based on any type of multipleindemnity, exceptcontribution or other similar payment, in each case, actually received by the Indemnified Party (i) in the event or any of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (iits Affiliates) in respect of any Damages such claim (net of premium increases and collection costs relating thereto). The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar Contracts for any Losses (it being agreed that if insurance or indemnification, contribution or similar proceeds in respect of such Losses are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent such Damages were taken into account in the calculation of the Final Closing Working Capitallesser of the indemnification payment made by the Indemnifying Party or the excess of such payments over Losses sustained by the Indemnified Party); provided, however, that no Indemnified Party shall have an obligation to seek recoveries against a Person that was a customer of Buyer or a member of the Company Indebtedness or Company Transaction Expenses, or Group within the one (ii1) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating year period prior to such matterclaim.
(f) For purposes of determining (i) whether there has been any misrepresentation Payments by an Indemnifying Party pursuant to Section 7.2 or breach of a representation or warranty and (ii) the amount Section 7.3 in respect of any Damages resulting therefromLoss shall be reduced by an amount equal to any net Tax benefit realized as a result of such Loss by the Indemnified Party in the tax year the Loss is incurred. For this purpose, all qualifications the party entitled to indemnification shall be deemed to recognize a net Tax benefit with respect to a taxable year if, and to the extent that, the hypothetical Tax Liability, if any, of the Indemnified Party (or exception any affiliated, combined, consolidated or unitary group of which the Indemnified Party is a member) for such taxable year, calculated without taking into account any Tax items attributable to the indemnifiable Loss (and, for the avoidance of doubt, without taking into account any net operating loss carryovers or carrybacks attributable to an indemnifiable Loss incurred in any representation prior or warranty relating to or referring to subsequent taxable year), exceeds the terms “material”actual Tax liability, “materiality”if any, “Material Adverse Effect”, “in all material respects” of the Indemnified Party (or any similar qualificationaffiliated, term combined, consolidated or phrase shall be disregardedunitary group of which the Indemnified Party is a member) for such taxable year, calculated by taking into account any Tax items attributable to such indemnifiable Loss (including, for the avoidance of doubt, any net operating loss carryovers or carrybacks attributable to a indemnifiable Loss incurred in any prior or subsequent taxable year (determined by treating such indemnifiable Loss as the last item claimed in any prior or subsequent taxable year)).
(g) Seller makes In no representations event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, special or warranties regarding indirect damages, or consequential damages which are not reasonably forseeable at the amount time of breach or availability alleged breach, except to the extent paid or required to be paid to a third party.
(h) The Buyer Indemnified Parties shall not be entitled to indemnification with respect to any amounts that have been taken into account in connection with determining the Purchase Price, including, without limitation, amounts taken into account in determining the Closing Date Working Capital.
(i) The right of a Buyer Indemnified Party to indemnification, reimbursement or other remedy for the breach or inaccuracy of any net operating lossrepresentation or warranty made by Seller shall not be affected by any investigation conducted with respect to, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period knowledge acquired (or portion thereofcapable of being acquired) beginning after at any time, with respect to the Closingaccuracy or inaccuracy of or compliance with any such representations and warranties.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 7.1 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Purchaser Indemnitees for indemnification under Section 7.2(a)(i7.1(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 7.1(a) exceeds $250,000 (the “Indemnification DeductibleBasket”); and provided further that , in the case of any inaccuracy in or breach of any Company Fundamental Representation, the which event Seller shall be directly required to pay or be liable for the portion of such Losses solely in excess of the amount of the Basket (which shall serve as a deductible), subject to the Buyer Indemnified Persons other limitations set forth herein.
(b) Subject to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack provisions of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for thereinSection 7.7(d), the coverage limit being Purchaser Indemnitees shall not be indemnified and Seller shall have no liability (i) pursuant to Section 7.1(a) with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to Section 7.1(a) has exceeded or coverage being deniedan amount equal to 25% of the Transaction Consideration; (ii) pursuant to Section 7.1(b), up Section 7.1(c), Section 7.1(e) or Section 7.1(f) with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to such Sections has exceeded an amount equal to 50% of the Transaction Consideration; (iii) pursuant to Section 7.1(d) with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to Section 7.1(d) has exceeded an amount equal to the Purchase Price actually Transaction Consideration; or (iv) for breaches of any Fundamental Representation or claims for fraud with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received by indemnification for breaches of any Fundamental Representations or claims for fraud has exceeded an amount equal to the Seller pursuant to this AgreementTransaction Consideration.
(bc) Notwithstanding anything to the contrary set forth herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under limitations set forth in Section 7.2(a7.7(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate limit liability of Buyer any Indemnifying Party for all Damages breaches of any Fundamental Representations or Seller’s representation in the first sentence of Section 3.4 (Indebtedness) or claims for fraud, or for indemnification claims under Section 7.2(b7.1(b), Section 7.1(c), Section 7.1(d), Section 7.1(e) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 7.1(f).
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to Notwithstanding any claim or group provision of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capitalcontrary, Company Indebtedness Purchaser agrees and acknowledges that Seller’s aggregate liability under ARTICLE VII or Company Transaction Expenses, or (ii) otherwise for any Damages relating to any matter Losses shall not exceed an amount equal to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterTransaction Consideration.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Parent Indemnitees shall not be liable pursuant entitled to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i6.1(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.1(a) exceeds $250,000 75,000 (the “Indemnification Deductible“ Basket”); and provided further that , in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Parent Indemnitees shall be directly liable entitled to recover only the Buyer Indemnified Persons to amount of all such Losses in excess of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementBasket.
(b) Notwithstanding anything The Shareholder Indemnitees shall not be entitled to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (iindemnification under Section 6.2(a) until the aggregate liability amount of all Losses in respect of indemnification under Section 6.2(a) exceeds the Basket, in which event the Shareholder Indemnitees shall be entitled to recover only the amount of all such Losses in excess of the Seller for all Damages under Section 7.2(a) Basket. The Shareholder Indemnitees shall not exceed be indemnified pursuant to Section 6.2(a) with respect to any Loss if the aggregate Purchase Price actually amount of all Losses for which the Shareholder Indemnitees have received by the Seller indemnification pursuant to this Agreement, and (iiSection 6.2(a) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementhas exceeded $2,000,000.
(c) The parties hereto expressly waive limitations set forth in Sections 6.5(a) and 6.5(b) shall not limit the Liability of any claim to consequential, punitive Indemnifying Party for misrepresentations or indirect, lost profits, diminution in value, special, exemplary breaches of Transactional Reps or similar damages or any damages based on any type of multiple, except, in each casefraud. Notwithstanding the foregoing, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims Parent Indemnitees shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall not be entitled to indemnification under this Agreement with respect to any Loss if the aggregate amount of all Losses for which the Parent Indemnitees have received indemnification pursuant to this Agreement, including on account of fraud, has exceeded $14,800,000 and (ii) the Shareholder Indemnitees shall not be entitled to indemnification under this Agreement with respect to any Loss if the aggregate amount of all Losses for which the Shareholder Indemnitees have received indemnification pursuant to this Agreement, including on account of fraud, has exceeded $14,800,000.
(d) There shall be no right of contribution or other recourse against the Company or the Subsidiaries or their respective directors, officers, employees, Affiliates, agents, attorneys, representatives, assigns or successors for any claims asserted by Parent Indemnitees, it being acknowledged and agreed that the covenants and agreements of the Company are solely for the benefit of Parent Indemnitees.
(e) The amount of any Losses for which indemnification is provided under this Article VI shall be net of any amounts recovered by the Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnified Party or any of such Indemnified Party’s Affiliates is a party or has rights (collectively, “Alternative Arrangements”) with respect to such Losses. The Indemnified Party shall seek full recovery under all Alternative Arrangements covering any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that any proceeds or other recovery is received by an Indemnified Party under any Alternative Arrangement with respect to any Losses for which any such Person has already been indemnified hereunder then the Indemnified Party shall promptly reimburse to the Indemnifying Party (i) in respect of any Damages to Escrow Shares or cash (at the extent such Damages were taken into account in the calculation election of the Final Closing Working CapitalIndemnified Party) having an aggregate value equal to such recovery (the number of Escrow Shares to be reimbursed shall be calculated using the same Indemnity Value as was used for the satisfaction of such indemnification claim and the amount of cash to be reimbursed shall be equal to such Indemnity Value of such Escrow Shares that the Indemnified Party has the option to reimburse), Company Indebtedness or Company Transaction Expensesif such indemnification claim was initially satisfied in Escrow Shares, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating cash having an aggregate value equal to such matterrecovery if such indemnification claim was initially satisfied in cash.
(f) For purposes Notwithstanding anything to the contrary in this Agreement, Losses shall be limited to actual and direct Losses. No Party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages of determining (i) whether there has been such other Person, including any misrepresentation consequential, incidental, indirect, special or punitive damages relating to loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof and, in particular, no “multiple of a representation profits” or warranty and (ii) “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedLosses.
(g) Seller makes In the event an Indemnified Party fails to take all commercially reasonable measures to mitigate any indemnifiable Losses, the Indemnifying Party shall have no representations or warranties regarding liability for any portion of such Losses that reasonably could have been avoided had the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingIndemnified Party made such efforts.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything in this Agreement to the contrary, criminal activity neither party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller other party with respect to any such Damagesclaim for any breach of a representation or warranty, whether or not for the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to covenant contained in this Agreement, unless notice of the claim is given within the relevant survival period specified in Section 10.1.
(b) Notwithstanding anything in this Agreement to the contrary hereincontrary, but except for Damages resulting from Intentional Fraudas otherwise provided in this subsection (b) and Schedule 10.5, criminal activity or willful breaches Sellers shall not be liable to Buyer in respect of covenants, any indemnification hereunder except to the extent that (i) the aggregate liability amount of losses of Buyer exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Seller for all Damages under Section 7.2(aEnvironmental Threshold Amount (such excess being the "Excess Amount") shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability amount of losses of Buyer for all Damages under Section 7.2(bis less than the excess of Fifty Million Dollars) shall not exceed the aggregate Purchase Price actually paid ($50,000,000) over any amounts expended by the Buyer pursuant to Section 6.15, or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this AgreementSection 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein.
(c) The parties hereto expressly waive Notwithstanding any claim other provision of this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of shall a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent for such Damages were taken into account in the calculation party's consequential or punitive damages, regardless of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim for indemnification hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The indemnification provided for in Section 9.02Section 9.03 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The Indemnified Party shall take reasonable steps to mitigate any Loss to the extent required by Law.
(b) The maximum aggregate amount of covenants, any Damages all Losses for which the Seller Shareholders shall be liable pursuant to Section 7.2(a)(i) 9.02 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by Total Consideration Cap, less the Seller pursuant aggregate amount of any Closing Merger Consideration or Earnout Consideration that has already been paid and/or delivered (in the case of Parent Merger Shares or Parent Earnout Shares) to this Agreementthe Equityholders and Pre-Closing Noteholders as of the applicable date.
(bc) Notwithstanding anything For the avoidance of doubt, none of the limitations set forth herein shall apply to any claim for fraud, intentional misrepresentation or willful misconduct.
(d) No Shareholder Indemnitee shall be entitled to recover indemnifiable Losses pursuant to Section 9.04(a) unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Shareholder Indemnitees exceeds $500,000, after which, subject to the contrary hereinterms of this ARTICLE IX, except the Shareholder Indemnitees shall be entitled to recover for Damages resulting all indemnifiable Losses pursuant to Section 9.04(a) from Intentional Fraudthe first dollar of such Losses.
(e) The maximum aggregate amount of all Losses for which Parent, criminal activity Merger Sub or willful breaches the Surviving Corporation shall be liable herein shall not exceed the Total Consideration Cap; provided, that, in no event shall Parent be liable for any amounts under this Agreement in excess of covenants, the difference between (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this AgreementTotal Consideration Cap, and less (ii) the aggregate liability amount of Buyer for all Damages under Section 7.2(b) shall not exceed Closing Merger Consideration, Earnout Consideration and any indemnification payments or other Losses paid or payable by Parent, Merger Sub and the aggregate Purchase Price actually paid by Surviving Corporation as of the Buyer pursuant to this Agreementapplicable date.
(cf) With respect to each representation or warranty contained in this Agreement or in any certificate delivered pursuant hereto that is subject to a “materiality,” “material,” “Material Adverse Effect,” “Parent Material Adverse Effect,” “in all material respects” qualification, any such qualification shall be disregarded for calculating the amount of Losses subject to indemnification hereunder and for purposes of determining whether a breach of or inaccuracy in such representation or warranty has occurred. For purposes of clarity, nothing in this Section 9.05(f) is intended to alter any defined term herein.
(g) The parties hereto expressly waive Shareholders shall not be obligated to indemnify any claim Parent Indemnitee with respect to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Loss to the extent that the amount of such diminution of value is the probable Loss was reflected as a current liability or reserve or as Indebtedness or Transaction Expenses and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account subtracted in the calculation of the Final Closing Working CapitalMerger Consideration or Net Adjustment Amount as finally determined pursuant to Section 2.11(b) and Section 2.11(f)(v), Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterrespectively.
(fh) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds under any Damages resulting therefrominsurance policy paid for by the Shareholders (after deducting related costs and expenses, all qualifications or exception including any deductible amount and any resultant increase in any representation or warranty relating to or referring to insurance premiums) actually received by the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability Indemnified Party as a result of the Acquired Companies in any taxable period (or portion thereof) beginning after Losses for which the ClosingIndemnified Party is seeking indemnification.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant Subject to Section 7.2(a)(i) 2.06, Sellers shall not be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Indemnitees for indemnification under Section 8.02(a) (i) for any Loss until the amount of such Damages pursuant Loss exceeds $1,000 in which event Sellers shall be required to Section 7.2(a)(i) in excess of pay or be liable for the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)entire such Loss, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 8.02(a) exceeds $250,000 100,000, in the aggregate (the “Indemnification DeductibleBaskets”); and provided further that , in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar. Notwithstanding anything to the contrary contained in the case foregoing, Sellers shall not be liable to Buyer for any Losses in an aggregate amount in excess of $1,500,000 except that such limitation shall not apply to the extent that it is exceeded on account of (A) actual fraud by Sellers or the Individual Guarantors, (B) the failure of Sellers to convey to Buyer good title free from Encumbrances as to the LLC Interests other than Permitted Interest Encumbrances, and (C) any matter disclosed on Sections 3.16(a) or 3.16(d) of the Disclosure Schedule or any inaccuracy in or breach of any Company Fundamental Representationthe representations set forth in Sections 3.16(a) or 3.16(d) above (it being understood, however, that the Seller maximum aggregate amount for which the Buyer Indemnitees shall be directly liable entitled to indemnification from any Seller pursuant to this Article VIII shall in no event exceed the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack portion of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementsuch Seller).
(b) Buyer shall not be liable to Seller Indemnitees for indemnification under Section 8.03(a) until the individual amount of any Loss and the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Baskets, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. Notwithstanding anything to the contrary hereinin the foregoing, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) Buyer shall not exceed the aggregate Purchase Price actually received by the Seller pursuant be liable to this Agreement, and (ii) the aggregate liability Sellers for any amount in excess of Buyer for all Damages under Section 7.2(b) $1,500,000 except that such limitation shall not exceed apply to the aggregate Purchase Price actually paid extent that it is exceeded on account of a claim involving actual fraud by the Buyer pursuant to this AgreementBuyer.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once Solely for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) calculating the amount of any Damages Loss resulting therefrom, all qualifications from a breach of the representations or exception in any representation or warranty relating to or referring to the terms “material”warranties set forth herein, “materiality”, “” and Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase Effect qualifications shall be disregarded, but such qualifications shall not, for the avoidance of doubt, be disregarded for purposes of determining whether a breach has occurred.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Good Times Restaurants Inc)
Certain Limitations. (a) Except The Seller Parties shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 7.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.2(a) exceeds Thirty Thousand Dollars ($30,000) (the “Basket”), criminal activity or willful breaches in which event the Seller Parties shall be liable for all such Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the Value of the Acquired Shares (the “Cap”); provided, however, that the aggregate Purchase Price actually received by amount of all Losses for which the Seller Parties shall be liable pursuant to this Agreement, and Section 7.2(a) (ii) except in the aggregate liability case of Buyer for all Damages under Section 7.2(bfraud) shall not exceed the aggregate Purchase Price actually paid by Price.
(b) The Buyer Indemnitees will seek to recover on indemnification claims first from the Holdback Shares valued at the Per Share Value and, only if and to the extent such funds are insufficient, from the Seller Parties; provided, however, that the foregoing shall not preclude a Buyer pursuant Indemnitee from filing an Action against one or more Seller Parties to this Agreementpreserve its legal rights and remedies.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value No Shareholder shall be liable to the extent that such diminution Buyer Indemnitees for indemnification under Section 7.2(a) by reason of value is the probable and reasonably foreseeable result of the applicable an inaccuracy in or breach of a representation, warranty, covenant or agreement hereunder, (ii) to representation and warranty of Seller for more than such Shareholders pro rata share of the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsLoss.
(d) An Indemnified Person entitled The amount of Losses on account of which the Seller Parties would otherwise be required to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No indemnify the Buyer Indemnified Person Indemnitees shall be entitled to indemnification under this Agreement reduced by any insurance proceeds (i) in respect net of any Damages to deductibles or co-payments and reasonable attorney’s fees and other expenses actually incurred by the extent Buyer Indemnitees in connection with such Damages were taken into account in recovery) received by the calculation Buyer Indemnitees from any insurance provided by any insurance company not Affiliated therewith and, for the avoidance of the Final Closing Working Capitaldoubt, Company Indebtedness or Company Transaction Expensesexcluding any self-insurance, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover risk management program or other Tax asset or liability of the Acquired Companies funds set aside by such Person in any taxable period (or portion thereof) beginning after the Closingconnection therewith.
Appears in 1 contract
Sources: Asset Purchase and Reorganization Agreement (Guardion Health Sciences, Inc.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the 9.3.1 Seller shall not be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by indemnify Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.1.1 (excluding any such Damages, whether or not the entirety claim with respect to a breach of any such Damages is covered by Seller Fundamental Representation with respect to which the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that limits set forth in clauses (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) shall not apply): (i) for any Loss (or Losses relating to the Seller shall have no liability for indemnification under Section 7.2(a)(isame facts and circumstances) if the amount of such Loss is less than $100,000 (a “De Minimis Loss”); (ii) unless and until the aggregate amount of all such Damages Losses (excluding any De Minimis Loss) exceeds $250,000 (the “Indemnification Deductible”); and provided further that Deductible Amount, in the which case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall only be directly liable to responsible for the Buyer Indemnified Persons to amount of such Losses in excess of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible Deductible Amount; provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) that the aggregate liability of the Seller for all Damages to Buyer Indemnitees under Section 7.2(a9.1.1 (excluding liability with respect to any breach of any Seller Fundamental Representation) shall not in no event exceed the Warranty Cap. The aggregate Purchase Price actually received by liability of Seller to Buyer Indemnitees under Section 9.1 shall in no event exceed the Cap.
9.3.2 Buyer shall not be required to indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to this Agreement, Section 9.2.1 (excluding any such claim with respect to a breach of any Buyer Fundamental Representation with respect to which the limits set forth in clauses (i) and (ii) shall not apply): (i) for any De Minimis Loss; and (ii) unless and until the aggregate amount of all such Losses (excluding any De Minimis Loss) exceeds the Deductible Amount, in which case Buyer shall only be responsible for the amount of such Losses in excess of the Deductible Amount; provided that the aggregate liability of Buyer for all Damages to Seller under Section 7.2(b9.2.1 (excluding liability with respect to any Buyer Fundamental Representation) shall not in no event exceed the Warranty Cap. The aggregate Purchase Price actually paid by liability of Buyer to Seller Indemnitees under Section 9.2 shall in no event exceed the Buyer pursuant to this AgreementCap.
(c) The parties hereto expressly waive 9.3.3 Buyer shall not be entitled to indemnification for those portions of any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, Losses: (i) other than in connection with Section 9.1.3, reserved or accrued on the event financial statements or master book referred to in Section 3.7 in a manner that permits reasonable determination as to the portion of diminution such Loss reserved or accrued; (ii) that have arisen as a result of value any act or omission by Buyer or any of its Affiliates or Representatives on or after the Closing Date (including resulting from any change in their respective accounting principles, practices or methodologies and any Losses arising from any breach of its obligations under this Agreement), provided that the foregoing shall not preclude indemnification under Section 9.1.3 except to the extent that such diminution any Covered Taxes that would otherwise have been indemnifiable thereunder result from an action of value is the probable and reasonably foreseeable result Buyer that caused Taxes (other than Taxes described in clause (viii) of the applicable breach definition of Covered Taxes) that otherwise would have been in respect of a representation, warranty, covenant tax period beginning after the Closing Date (or agreement hereunder, (iithe portion of the Straddle Period beginning after the Closing Date) to the extent actually recovered be a Covered Tax (except if such action, in Buyers’ reasonable discretion, was required by a third party (including a Governmental Body) from an Indemnified Person, applicable Law); or (iii) that were taken into account (a) in respect of Taxes, in the event calculation of Intentional Fraud, criminal activity Quasi-Indebtedness or willful breaches Working Capital for purposes of covenants.
determining the Final Purchase Price (d) An Indemnified Person entitled except to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute the extent resulting from a breach of two Section 5.1.1(e)) or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (ib) in respect of any Damages other amount, in any adjustment to the extent such Damages were taken into account in Final Purchase Price pursuant to Section 2.4. For the calculation avoidance of the Final Closing Working Capitaldoubt, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase no Indemnified Party shall be disregardedcompensated more than once for the same Loss.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims with respect to Losses arising from Intentional Fraud, criminal activity as a result of fraud or willful breaches of covenants, any Damages concealment (for which the Seller limitations set forth in this Section 7.4 shall be liable pursuant to not apply), the indemnification provided for in Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy 7.2 and Buyer will have no recourse against the Seller liability with respect to any such Damages, whether or Buyer Warranty Claim shall be subject to the following limitations:
(a) The Seller Parties shall not the entirety be liable in respect of any such Damages Buyer Warranty Claim (other than a breach of the Fundamental Warranties) to the extent that the matter giving rise to the Buyer Warranty Claim is covered by Disclosed in the Indemnification Insurance Policy Data Room or whether or the Disclosure Schedules.
(b) The Seller Parties shall not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i) unless and in respect of any Buyer Warranty Claim until the aggregate amount of such Damages all Losses in respect of indemnification in respect of any Buyer Warranty Claim (together with any connected Buyer Warranty Claim) exceeds $250,000 £40,000 (the “Indemnification Deductible”), in which event the Seller Parties shall be liable for the whole amount of the Losses and not just the amount in excess of the Deductible; provided, however, that the Deductible shall not apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and provided further that Section 7.2(b). For the purposes of this Section 7.4(b), a Buyer Warranty Claim is connected with another Buyer Warranty Claim if it arises from the same facts, events or circumstances.
(c) The aggregate amount of all Losses for which the Seller Parties shall be liable in the case respect of any inaccuracy Buyer Warranty Claim shall not exceed 70% of the Purchase Price actually paid (the “General Cap”); provided, however, that the General Cap shall not apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and Section 7.2(b).
(d) The aggregate amount of all Losses for which the Seller Parties shall be liable in or breach respect of any Company Buyer Warranty Claim including with respect to any claims for breaches of the Fundamental RepresentationWarranties, or claims under Section 7.2(a) (but for the avoidance of doubt excluding any claims pursuant to Section 7.2(b)) shall not exceed the Purchase Price.
(e) Payments by the Seller Parties in respect of any Buyer Warranty Claim shall be directly liable limited to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for amount of any reason liability or damage that remains after deducting therefrom any insurance proceeds or other than the lack of good faith efforts payments actually received by the Buyer Indemnified Persons Parties from a third party (net of any deductible amounts) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to seek recover under insurance policies or indemnity, contribution or other similar agreements for any Losses but seeking recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal from any insurance policies shall not be a pre-condition to the Purchase Price actually received by Buyer seeking recovery from the Seller pursuant to Parties under this Agreement.
(bf) Each party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including using commercially reasonable endeavors to incur costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses. The Buyer shall not be entitled to recover any Loss more than once under this Agreement or any Transaction Document.
(g) Notwithstanding anything to the contrary hereincontained in this Agreement, except to the maximum extent permitted by applicable Law, in no event shall either party hereto be liable in connection with this Agreement, the negotiation of this Agreement or the transactions contemplated hereby for Damages special, indirect, incidental, exemplary or punitive damages whether or not caused by or resulting from Intentional Fraud, criminal activity the actions of such party or willful breaches the breach of its covenants, agreements, representations or warranties hereunder and whether or not based on or in warranty, contract, tort (including negligence or strict liability) or otherwise.
(h) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim results from or is increased by (and if increased, only to the extent that it is increased by):
(i) any act or omission before Closing carried out at the aggregate written request of the Buyer or any member of the Buyer’s Representatives; or
(ii) any act, event, occurrence or omission of the Buyer after the Closing Date.
(i) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim constitutes a contingent liability or relates to a liability which is not capable of being quantified until such liability becomes an actual liability of the Seller for all Damages under Section 7.2(a) Party or becomes capable of being quantified. This paragraph shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by relieve the Buyer pursuant from any obligation to this Agreementgive notice in respect of any matter which constitutes a contingent liability on the Buyer or relates to a liability which is not capable of being quantified.
(cj) The parties hereto expressly waive Seller Parties shall not be liable for any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Buyer Warranty Claim if and to the extent that the Buyer had actual knowledge at the Closing of such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representationSeller Warranty and that such breach would enable it to bring a Buyer Warranty Claim. For this purpose, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims Buyer shall only be entitled deemed to recover once for such claim or group have the knowledge of related claims notwithstanding that such claim or group anything of related claims may constitute a breach which ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ have actual knowledge as at the date of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wd 40 Co)
Certain Limitations. The party making a claim under this ARTICLE VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this ARTICLE VIII shall be subject to the following limitations:
(a) Except Subject to the next two sentences, the sole source of indemnification of Buyer pursuant to this ARTICLE VIII shall (after satisfying the Mini-Basket and the Threshold, as and if applicable) be paid from the Indemnity Escrow Account (and only to the extent of the Indemnity Escrow Amount and only to the extent such amount remains in the Indemnity Escrow Account). Notwithstanding the foregoing, but only to the extent such Losses involve a claim under Section 8.2(b) or a breach of a Fundamental Representation and exceed the amount of funds remaining in the Indemnity Escrow Account, Buyer may seek indemnification from Seller for claims arising such Losses. Notwithstanding anything in this Agreement to the contrary, in no event shall such recovery from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller exceed the Purchase Price.
(b) Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i8.2(a) (other than with respect to breaches of Fundamental Representations or in the case of Seller’s Fraud) until the aggregate amount of all Losses in respect of indemnification thereunder exceeds [*] (the “Threshold”), in which event Seller shall be required to pay or be liable for Losses from the first dollar. No individual claim by Buyer shall be asserted under Section 8.2 unless and until the aggregate amount of Losses that would be payable pursuant to such Damages claim (or series of related claims) exceeds $250,000 an amount equal to [*] (the “Indemnification DeductibleMini-Basket”) (it being understood that any such individual claims (or series of related claims) for amounts less than the Mini-Basket shall be ignored in determining whether the Threshold has been exceeded and thereafter); and provided further that . Seller’s maximum liability hereunder for any indemnification claims under Section 8.2(a) (other than with respect to breaches of Fundamental Representations or in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Seller’s Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not not, when aggregated with all other indemnification obligations hereunder, exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement[*].
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution Notwithstanding anything in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value this Agreement to the extent contrary, Buyer understands, acknowledges and agrees that such diminution Seller’s maximum liability hereunder for any indemnification claims under Section 8.2 shall not, when aggregated with all other indemnification obligations hereunder, exceed the Purchase Price. Solely for purposes of value is determining the probable and reasonably foreseeable result amount of the applicable any Losses or whether any breach of representation and warranty has occurred that are the subject matter of a representationclaim for indemnification, warranty, covenant or agreement hereunder, (ii) each representation and warranty in this Agreement will be read without regard and without giving effect to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, term “material” or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants“Material Adverse Effect”.
(d) An Indemnified Person entitled to indemnification Payments by an Indemnifying Person Party pursuant to this Article VII ARTICLE VIII in respect of any Loss shall be limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other payment or reimbursement received or reasonably expected to be received by the Indemnified Party (or the Acquired Companies) in respect of or in connection with any such Loss, less reasonable and documented deductions for costs incurred in, and premium increases directly arising from, obtaining such proceeds or recoveries. Each Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent it would if such Loss were not subject to indemnification hereunder, and each Indemnified Party shall use commercially reasonable efforts to recover under indemnity, contribution or other similar agreements, or collect other reimbursements, for any Losses prior to seeking indemnification under this Agreement. In the event that any such proceeds or recoveries are received by an Indemnified Party (or any of its Affiliates) with respect to any claim Losses after an Indemnifying Party has made a payment to an Indemnified Party with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or group of related claims shall only be entitled recoveries, less reasonable and documented deductions for direct costs incurred in obtaining such proceeds and recoveries, up to recover once for the amount the Indemnifying Party has paid with respect to such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLosses.
(e) No Buyer Each Indemnified Person Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be entitled reasonably expected to, or does, give rise thereto, including incurring costs only to indemnification the minimum extent necessary to remedy the breach or set of facts that gives rise to such Loss.
(f) Seller shall not be liable under this Agreement ARTICLE VIII for any Losses (i) in respect and the amount of any Damages such Losses shall not be counted toward the Threshold or the Mini-Basket) to the extent that any such Damages were Loss (or applicable portion thereof) is caused or increased by an action or inaction by Buyer or any of its Affiliates (including the Acquired Companies) on or after the Closing Date, except for actions or inactions which Buyer and/or its Affiliates (including any Acquired Company) are required to take or otherwise refrain from under applicable Law.
(g) Notwithstanding anything contained elsewhere in this Agreement, the specific amounts that are taken into account in the calculation determination of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating Statement pursuant to ARTICLE II are subject solely to the adjustment provisions set forth in ARTICLE II and accordingly shall not be subject to any matter claim by any Indemnified Party for indemnification pursuant to this ARTICLE VIII. Further, the Indemnified Party shall not be entitled to more than one recovery with respect to the extent that there is included in same Loss, so as to avoid duplication or “double counting” of the Interim Financial Statements a specific liability or reserve relating to such mattersame Loss.
(fh) For purposes Except with respect to Buyer’s recourse to the Indemnity Escrow Amount as a source of determining recovery for indemnifiable Losses pursuant to this ARTICLE VIII, the parties hereto agree that Buyer shall not have any rights to set-off any Loss it may have against any amount due to Seller.
(i) whether there has been any misrepresentation If an Indemnified Party is entitled to indemnification under more than one clause or breach subclause of a representation or warranty and (ii) the amount of any Damages resulting therefromthis Agreement with respect to Losses, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase then such Indemnified Party shall be disregardedentitled to only one indemnification or recovery for such Losses; it being understood that this Section 8.4(i) is solely to preclude a duplicate recovery by an Indemnified Party or recovery in excess of actual damages.
(gj) Seller makes no representations Neither Buyer nor any of its Affiliates shall take any action the purpose or warranties regarding intent of which is to prejudice the amount or availability defense of any net operating loss, capital loss, tax credit carryover claim subject to indemnification hereunder or other Tax asset or liability to induce a third party to assert a claim subject to indemnification hereunder.
(k) Any indemnification for breach of the Acquired Companies representations set forth in Section 5.22 shall be limited to Losses incurred with respect to any taxable period (or portion thereof) beginning after ending on or before the ClosingClosing Date.
Appears in 1 contract
Certain Limitations. The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 7.2 and Section 7.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller an Indemnifying Party shall be liable pursuant to Section 7.2(a)(i7.2(a) or Section 7.3(a), as the case may be, shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement2,000,000.
(b) Notwithstanding anything Any payment made by the Seller to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Purchaser Indemnitees pursuant to Section 7.2(a) shall not exceed the aggregate Purchase Price actually received be paid exclusively by the cancellation of a number of Earn-Out Shares that have a value equal to the indemnification amount, where the value of the Earn-Out Shares shall be based upon the greater of the Agreed Value and the average of the VWAPs for the 20 Trading Days immediately prior to the date written notice of the applicable claim made under this Article VII is delivered to the Seller pursuant to this Agreement, and (ii) the aggregate liability amount of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany such indemnity payment.
(c) The parties hereto expressly waive No Losses may be claimed under Section 7.2 or Section 7.3 by any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Indemnifying Party to the extent that such diminution Losses are included in the calculation of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) any adjustment to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsPurchase Price pursuant to Section 2.3.
(d) An Indemnified Person entitled to indemnification Payments by an Indemnifying Person Party pursuant to this Article VII with Section 7.2 or Section 7.3 in respect of any Loss shall be limited to the amount of any claim liability or group damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution, or other similar payment received or reasonably expected to be received by the Indemnified Party in respect of related claims any such claim. The Indemnified Party shall only be entitled use its commercially reasonable efforts to recover once under insurance policies or indemnity, contribution, or other similar agreements for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in any Losses prior to seeking indemnification under this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working CapitalIN NO EVENT SHALL ANY INDEMNIFYING PARTY BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY PUNITIVE, Company Indebtedness or Company Transaction ExpensesINCIDENTAL, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterCONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING LOSS OF FUTURE REVENUE OR INCOME, LOSS OF BUSINESS REPUTATION, OR OPPORTUNITY RELATING TO THE BREACH OR ALLEGED BREACH OF THIS AGREEMENT, OR DIMINUTION OF VALUE OR ANY DAMAGES BASED ON ANY TYPE OF MULTIPLE.
(f) For purposes of determining (i) whether there has been Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Loss upon becoming aware of any Damages resulting therefromevent or circumstance that would be reasonably expected to, all qualifications or exception in any representation or warranty relating to or referring does, give rise thereto, including incurring costs only to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedminimum extent necessary to remedy the breach that gives rise to such Loss.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) The Buyer Indemnified Parties will not be entitled to indemnification under Section 5.2(a) for any Losses until the Seller shall be directly liable to aggregate amount of Losses incurred or suffered by the Buyer Indemnified Persons Parties arising out of or related to breaches of the Express Representations taken as a whole exceed $328,000 (the “Basket”), in which case the Buyer Indemnified Parties will be entitled to indemnification only for the amount of such Damages pursuant Losses in excess of the Basket (subject to Section 7.2(a)(ithe other provisions herein); and (iii) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 328,000 (the “Cap”). Notwithstanding anything to the contrary herein, the Basket and the Cap will not apply to Losses to the extent resulting from breach of (i) a Fundamental Representation or (ii) the representations and warranties contained in Section 3.20 (Tax Matters).
(ii) Subject to the limitations and procedures of this Article 5, recovery for Losses in respect of an indemnification claim pursuant to this Article 5 (including a claim under Section 5.2(c) to the extent covered by the R&W Insurance Policy) will be effected: (i) first, from the R&W Insurance Policy (to the extent available and actually recovered under the R&W Insurance Policy); and (ii), then, to the extent that the R&W Insurance Policy does not cover all Losses resulting therefrom, from Sellers to the extent provided herein.
(iii) The aggregate maximum liability of Sellers or Buyer with respect to this Agreement and the Transactions will in no event exceed the Cash Purchase Price.
(iv) No Person will be entitled to be indemnified for a Loss to the extent that the amount of such Loss was included in any final adjustment to the Cash Purchase Price pursuant to Section 1.6. The amount of Losses that an Indemnified Party will be entitled to recover hereunder will be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty or covenant.
(v) Each party will use commercially reasonable efforts to mitigate Losses subject to indemnification under this Article 5.
(vi) Each party will use its commercially reasonable efforts to seek recovery under all applicable insurance policies (including, in the case of the Buyer Indemnified Parties, the R&W Insurance Policy, to the extent that coverage is available), indemnity Contracts, contribution Contracts or reimbursement Contracts or other similar rights of recovery for any Loss subject to indemnification under this Article 5 (“Alternative Arrangements”). The amount of Losses that an Indemnified Party will be entitled to recover will be calculated net of (i) amounts recovered by the Indemnified Party under the R&W Insurance Policy for such Losses and (ii) amounts recovered by the Seller shall have no liability Indemnified Party under any other Alternative Arrangements for indemnification such Losses, in each case, net of reasonable costs and expenses (including any increase in insurance premiums) incurred by the Indemnified Party in obtaining such recovery. In the event that any amounts are recovered by any Indemnified Party for Losses previously indemnified under Section 7.2(a)(ithis Article 5, then the Indemnified Party will promptly refund to the Indemnifying Party an amount equal to the lesser of: (A) unless and until the aggregate amount recovered (net of all costs of recovery), and (B) the aggregate amount previously paid to the Indemnified Party by the Indemnifying Party pursuant to this Article 5 in respect of such Damages exceeds $250,000 Loss.
(vii) For purposes of calculating the “Indemnification Deductible”); and provided further that in the case amount of any Losses related to any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty set forth in Article 3 and for purposes of determining whether there has been any inaccuracy in or breach of any such representation or warranty, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof materiality limitations or qualifications (including the deductible provided for thereinterms “material” and “Business Material Adverse Effect,” but excluding any dollar thresholds or qualifications) set forth in any such representation or warranty will be disregarded (other than any materiality limitation or qualification set forth in Section 3.4(a) (Financial Statements), Section 3.5 (Business Operations), in the definitions of Material Vendor, Material Customer, Business Material Adverse Effect or Permitted Lien, or any representation or warranty in Article 3 (except Section 3.20 (Tax Matters)), that requires items to be listed in a Schedule based on references to “material,” “materially” or words of similar import included therein (such as, by way of example, the coverage limit being exceeded or coverage being deniedfourth sentence of Section 3.15, but not, by way of further example, the last sentence of Section 3.11(a), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement).
(bviii) for failing to disclose items that are not required to be disclosed under the express language of such representations and warranties based on references to “material,” “materially” or words of similar import included therein).
(ix) Notwithstanding anything to the contrary hereincontained in this Agreement or another Transaction Document, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches the Buyer Indemnified Parties will not be entitled to indemnification (and no Seller will be required to indemnify a Buyer Indemnified Party) with respect to Losses attributable to a breach of covenants, (i) the aggregate liability any of the Seller for all Damages under representations and warranties set forth in Article 3 regarding Taxes (other than the representations in Section 7.2(a3.20(c) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (iif)) to the extent actually recovered by arising in a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing Date.
(x) Buyer will cause the R&W Insurance Policy to expressly provide at all times while the policy remains in effect that the insurers thereunder will not have or pursue any claim against a Seller by way of subrogation rights, claims for contribution or otherwise in connection with a claim made by a Buyer Indemnified Party or other Person thereunder, except to the extent resulting from Fraud. The provisions of this Section 5.4 and the other limitations on indemnification set forth in this Agreement will apply whether or not the R&W Insurance Policy is obtained or effective and whether or not any Loss is covered under the R&W Insurance Policy. Following Closing, ▇▇▇▇▇ will not amend the R&W Insurance Policy without WWW’s prior written consent.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wolverine World Wide Inc /De/)
Certain Limitations. Subject to the other limitations in this Article VIII, including without limitation Section 8.8(a):
(ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Sellers are to have no obligation to indemnify the Seller shall be liable Buyer Indemnified Persons pursuant to Section 7.2(a)(i8.1(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller of this Agreement (except with respect to any the Seller Fundamental Representations) unless the aggregate amount of all such Damages, whether Losses incurred or not the entirety of any such Damages is covered suffered by the Indemnification Insurance Policy or whether or not Buyer Indemnified Persons exceeds the Indemnification Insurance Policy has expiredBasket (at which point Sellers (severally, been terminated or lapsed; provided that (ion the basis of the Pro Rata Percentage of each Seller) the Seller shall be directly liable to indemnify and hold harmless the Buyer Indemnified Persons for all such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Indemnification Deductible up Basket, subject to an amount the other limitations set forth in Article VIII).
(ii) Except with respect to the Seller Fundamental Representations, the aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) of this Agreement is not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons Retention Escrow Amount solely to the extent such Damages amount remains available in the Escrow Fund.
(iii) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) for any breach of, or inaccuracy in, the Seller Fundamental Representations, or for claims for indemnification pursuant to Sections 8.1(a)(iii) and 8.1(a)(iv), shall not exceed $880,000 (less any amounts previously applied against the retention under the R&W Policy with respect to any other claims for indemnification pursuant to Sections 8.1(a)(i) or 8.1(a)(ii)) solely to the extent such amount remains available in the Escrow Fund.
(iv) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(v) of this Agreement is not to exceed the Indemnity Escrow Amount solely to the extent such amount remains available in the Escrow Fund, except that claims for indemnification for New Matters may exceed such amount and be brought after the exhaustion of the Escrow Fund, but not in excess of $1,000,000 individually or in the aggregate.
(v) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(ii) of this Agreement is not to exceed the Aggregate Cap.
(vi) For the avoidance of doubt, the limitations set forth in Section 8.1(b)(i) of this Agreement are not covered by the Indemnification Insurance Policy to apply to claims for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller indemnification pursuant to Sections 8.1(a)(ii) through Section 8.1(a)(v) of this Agreement.
(bvii) Notwithstanding anything Payments by any Sellers pursuant to Section 8.1(a) of this Agreement in respect of any Losses shall be limited to the contrary hereinamount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, except for Damages resulting from Intentional Fraud, criminal activity contribution or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price other similar payment actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification (excluding however, recoveries under this Agreement the R&W Policy) within twelve (i12) months from when Losses occurred in respect of any Damages to such claim (net of costs of recovery and the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount present value of any Damages resulting therefromassociated increase in insurance premiums or retentions). The Buyer Indemnified Persons shall use commercially reasonable efforts to recover under insurance policies; provided, all qualifications however, that the Buyer Indemnified Persons shall not be required to commence any litigation or exception bear any expenses not fully reimbursed by Sellers in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedconnection with such efforts.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
Certain Limitations. (a) Except for claims arising from Intentional in the case of Fraud, criminal activity or willful breaches of covenantsand subject to Section 8.3(b), the Parent Indemnified Parties, as a group, may not recover any Damages for which the Seller shall be liable Losses pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification claim under Section 7.2(a)(i8.2(a)(i) unless and until the Parent Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $8,000,000 in Losses in the aggregate amount of such Damages exceeds $250,000 (the “Indemnification DeductibleDeductible Amount”); and provided further that in , at which time the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Parent Indemnified Parties shall be directly liable entitled to recover in accordance with this Agreement all such Losses in excess of the Deductible Amount, subject to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to limitations in this Agreement.
(b) Notwithstanding anything Except in the case of Fraud and indemnification claims related to any breach of or inaccuracy in the Fundamental Representations, the Parent Indemnified Parties’ sole and exclusive source of recovery for indemnification claims under Section 8.2(a)(i) and Section 8.2(a)(vii) shall be recourse against the Indemnity Escrow Account.
(c) Except in the case of Fraud, the Parent Indemnified Parties’ sole and exclusive source of recovery for indemnification claims under Section 8.2(a)(viii) shall be recourse against the Specific Indemnity Escrow Account.
(d) Subject to the contrary hereinlimitations set forth in this Section 8.3, the Parent Indemnified Parties shall be entitled to bring indemnification claims directly against the Company Indemnitors (in accordance with each Company Indemnitor’s Pro Rata Share) pursuant to the claims procedures in Section 8.4, provided that any Losses with respect to such claims shall first be recovered from the Indemnity Escrow Account to the extent of any Indemnity Escrow Cash and Indemnity Escrow Shares then remaining therein; provided, that in no event shall the aggregate liability of any Company Indemnitor for all indemnification claims under this Agreement exceed the amount of Total Merger Consideration actually received by such Company Indemnitor (including, for the avoidance of doubt, the Escrow Cash and Escrow Shares, if and to the extent released to the Company Indemnitor, and, in the case of the Key Employee, the amount of the Revested Stock Consideration for the Key Employee (as defined in the Joinder Agreement to which each the Key Employee is a party)), unless such indemnity claim is being made in respect of Fraud committed by such Company Indemnitor or Fraud to which such Company Indemnitor had actual knowledge (in which event there shall be no limitation on the liability of such Company Indemnitor hereunder with respect to such Fraud). In no event shall any Company Indemnitor have any liability for any Fraud committed by any other Company Indemnitor (except to the extent such Company Indemnitor had actual knowledge of such Fraud) or for any breach by any other Company Indemnitor of any Related Agreement entered into by such Company Indemnitor.
(e) The amount of any Losses that are subject to indemnification under this Article VIII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Parent Indemnified Parties from third parties (other than the Company Indemnitors) in respect of such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery); provided that, except for Damages resulting from Intentional Fraudthe following sentence, criminal activity nothing in this Section 7.3(d) shall be construed as or willful breaches of covenantsgive rise to an obligation to seek any such insurance, indemnification or reimbursement. The Parent Indemnified Parties shall use commercially reasonable efforts to seek recovery under (i) the aggregate liability R&W Policy with respect to any applicable Losses in excess of the Seller for all Damages retention under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, R&W Policy and (ii) the aggregate liability D&O Tail Policy and the Cyber Tail Policy, as applicable, with respect to any applicable Losses. If any Parent Indemnified Party receives any such insurance proceeds, indemnification payments or reimbursements from third parties (other than the Company Indemnitors) with respect to any Losses for which it has already received an indemnification payment hereunder (whether from the Indemnity Escrow Account or directly from any Company Indemnitor), it shall deposit an amount equal to the portion of Buyer the indemnification payment for all Damages under Section 7.2(bwhich it received such a third party recovery (net of any costs or expenses incurred in obtaining such recovery, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery) shall into the Indemnity Escrow Account (if the Indemnity Escrow Expiration Date has not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value yet occurred and to the extent that such diminution of value is indemnification payment was made from the probable and reasonably foreseeable result of Indemnity Escrow Account) or with the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) Paying Agent for distribution to the extent actually recovered by a third party (including a Governmental Body) Company Indemnitors who paid for such Losses based on their relative Pro Rata Shares; provided that with respect to any proceeds from an the R&W Policy, the Parent Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled Parties shall not be required to indemnification by an Indemnifying Person refund any amounts previously received pursuant to this Article VII with respect VIII to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification satisfy the retention under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterR&W Policy.
(f) For purposes of determining the maximum liability under this Article VIII of a particular Company Indemnitor who receives shares of Parent Class A Common Stock in the Merger, the shares of Parent Class A Common Stock received by such Company Indemnitor shall be deemed to have a value equal to the lower of (i) whether there has been any misrepresentation or breach of a representation or warranty the Parent Stock Price and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedLiquidity Price.
(g) Seller makes no representations For the avoidance of doubt, any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or warranties regarding the agreement or other indemnifiable matter under Section 8.2. The Parent Indemnified Parties shall not be entitled to indemnification, compensation or reimbursement with respect to any amount or availability item to the extent such amount or item was actually included in the calculation of the Total Merger Consideration Value as finally determined in accordance with Section 2.9.
(h) Parent and Merger Sub acknowledge and agree that the sole and exclusive remedy for the Parent Indemnified Parties with respect to any and all claims for any breach of any net operating lossrepresentation, capital losswarranty, tax credit carryover covenant, agreement or other Tax asset or liability obligation set forth herein, for any of the Acquired Companies other matters set forth in Section 8.2, or otherwise resulting from or arising out of this Agreement, the Merger or the other transactions contemplated hereby will be pursuant to the indemnification provisions set forth in this Article VIII; provided, that the foregoing clause of this sentence shall not be deemed a waiver by any taxable period party of (i) any right to specific performance or portion thereofinjunctive relief, (ii) beginning after any right or remedy of a party under any Related Agreement to which it is party, or (iii) any right or remedy against a particular Company Indemnitor with respect to such Company Indemnitor’s own Fraud or Fraud to which such Company Indemnitor had actual knowledge, and all claims related thereto shall survive until ninety (90) days following the Closingexpiration of the applicable statute of limitations. All claims for indemnification, compensation or reimbursement under this Article VIII shall be asserted by Parent on behalf of the applicable Parent Indemnified Parties. Subject to the other limitations contained herein, the obligations of the Company Indemnitors under this Article VIII shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by the Company that contributed to any inaccuracy or breach giving rise to such obligation, it being understood that the Company Indemnitors, not the Company, shall have the sole obligation for the indemnification obligations under this Article VIII.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller and the Seller Shareholders shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Indemnitees for indemnification under Section 7.02(a) until the aggregate amount of all Damages in respect of indemnification under Section 7.02(a) exceeds One Hundred Twenty Thousand Dollars ($120,000) (the “Basket”), in which event Seller and the Shareholders shall be required to pay or be liable for such Damages pursuant from the first dollar.
(b) The Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Damages in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event the Buyer shall be required to pay or be liable for all such Damages from the first dollar.
(c) The aggregate amount of all Damages for which an indemnifying party shall be liable after giving effect to Section 7.2(a)(i7.04(a) in excess of and Section 7.04(b), as the Indemnification Deductible up to an amount case may be, shall not to exceed One Million Two Hundred Thousand Dollars ($250,000 1,200,000) (the “Cap”). In Buyer’s sole discretion, any and all indemnification amounts owing from Seller or Shareholders to Buyer Indemnitees under Article VII of this Agreement may be setoff off by (x) the principal balance under the Note up to the amount of Seven Hundred Fifty Thousand Dollars ($750,000) until the first anniversary of the Closing Date, and (iiy) the Bonus Payments, as set forth in Section 1.06(b) hereof. Notwithstanding the foregoing, any and all indemnification amounts owing from Seller shall have no liability for indemnification or Shareholders to Buyer Indemnitees due to a breach of Section 3.18 (Employee Benefits Matters) may be setoff by the principal balance under Section 7.2(a)(i) unless and the Note until the aggregate amount fourth anniversary of such the Closing Date.
(d) Notwithstanding the foregoing, the limitations set forth in Section 7.04(a), Section 7.04(b) and Section 7.04(c) shall not apply to Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case based upon, arising out of, with respect to or by reason of intentional fraud or any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (MamaMancini's Holdings, Inc.)
Certain Limitations. The liability of Sellers or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudDamages shall in no event include any special, criminal activity indirect, punitive, incidental, or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementconsequential damages whatsoever.
(b) Notwithstanding anything The parties mutually agree, for tax purposes, to the contrary herein, except for treat Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability recovered hereunder as an adjustment of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPrice.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type amount of multiple, except, in each case, (i) in the event of diminution of value Damages otherwise recoverable under this Article 6 shall be reduced to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representationto which any federal, warrantystate, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personlocal, or (iii) foreign tax liabilities of Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates is decreased by reason of any Damage in the event respect of Intentional Fraudwhich such Seller Indemnitee or Buyer Indemnitee, criminal activity or willful breaches of covenantsas applicable, shall be entitled to indemnity under this Agreement.
(d) An Indemnified Person No claim or claims shall be asserted by a Buyer Indemnitee against either Seller or both of them pursuant to the provisions of this Article 6 unless and until the amount of such indemnitee's Damages exceeds U.S. $100,000 (One Hundred Thousand U.S. Dollars) in the aggregate against either Seller or both of them, whereupon such Buyer Indemnitee shall be entitled to indemnification by an Indemnifying Person pursuant assert one or more claims hereunder for the full amount of its Damages as to which such claim or claims are asserted, without deduction of any amount therefrom. The limitation set forth in this Article VII with respect Section 6.4(d) shall not apply to any claim or group for Damages arising out of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more the representations and/or and warranties set forth in Sections 2.1.5 and 2.2.5 of this Agreement.
(e) No The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.1 of this Article 6 by all Buyer Indemnified Person Indemnitees against Arcadia II shall be entitled limited to indemnification under the Purchase Price. The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.2 of this Article 6 by all Buyer Indemnitees against Arcadia III shall be limited to the portion of the Purchase Price paid to Arcadia III. For the avoidance of doubt, in no event may the aggregate amount of Damages recoverable pursuant to this Agreement (i) in respect of any Damages to by all Buyer Indemnitees against the extent such Damages were taken into account in Sellers be greater than the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterPurchase Price.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. Notwithstanding anything in this Agreement to the contrary,
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the neither Seller shall be liable pursuant required to Section 7.2(a)(i) shall indemnify or otherwise be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group arising from the failure of related claims shall only be entitled Sellers to recover once for obtain any Consent if the obtaining of such claim or group Consent was not a condition precedent to the obligations of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties Buyer set forth in this Agreement or the condition that such Consent be obtained was waived by Buyer;
(b) neither Seller shall be required to indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement., except to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such breaches by both Sellers exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the right to indemnification for Excluded Liabilities, or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(c) Buyer shall not be required to indemnify or otherwise be liable to any Seller for any breach of a representation or warranty, except to the extent the losses, obligations, liabilities, costs, and expenses of both Sellers arising from all such breaches by Buyer exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and does not apply to other indemnification rights or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(d) no party shall indemnify or otherwise be liable to any other party with respect to any claim for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement, unless notice of the claim is given within twelve months after the Closing Date; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the right to indemnification for Excluded Liabilities, or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(e) No Buyer Indemnified Person neither Seller shall be entitled required to indemnification under this Agreement (i) in respect indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, or for the breach of any Damages covenant contained in Section 5 of this Agreement, to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such Damages were taken into account breaches by all Sellers exceed in the calculation aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesright to indemnification for Excluded Liabilities, or (ii) for any Damages to claims relating to any matter the adjustments and prorations pursuant to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.Section 2.3(a); and
(f) For purposes of determining (i) whether there has been Buyer shall not be required to indemnify or otherwise be liable to any misrepresentation or Seller for any breach of a representation or warranty to the extent the losses, obligations, liabilities, costs, and (ii) expenses of all Sellers arising from all such breaches by Buyer exceed in the amount aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of any Damages resulting therefrom, all qualifications representations and warranties and does not apply to other indemnification rights or exception in any representation or warranty to claims relating to or referring the adjustments and prorations pursuant to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 2.3(a).
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Certain Limitations. (a) Except Notwithstanding anything contained in any Transaction Document to the contrary, Seller shall not be obligated to indemnify any Purchaser Indemnified Parties (A) for claims arising from Intentional Fraud, criminal activity or willful breaches Purchaser Losses under Section 7.1(a)(i) of covenants, any Damages for which this Agreement (other than in respect of the Seller shall be liable pursuant to Section 7.2(a)(iSpecified Reps) shall be satisfied solely by recovery by Buyer under and for any breach of the Indemnification Insurance Policy Transition Services Agreement or the Professional Services Agreement and Buyer will have no recourse against the Seller with respect to for any such Damages, whether or not the entirety breach of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be a covenant contained in this Agreement insofar as it directly liable relates to the Buyer Indemnified Persons for such Damages pursuant to Transition Services Agreement or the Professional Services Agreement (including Section 7.2(a)(i9.13 hereof) collectively in the aggregate in excess of the Indemnification Deductible up to an amount not to exceed twenty eight million, one hundred twenty five thousand dollars ($250,000 28,125,000) (the “Cap”), and ) or (iiB) the Seller shall have no liability for indemnification with respect to all Purchaser Losses under Section 7.2(a)(i7.1(a) unless and until for any breach of the Transition Services Agreement or the Professional Services Agreement (including breaches involving fraud or willful breach) collectively in the aggregate amount in excess of such Damages exceeds $250,000 the Purchase Price (the “Indemnification DeductibleAggregate Cap”); and provided further provided, that neither the Cap nor the Aggregate Cap shall apply in the case of any inaccuracy in fraud or willful breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to involving this Agreement.
(b) Notwithstanding anything contained in any Transaction Document to the contrary hereincontrary, except Purchaser shall not be obligated to indemnify any Seller Indemnified Parties (A) for Damages resulting from Intentional Fraud, criminal activity Seller Losses under Section 7.1(b)(i) of this Agreement (other than in respect of the Purchaser Specified Reps) and for any breach of the Transition Services Agreement or the Professional Services Agreement and for any breach of a covenant contained in this Agreement insofar as it directly relates to the Transition Services Agreement or the Professional Services Agreement (including Section 9.13 hereof) collectively in the aggregate in excess of the Cap or (B) with respect to all Seller Losses under Section 7.1(b) and for any breach of the Transition Services Agreement or the Professional Services Agreement (including breaches involving fraud or willful breaches of covenants, (ibreach) collectively in the aggregate liability in excess of the Seller for all Damages under Section 7.2(a) Aggregate Cap; provided, that neither the Cap nor the Aggregate Cap shall not exceed apply in the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability case of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to fraud or willful breach involving this Agreement.
(c) The parties hereto expressly waive Notwithstanding anything to the contrary contained in this Agreement and subject to Section 7.1(c) and Section 7.2(c) of the Seller Disclosure Letter, Seller shall not be liable for any claim to consequentialPurchaser Losses unless and until the aggregate amount of all Purchaser Losses incurred by Purchaser exceeds two million dollars ($2,000,000) (the “Deductible”) and then Seller shall be liable for aggregate amount of all Purchaser Losses (excluding the amount of the Deductible); provided, punitive or indirecthowever, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, that (i) all Purchaser Losses up to the Deductible shall be calculated and included in the event of diminution of value Deductible only to the extent that such diminution Purchaser Losses resulting from any single claim or aggregate claims arising out of value is substantially the probable same facts, events or circumstances exceed the Lower Threshold and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) all Purchaser Losses in excess of the Deductible shall be calculated and included as Purchaser Losses for any purpose under this Article VII only to the extent actually recovered by Purchaser Losses resulting from any single claim or aggregate claims arising out of substantially the same facts, events or circumstances exceed the Higher Threshold; provided, further, that, for purposes of determining whether a third party (including a Governmental BodyPurchaser Loss applies to the Lower Threshold or the Higher Threshold, such determination shall be made based on timing of Purchaser Indemnified Party’s discovery of the event underlying such Purchaser Loss; provided, further, that the Deductible, the Lower Threshold and the Higher Threshold shall not apply to indemnification claims for Purchaser Losses under Section 7.1(a)(i) from an Indemnified Personfor breach of Seller Specified Reps or under Sections 7.1(a)(ii) or 7.1(a)(iii), or (iii) in the event of Intentional Fraud, criminal activity for fraud or willful breaches of covenantsbreach.
(d) An Indemnified Person entitled to indemnification The representations and warranties of Seller and Purchaser contained in ARTICLE III (as modified by an Indemnifying Person pursuant to the Disclosure Letter) and ARTICLE IV, respectively, of this Article VII Agreement shall survive the Closing until the twelve (12)-month anniversary of the Closing Date, other than the representations set forth in (i) Section 3.1, Section 3.2(a), Section 3.2(b) with respect to any claim or group clause (i) only, Section 3.4(a), Section 3.4(b), Section 3.10 and Section 3.11 (collectively, the “Seller Specified Reps”) and Section 4.1, Section 4.2, Section 4.4 and Section 4.6 (collectively, the “Purchaser Specified Reps”) which shall survive until thirty (30) days after the expiration of related claims shall only be entitled the applicable statute of limitations with respect to recover once for the matters contained therein or, if no such claim or group applicable statute of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth limitations exists, indefinitely. The covenants and agreements contained in this AgreementAgreement shall survive the Closing until the date or dates specified therein or, if not so specified, until the expiration of the applicable statute of limitations with respect to the matters contained therein or, if no such applicable statute of limitations exists, indefinitely. Notwithstanding the foregoing, no time limitations shall apply to any claims based on fraud or willful breach.
(e) No Buyer The obligations to indemnify, defend and hold harmless a Party pursuant to Section 7.1(a) or 7.1(b) shall terminate if the applicable representation, warranty or covenant terminates pursuant to Section 7.2(d); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Seller Indemnified Person Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall be entitled to indemnification under this Agreement have, before the expiration of the applicable survival period, made a claim by delivering a written notice (istating in reasonable detail the basis of such claim) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterIndemnifying Party.
(f) For Notwithstanding anything contained herein or elsewhere to the contrary, all “material,” “materially” or Company Material Adverse Effect qualifiers contained in the representations and warranties (or definitions used in the representations and warranties) set forth in ARTICLE III (other than clause (ii) of Section 3.16(a)) and ARTICLE IV of this Agreement and in the certificates delivered pursuant to Section 6.2(a) or Section 6.3(a) shall be ignored and not given any effect for purposes of the indemnification provisions hereof, including, without limitation, for purposes of determining (i) whether there has been any misrepresentation or not a breach of a representation or warranty and has occurred, in determining whether the limitations in this Section 7.2 have been satisfied (iiincluding the Deductible) and/or in determining the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedindemnifiable Purchaser Losses.
(g) Seller makes Except with respect to intentionally concealed matters, no representations information or warranties regarding the amount knowledge acquired, or availability of any net operating lossinvestigations conducted, capital lossby Purchaser or its representatives, tax credit carryover or other Tax asset or liability of the Acquired Companies Business, the Company, the Company Subsidiary or otherwise, shall in any taxable period (way limit, or portion thereof) beginning after the Closingconstitute a waiver of, or a defense to, any claim for indemnification by Purchaser or any Purchaser Indemnified Party under this Agreement.
Appears in 1 contract
Certain Limitations. The liability of the Vendors or Purchaser, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendors shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendors, except for Damages with respect to an amount not which the Purchaser Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 11.1 above; and (ii) the Seller Purchaser shall have no liability further obligations under this Article XII for indemnification under breaches of representations and warranties of the Purchaser, except for Damages with respect to which the Vendors Indemnitee has given the Purchaser written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement11.1.
(b) Notwithstanding anything to the contrary herein, except for Purchaser Indemnitees shall not be entitled to recover Damages resulting from Intentional Fraud, criminal activity or willful breaches Vendors pursuant to Section 12.1(a) unless and until the accumulated aggregate amount of covenants, Damages shall exceed an amount which is the equivalent of E 100,000 (ione hundred thousand Euro) (the aggregate liability "VENDOR INDEMNIFICATION THRESHOLD"). Vendors shall thereafter indemnify any of the Seller for Purchaser Indemnitees from all and against all Damages under Section 7.2(ain excess of equivalent E 100,000. For the avoidance of doubt, the limitations in this sub-section (b) set forth shall not exceed the aggregate Purchase Price actually received be applicable to any payments to be made by the Seller PCE to Purchaser pursuant to this Agreement, the provisions of Section 2.3 (Minimum NOI Payments) and Section 2.6 (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPecs Lease Expiry Payments).
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type the contrary herein but subject to the last sentence of multiple, exceptthis paragraph, in each casethe absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any Purchaser Indemnitee exceed the maximum amount of E 15,000,000. However : (i) in the event that Purchaser shall elect to join additional purchasers as parties to this Agreement as contemplated in Section 2.10 above, then and in such event the maximum amount in respect of diminution which indemnity may be claimed by all four purchasing entities and all and any Purchaser Indemnitees shall not exceed the total amount of value to E 15,000,000 in the extent that such diminution of value is the probable aggregate; and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event that Vendors shall fail to obtain the Klepierre Waiver, and/or in the event that this Agreement is declared void ab initio by reason of Intentional Frauda violation of the rights of the Klepierre Group in respect of the acquisition of the Transaction Companies and/or the Portfolio Centers, criminal activity then and in such event the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or willful breaches incurred by any Purchaser Indemnitee pursuant to a breach of covenantsSection 4.8 shall not exceed a maximum amount equal to the Final Purchase Price, or the amount actually paid by Purchaser to Vendor on account of the Final Purchase Price, whichever be the lower amount, plus any actual and proven damages suffered by Purchaser in excess of that amount in consequence of this Agreement having been declared void as a result of that fact.
(d) An Indemnified Person entitled Notwithstanding anything to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims the contrary herein, Vendor Indemnitees shall only not be entitled to recover once for such claim or group Damages from Purchaser unless and until the accumulated aggregate amount of related claims notwithstanding that such claim or group Damages shall exceed an amount which is the equivalent of related claims may constitute a breach E 100,000 (one hundred thousand Euro) (the "PURCHASER INDEMNIFICATION THRESHOLD"). Purchaser shall thereafter indemnify any of two or more representations and/or warranties set forth the Vendors' Indemnitees from all and against all Damages in this Agreementexcess of equivalent E 100,000.
(e) No Buyer Indemnified Person Notwithstanding anything to the contrary herein, in no event shall be entitled to indemnification under this Agreement (i) the maximum aggregate liability of Purchaser in respect of any Damages claims by the Vendors Indemnitees against Purchaser pursuant to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (iiSection 12.2(a) for Damages suffered or incurred by any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterVendors Indemnitees exceed E 15,000,000.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional FraudSubject to Section 8.04(f) below, criminal activity or willful breaches of covenants, any Damages for which the Seller Buyer Indemnitees shall not be liable indemnified pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller 8.02 with respect to any such Damages, whether or not indemnifiable Loss if the entirety aggregate of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the all payments from Sellers Parties for Losses for which Buyer Indemnified Persons for such Damages Indemnitees are indemnified pursuant to Section 7.2(a)(i) 8.02 has exceeded the Purchase Price. Notwithstanding the foregoing, Buyer Indemnitees shall be indemnified for all indemnifiable Losses in excess of the Indemnification Deductible up Purchase Price that arise from or are related to an amount fraud or a deliberate or willful breach or intentional misrepresentation on the part of any Seller Party in connection with the transactions contemplated by this Agreement.
(b) Subject to Section 8.04(f) below, Seller Indemnitees shall not be indemnified pursuant to exceed $250,000 Section 8.03 with respect to any indemnifiable Loss if the aggregate of all payments from Buyer or Advance America for Losses for which Seller Indemnitees are indemnified from Buyer pursuant to Section 8.03 has exceeded the Purchase Price. Notwithstanding the foregoing, Seller Indemnitees shall be indemnified for all indemnifiable Losses in excess of the Purchase Price that arise from fraud or a deliberate or willful breach or intentional misrepresentation on the part of Buyer or Advance America in connection with the transactions contemplated by this Agreement.
(c) For purposes of this Article VIII, and other than with respect to the “Cap”representations and warranties set forth in Section 3.06, Section 3.08(a), Section 3.09(a)(xiii), Section 3.10(a), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”3.18(c); and provided further that in the case of , any inaccuracy in or breach of any Company Fundamental Representation, the Seller representation or warranty shall be directly liable determined without regard to the Buyer Indemnified Persons any materiality, Material Adverse Effect, or other similar qualification contained in or otherwise applicable to the extent such Damages are not covered by the Indemnification Insurance Policy for representation or warranty. For all purposes of this Agreement, “Losses” shall be net of (i) any reason insurance or other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price recoveries actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything Indemnified Party or its Affiliates in connection with the facts giving rise to the contrary hereinright of indemnification, except for Damages resulting from Intentional Fraudbut taking into account the present value of any reasonably anticipated premium adjustments, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreementdeductibles and other costs associated therewith, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price any Tax benefit actually paid received by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive Indemnified Party or its Affiliates, net of any claim to consequentialTax costs actually incurred by the Indemnified Party or its Affiliates, punitive or indirectarising in connection with the accrual, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personincurrence, or (iii) in the event payment of Intentional Fraud, criminal activity or willful breaches of covenantssuch Losses.
(d) An Indemnified Person entitled to No indemnification shall be made for any Loss already previously indemnified by payment by an Indemnifying Person Party to any Indemnified Party or for any Loss for which a Post-Closing Adjustment was made. Notwithstanding anything herein to the contrary, no Indemnifying Party shall be required to indemnify any Indemnified Party pursuant to this Article VII with respect Section 8.02 or 8.03, as applicable, until all Losses incurred by the Indemnified Party have exceeded One Hundred Thousand Dollars ($100,000.00) (the “Indemnification Threshold”), at which point the Indemnifying Party shall be obligated to indemnify the Indemnified Party from and against all Losses relating back to the first dollar; provided, however, that the Indemnification Threshold shall not apply to any claim CAM charges, rent, utilities, or group of related claims property taxes that are Retained Liabilities and Parent shall only be entitled to recover once for promptly pay all such claim or group of related claims notwithstanding items that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No are Retained Liabilities and reimburse Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages within ten Business Days to the extent Buyer pays any such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matteritems.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (CompuCredit Holdings Corp)
Certain Limitations. The indemnification provided for in Section 22.2 and Section 22.3 shall be subject to the following limitations:
(a) Except No Purchaser Indemnitee will be entitled to recover Damages pursuant to Section 22.2, and ▇▇▇▇ and MIG will not be liable to any Purchaser Indemnitee for claims arising from Intentional Fraudany Damages, criminal activity until the aggregate amount of all Damages in respect to Indemnification under Section 22.2(a) exceed $20,000 (the “▇▇▇▇ and MIG Basket”) in which event ▇▇▇▇ and MIG will only be required to pay or willful breaches be liable for all Damages that exceed the ▇▇▇▇ and MIG Basket. The aggregate amount of covenants, any all Damages for which the Seller shall MIG and ▇▇▇▇ will be liable pursuant to Section 7.2(a)(i22.2(a) shall will not exceed $3,300,000.00 (the “▇▇▇▇ and MIG Cap”), except in the case of breaches of Fundamental Representations (in which case the Cap will be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable equal to the Buyer Indemnified Persons for such Purchase Price (the “▇▇▇▇ and MIG Fundamental Cap”). No Purchaser Indemnitee will be entitled to recover Damages pursuant to Section 7.2(a)(i) 22.2 and ▇▇▇▇ and MIG will not be liable to any Purchaser Indemnitee for any Damages which when aggregated with any amounts previously paid or to be paid by ▇▇▇▇ or MIG pursuant to Section 22.2 would be in excess of the Indemnification Deductible up Purchase Price.
(b) No Seller Indemnitee will be entitled to an amount not recover Damages pursuant to exceed $250,000 (the “Cap”)Section 22.3, and (ii) the Purchaser and Parent will not be liable to any Seller shall have no liability Indemnitee for indemnification under Section 7.2(a)(i) unless and any Damages, until the aggregate amount of such all Damages exceeds in respect to Indemnification under Section 22.3(a) exceed $250,000 20,000 (the “Indemnification DeductiblePurchaser and Parent Basket”) in which event Purchaser and Parent will only be required to pay or be liable for all Damages that exceed the Purchaser and Parent Basket. The aggregate amount of all Damages for which Purchaser and Parent will be liable pursuant to Section 22.2(a) will not exceed $3,300,000.00 (the “Purchaser and Parent Cap”); and provided further that , except in the case of any inaccuracy breaches of Fundamental Representations (in or breach of any Company which case the Cap will be equal to $11,000,000.00 (the “Purchaser and Parent Fundamental RepresentationCap”). Except for failure to pay the Closing Purchase Price, the no Seller shall Indemnitee will be directly entitled to recover Damages pursuant to Section 22.3 and Parent and Purchaser will not be liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy any Seller Indemnitee for any reason other than Damages which when aggregated with any amounts previously paid or to be paid by Purchaer or Parent pursuant to Section 22.3 would be in excess of the lack the sum of good faith efforts by (a) $11,000,000 plus (b) the Buyer Indemnified Persons to seek recovery thereunder and comply with value of the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price Parent Shares actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability ▇▇▇▇ under Section 10.3 whose value is determined as of the Seller for all Damages under Section 7.2(a) shall not exceed Effective Date (based upon the aggregate Purchase Price actually received by volume weighted average price of the Seller pursuant to this Agreement, and (ii) Parent Common Stock over the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed five trading days immediately preceding the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementEffective Date).
(c) The parties hereto expressly waive limitations set forth in Section 22.4(a) and Section 22.4(b) will not apply to Damages based upon, arising out of, with respect to or by reason of any claim to consequentialfraud, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity intentional misrepresentation or willful breaches of covenantsmisconduct by Purchaser, Parent, ▇▇▇▇ or MIG, as applicable.
(d) An Indemnified Person entitled to indemnification If any Damages incurred by an Indemnifying Person pursuant indemnified party results in any entitlement to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating insurance recovery to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) party then the amount of any Damages resulting therefromsuch damages payable by the indemnifying party will be adjusted to reflect such benefit, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability net of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability reasonable costs of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closingrecovery.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mawson Infrastructure Group Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Bloxbiz and the Founders shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds Fifty Thousand and 00/100 Dollars (the "Basket"), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which Bloxbiz and the Seller Founders shall be liable pursuant to Section 7.2(a)(i8.02(a) for breaches of Seller Fundamental Reps shall not exceed the amount of the Purchase Price actually received by Seller (the "Fundamental Cap"); and the aggregate amount of all Losses for which Bloxbiz and the Founders shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i8.02(a) for breaches of Seller Non-Fundamental Reps shall not exceed $4,375,000. In no event will the Sellers be liable for an aggregate of all Losses in excess of the Indemnification Deductible up Fundamental Cap (except in the case of fraud). For the avoidance of doubt, any amounts of the Revenue Earnout accrued and earned shall be considered received for purposes of determining the amount received under this ARTICLE VIII.
(b) Buyer shall not be liable to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Fundamental Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of fraud.
(d) For purposes of this ARTICLE VIII, any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of shall be determined without regard to any Damages resulting therefrommateriality, all qualifications Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Super League Gaming, Inc.)
Certain Limitations. The party making a claim under this Article 8 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article 8 is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.2(a) and Section 8.2(b) shall be subject to the following limitations:
(a) Except for claims arising from Intentional in the case of Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages Parties, collectively, may not recover any Losses pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification claim under Section 7.2(a)(i8.2(a)(i) (other than a claim in respect of a Company Fundamental Representation or in connection with VDA Losses) unless and until the aggregate amount of such Damages exceeds Buyer Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $250,000 1,000,000 in Losses (the “Indemnification DeductibleBasket”) in the aggregate, at which time the Buyer Indemnified Parties shall be entitled to recover all Losses from the first dollar; provided, however, that no Buyer Indemnified Party shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 8.2(a)(i) unless and until such individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnification under Section 8.2(a)(i) exceed $10,000 (the “Mini-Basket”); , and provided further that any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(a).
(b) Except in the case of Fraud, in no event shall the Buyer Indemnified Parties, collectively, recover any inaccuracy Losses pursuant to an indemnification claim under Section 8.2(a)(i) (other than a claim in or breach respect of any a Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack ) in excess of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received Indemnity Holdback Amount. In connection with any claim for indemnification for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 8.2 and subject to this Article 8, no Seller shall be liable for more than his, her or its Pro Rata Fraction of any Losses arising out of or resulting from such claim; provided, however, with respect to a breach of a representation or warranty made solely by an individual Seller contained in Article 4, or a breach of a covenant solely by an individual Seller contained in this Agreement or in any other Related Agreement (as contrasted with a breach by the Company or the Sellers collectively) (with each such individual Seller pursuant breach referred to this Agreement.
(b) Notwithstanding anything to the contrary hereinherein as an “Individual Seller Breach”), except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the such particular Seller shall be solely liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Losses arising only in connection with such Individual Seller pursuant to this AgreementBreach, and (ii) the aggregate liability of Buyer no other Seller shall be liable hereunder for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany such Individual Seller Breach.
(c) Except in the case of Fraud, Sellers, collectively, may not recover any Losses pursuant to an indemnification claim under Section 8.2(b)(i) (other than a claim in respect of a Buyer Fundamental Representation) unless and until Sellers, as a group, shall have paid, incurred, suffered or sustained Losses in excess of the Basket, at which time Sellers shall be entitled to recover all Losses from the first dollar; provided, however, that no Seller shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 8.2(b)(i) unless and until such individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnification under Section 8.2(b)(i) exceed the Mini-Basket, and any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(c).
(d) In no event shall the Liability of any Seller for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration received or entitled to be received by such Seller, unless such indemnification claim is being made in respect of Fraud committed by such Seller or Fraud of which such Seller had actual knowledge (in which event there shall be no limitation on the Liability of such Seller hereunder or under applicable Law). In no event shall the Liability of Buyer for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration.
(e) The amount of any Losses that are subject to indemnification under this Article 8 shall be calculated net of the amount of any insurance proceeds (including without limitation all tail insurance policies obtained in connection herewith), indemnification payments or reimbursements actually received by the Indemnified Party from third parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (iother than the Sellers) in respect of such Losses (net of any reasonable and documented out-of-pocket costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments directly resulting from such recovery).
(f) For the event avoidance of diminution doubt, any Losses subject to indemnification under this Agreement shall be determined without duplication of value recovery due to the extent that facts giving rise to such diminution of value is the probable and reasonably foreseeable result of the applicable Losses constituting a breach of a more than one representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsunder any Related Agreement).
(dg) An In no event shall any Indemnifying Party be liable to any Indemnified Person entitled Party for any punitive damages or damages which are not reasonably foreseeable, other than, in each case, as awarded to indemnification a third party.
(h) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate, only to the minimum extent required by an Indemnifying Person pursuant applicable Law, any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to this Article VII the minimum extent required by applicable Law to remedy the breach that gives rise to such Losses.
(i) Each party acknowledges and agrees that, other than with respect to any claim or group of related Related Agreement (which shall be subject to the terms and conditions thereof), such party’s sole and exclusive remedy with respect to any and all claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a any breach of two any representation, warranty, covenant, agreement or more representations and/or warranties obligation set forth herein or otherwise resulting from or arising out of this Agreement or the Transactions will be pursuant to the indemnification provisions set forth in this Agreement.
(e) No Buyer Indemnified Person Article 8; provided, that the foregoing clause of this sentence shall not be entitled to indemnification under this Agreement deemed a waiver by any party of (i) in respect of any Damages right to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness specific performance or Company Transaction Expensesinjunctive relief, or (ii) for any Damages relating right or remedy with respect to Fraud. Subject to the other limitations contained herein (including the obligation to mitigate damages set forth in Section 8.3(h)), the obligations of the Sellers under this Article 8 shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by any Group Company that contributed to any matter to the extent that there is included in the Interim Financial Statements a specific liability inaccuracy or reserve relating breach giving rise to such matterobligation, it being understood that Sellers, not the Group Companies, shall have the sole obligation for the indemnification obligations under this Article 8.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The liability of the Seller, Parent or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except At any time after the applicable Survival Date for claims arising from Intentional Frauda representation and warranty, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable have no further obligations under this Article IX for breaches of such representations and warranties of the Seller, except for Damages with respect to which the Buyer Indemnified Persons for Indemnitee has timely given the Seller written notice prior to such Damages pursuant to Section 7.2(a)(i) date in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), accordance with Sections 8.1 and 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless and until the aggregate amount breaches of such representations and warranties of the Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, with respect to which the Seller shall be directly liable to Indemnitee has given the Buyer Indemnified Persons written notice prior to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder date in accordance with Sections 8.1 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement9.3.
(b) Notwithstanding anything to the contrary herein, except for with respect to Fraud Claims, any claim by a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages resulting from Intentional Fraud, criminal activity or willful breaches in respect of covenants, (i) Seller’s obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed $100,000 in the aggregate liability (the “Seller Indemnification Threshold”); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid suffered or incurred by the Buyer pursuant to this AgreementIndemnitees in excess of such initial $100,000 of Damages.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequentialthe contrary herein, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptexcept with respect to Fraud Claims (for which there shall be no limitation), in each case, no event shall the maximum aggregate liability of Seller in respect of any claims by the Buyer Indemnitees against Seller pursuant to
Section 9.1 (ia) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result for Damages suffered or incurred by any Buyer Indemnitees exceed 10% of the applicable value of the Purchase Price (as adjusted pursuant to Section 2.4), except that with respect to Damages suffered or incurred by any Buyer Indemnitee due to a breach of a representation, warranty, covenant or agreement hereunder, Section 3.16 the maximum aggregate liability of Seller shall be 20% of the value of the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.4).
(d) An Indemnified Person entitled Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by an Indemnifying Person Buyer Indemnitees against Seller in pursuant to this Article VII Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e); provided, however, that except for Fraud Claims, Buyer’s or Parent’s (or any Buyer Indemnitee’s) right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e) shall expire with respect to any claim such claims which are not made on or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages prior to the extent such Damages were taken into account in date five years following the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterDate.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.01 and Section 8.02shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The WOHG Shareholders shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Company Indemnified Persons Parties for indemnification under Section 8.01 until the aggregate amount of all Losses in respect of indemnification under Section 8.01 exceeds $10,000 (the “Basket”), in which event the WOHG Shareholders shall be required to pay or be liable for all such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Indemnification Deductible Basket up to an a maximum amount not equal to exceed $250,000 the value of the Exchange Shares on the Closing Date as received by the WOHG Shareholders as determined by reference to the Average Final Price (the “Cap”), and provided that, in the event that the indemnification obligations are those of less than all of the WOHG Shareholders pursuant to the last sentence of Section 8.01, then the Basket and the Cap shall be applied to such indemnifying WOHG Shareholder(s) pro rata based on the number of shares of WOHG Stock held by such WOHG Shareholder(s) as of the Closing Date, such that, by way of example and not limitation. if a WOHG Shareholder is so obligated to indemnify the Company Indemnified Parties pursuant to such section and held 50% of the total shares of WOHG Stock as of the Closing Date, the Basket would be $5,000 and the Cap would be 50% of the total value of the Exchange Shares on the Closing Date as received by the WOHG Shareholders as determined by reference to the Average Final Price. Any such utilization or satisfaction of the Basket and the Cap by one or more of the WOHG Shareholders as a result of the preceding sentence shall apply to any later determinations of the utilization or satisfaction of the Basket and the Cap.
(iib) The Company shall not be liable to the Seller shall have no liability WOHG Indemnified Parties for indemnification under Section 7.2(a)(i) unless and 8.02 until the aggregate amount of such Damages all Losses in respect of indemnification under Section 8.02 exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket, in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly required to pay or be liable to for all such Losses in excess of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), Basket up to an a maximum amount equal to the Purchase Price actually received by the Seller pursuant Cap, which shall in such case be applied to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability all of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementWOHG Shareholders as a group.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Share Exchange Agreement (Tongji Healthcare Group, Inc.)
Certain Limitations. The indemnification provided for in Sections 9.2 and 9.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller Parent Shareholder Indemnitees shall be liable indemnified pursuant to Section 7.2(a)(i) 9.2 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to exceed an amount not equal to exceed seventy-five million dollars $250,000 75,000,000 (the “Cap”).
(b) Notwithstanding any other provision of this Agreement, and (ii) the Seller Parent shall not have no liability for indemnification under any obligation to indemnify any Parent Shareholder Indemnitee pursuant to Section 7.2(a)(i) 9.2, unless and until the aggregate amount of all such Damages individual Losses incurred or sustained by all Parent Shareholder Indemnitees with respect to which the Parent Shareholder Indemnitees would otherwise be entitled to indemnification under Section 9.2 exceeds five million dollars $250,000 5,000,000 (the “Indemnification DeductibleThreshold Amount”); , and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons then only to the extent such Damages are not covered by Losses exceed the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to Threshold Amount. Only Losses that exceed an amount equal to one hundred thousand dollars $100,000 (the Purchase Price actually received by the Seller pursuant to this Agreement.
(b“Minimum Loss Amount”) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability shall be counted towards satisfaction of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementThreshold Amount.
(c) The parties hereto expressly waive any claim aggregate amount of all Losses for which the Company Shareholder Indemnitees shall be indemnified pursuant to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Section 9.3 shall not exceed an amount equal to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsCap.
(d) An Indemnified Person Notwithstanding any other provision of this Agreement, Parent shall not have any obligation to indemnify any Company Shareholder Indemnitee pursuant to Section 9.3 unless and until the aggregate amount of all such individual Losses incurred or sustained by all Company Shareholder Indemnitees with respect to which the Company Shareholder Indemnitees would otherwise be entitled to indemnification by an Indemnifying Person pursuant under Section 9.3 exceeds the Threshold Amount, and then only to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for the extent such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLosses exceed the Threshold Amount.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromLosses that are the subject matter of a claim for indemnification hereunder, all qualifications or exception each representation and warranty in any representation or warranty relating to or referring this Agreement shall be read without regard and without giving effect to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualificationqualifier, term or phrase shall be disregardedas if such words and surrounding related words were deleted from such representation and warranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations:
(a) Except with respect to claims for claims arising from Intentional Fraud, criminal activity inaccuracies or willful breaches of covenants, any Damages Fundamental Representations (for which no such limitation shall apply), Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 6.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.02(a) exceeds $65,000 (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 7.2(a)(i6.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 1,300,000 (the “Cap”), and (ii) . Seller’ maximum aggregate liability to the Seller shall have no liability Buyer Indemnitees for indemnification under Section 7.2(a)(i6.02(a) unless and for inaccuracies or breaches of Fundamental Representations shall not exceed the Purchase Price.
(b) Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 6.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the Seller Indemnitees for indemnification under Section 6.03(a) for inaccuracies or breaches of Fundamental Representations shall not exceed the Purchase Price.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 6.04(a) and provided further that Section 6.04(b) shall not apply in the any case of fraud.
(d) For purposes of Section 6.02(a), any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded representation or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreementwarranty, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages Losses resulting therefrom, all qualifications shall be determined without regard to any materiality, Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kingsway Financial Services Inc)
Certain Limitations. (a) The Shareholders shall not be required to indemnify the Parent Indemnified Parties for those portions of any Damages that were specifically accrued or deducted in determining any adjustments pursuant to Article III. Parent shall not be required to indemnify the Shareholder Indemnified Parties for those portions of any Damages (i) that were specifically accrued or deducted in determining any adjustments pursuant to Article III or (ii) to the extent directly resulting from any breach of the Company’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages.
(b) Except for in the case of claims arising from Intentional of Fraud, criminal activity no Shareholder shall have any liability to the Parent Indemnified Parties under Section 9.1(a) (other than with respect to the Fundamental Representations and Warranties) until the aggregate amount of all Damages exceeds $1,050,000 (the “Deductible”), and then only to the extent such Damages exceed the Deductible. Notwithstanding the foregoing sentence, the Fundamental Representations and Warranties shall not be subject to the Deductible.
(c) Except in the case of claims of Fraud, Parent shall not have any liability to the Shareholder Indemnified Parties under Section 9.2(a) until the aggregate amount of all Damages exceeds the Deductible, and then only to the extent such Damages exceed the Deductible.
(d) Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(a) and Section 9.1(f) shall not exceed the amount of the Indemnification Escrow Amount. Notwithstanding anything herein to the contrary, except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ shall have no liability under Section 9.1(a) and Section 9.1(f) following the release of the Indemnification Escrow Amount in accordance with Section 9.7 other than for any Continuing Claim. This clause (d) shall in no way limit the Parent Indemnified Parties entitlement to any recovery under the Special Indemnification Escrow Fund.
(e) Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(g) shall not exceed the sum of the Special Indemnification Escrow Amount and the Indemnification Escrow Amount.
(f) Except in the case of claims of Fraud and subject to Section 11.7, Parent’s aggregate liability under Section 9.2(a) shall not exceed the amount of the Indemnification Escrow Amount.
(g) Except in the case of claims of Fraud against the Shareholder who committed such Fraud or willful breaches if such Shareholder had actual knowledge of covenantsFraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the aggregate liability of each Shareholder under this Agreement, or in connection with the transactions contemplated by this Agreement, shall not exceed the portion of the Purchase Price actually received by such Shareholder.
(h) Except in the case of claims of Fraud against Parent or Merger Sub, the aggregate liability of Parent under this Agreement shall not exceed the Purchase Price actually paid by or on behalf of Parent.
(i) Except in the case of claims of Fraud against the Company Shareholder who committed such Fraud or if such Shareholder had actual knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, any Damages amounts owed by the Shareholders for which indemnification to the Seller shall be liable pursuant to Parent Indemnified Parties under Section 7.2(a)(i9.1(a) and Section 9.1(f) shall be satisfied solely as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several, and not joint, basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (ii) second, against the R&W Policy; provided that this clause (i) shall in no way limit the Buyer Indemnified Parties entitlement to any recovery by Buyer under the Special Indemnification Insurance Policy Escrow Fund.
(j) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(b)-(e) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and Buyer will have no recourse not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, directly against the Seller Shareholders on a several, and not joint, liability basis in accordance with their Pro Rata Portion, subject to the limitation set forth in Section 9.5(d); provided that, in the case of claims of Fraud against such Shareholder who committed such Fraud or if such Shareholder had knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this Section 9.5(j) solely with respect to such Shareholder.
(k) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(g) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Special Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds).
(l) Any indemnity payment made by the Shareholders to any Parent Indemnified Party, on the one hand, or by Parent to any Shareholder Indemnified Party, on the other hand, pursuant to this Article IX shall be reduced by (A) an amount equal to any insurance proceeds actually received by such Damagesindemnified party in respect of such claim (other than proceeds received under the R&W Policy with respect to claims subject to the Initial Retention (as defined in the R&W Policy)) minus the sum of (i) any out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) relating to the recovery of such proceeds and (ii) any deductibles and increases in premiums as a result of such claim and (B) the actual and permanent cash Income Tax savings recognized in the taxable year in which the applicable Damages are incurred by the Parent Indemnified Party or Shareholder Indemnified Party, whether as applicable, that results from the Damages giving rise to such indemnity payment, determined using a “with and without” methodology (as determined in good faith by the Parent Indemnified Party or Shareholder Indemnified Party, as applicable). If any actual and permanent cash Income Tax savings described in the preceding sentence is not recognized until after an applicable indemnification payment is payable, such indemnification payment shall not be reduced by the entirety anticipated cash Tax savings but when such actual and permanent cash Income Tax savings is recognized, the Parent Indemnified Party or Shareholder Indemnified Party, as applicable, shall promptly make a cash payment to the indemnifying party in an amount equal to such actual cash Income Tax savings.
(m) Notwithstanding anything to the contrary set forth in this Agreement, a Party’s indemnification obligations pursuant to Section 9.1 or Section 9.2 (for the purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to such inaccuracy or breach) shall be determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Article IV; provided, however, that such qualifications will not be disregarded with respect to Section 4.6(a) and (b) and the definition of “Material Contract”.
(n) Notwithstanding anything to the contrary set forth in this Agreement, in the case of a claim of Fraud perpetrated by any Shareholder (solely in its capacity as a Shareholder and not as a director, officer or employee of the Company and not in connection with the Company’s making of representations and warranties in this Agreement), such Shareholder shall be solely responsible for any Damages is covered arising therefrom. Any Fraud perpetrated by a Shareholder (solely in its capacity as a Shareholder and not as a director, officer or employee of the Company and not in connection with the Company’s making of reps and warranties in this Agreement) will not be imputed to any other Shareholder that did not commit the Fraud; provided that the foregoing shall not alleviate the indemnification obligations of the Shareholders to any Parent Indemnified Party for Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, or if such Shareholder had knowledge of such Fraud committed by the Indemnification Insurance Policy Company or whether any of its Subsidiaries, as otherwise set forth in this Article IX.
(o) The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the Indemnification Insurance Policy has expiredright to indemnification, been terminated compensation or lapsed; provided other remedy based upon such representations, warranties, covenants and obligations.
(p) Each Shareholder hereby agrees that (i) the Seller availability of indemnification of the Parent Indemnified Parties under this Article IX shall be directly liable determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Shareholder may have from the Buyer Indemnified Persons for Company or any of its Subsidiaries (whether such Damages rights may arise from or pursuant to Section 7.2(a)(i) in excess applicable Law, Contract, the organizational documents of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”Company or any of its Subsidiaries or otherwise), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) Shareholder shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once any indemnification, advancement, contribution or reimbursement from Parent, the Company or any Subsidiary of the Company, or any of their respective Affiliates for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer amounts for which Parent Indemnified Person shall Parties would be entitled to indemnification under this Agreement Article IX (idetermined without regard to any thresholds, deductibles, caps, survival periods or other limitations).
(q) Notwithstanding anything in respect of any Damages this Article IX to the extent contrary, if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations and other limitations depending on such characterization, then an indemnified party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow double recovery for the same claim.
(r) Notwithstanding the foregoing, any Parent Indemnified Party seeking indemnification shall use its reasonable best efforts to pursue recovery under the R&W Policy, directors’ and officers’ tail policy or cyber tail policy, as applicable, with respect to Damages were taken into account in the calculation of the Final Closing Working Capitalfor which they may seek to be indemnified pursuant to this Article IX, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter only to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterDamages are covered by such policies.
(fs) For purposes of determining (i) whether there has been Solely to the extent required by applicable Law, each indemnified party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. The reasonable costs and expenses of mitigation hereunder shall constitute indemnifiable Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedunder this Agreement.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The Party making a claim under this Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i10.1(a) unless with respect to breaches of representations and warranties until the aggregate amount of all Losses that would be payable pursuant to such Damages claim exceeds one million two hundred twenty-five thousand dollars ($250,000 1,225,000) (the “Indemnification Deductible”) (the “Deductible”), in which event Sellers shall be required to pay or be liable for Losses in excess thereof; provided, however, that the aggregate amount of all Losses for which Sellers shall be liable under Section 10.1(a) for breaches of representations and provided further that warranties shall not exceed an amount equal to one million two hundred twenty-five thousand dollars ($1,225,000) (the “Indemnity Cap”) and, absent Fraud, Buyer shall only have recourse to Sellers for any such breaches up to the Indemnity Cap. Notwithstanding anything to the contrary in the case of any inaccuracy in or breach of any Company Fundamental Representationthis Agreement, the Seller Deductible and Indemnity Cap shall be directly liable to not affect or otherwise limit any claim made or available under the Buyer Indemnified Persons to R&W Insurance Policy.
(b) For the extent such Damages are not covered by the Indemnification Insurance Policy for avoidance of doubt, any reason other than the lack of good faith efforts Losses suffered by the Buyer Indemnified Persons Parties from any and all Excluded Claims shall not be subject to seek recovery thereunder and comply with the terms and conditions thereof (including Deductible or the deductible provided for thereinIndemnity Cap; provided, notwithstanding anything to the contrary set forth in this Agreement, the coverage limit being exceeded or coverage being denied), up to an aggregate amount equal to that shall be payable by Sellers for Excluded Claims shall in no event exceed ten percent (10%) of the Purchase Price actually less any amounts paid from the Escrow Amount; and, provided further, that in no event shall any Voting Trust certificate holder be liable or responsible for indemnification claims under this Agreement in an amount in excess of the portion of the Purchase Price received by such Voting Trust certificate holder.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Seller pursuant Indemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery), provided that this Section 10.3(c) shall not apply to this Agreementthe R&W Insurance Policy except to the extent that the amount of insurance proceeds received by the Buyer (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery) are in excess of the retention amount. The Indemnified Party shall use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no Indemnified Party shall be required to commence or engage in litigation or initiate any other Action against any insurance carrier.
(bd) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to mitigate the breach that gives rise to such Loss.
(e) The amount of any indemnity provided under this ARTICLE 10, other than indemnity with respect to claims which are not subjected to the Deductible or the Indemnity Cap, shall be reduced (but not below zero) by the amount of any actual net reduction in cash payments for Taxes realized by the Indemnified Parties as a result of the Losses giving rise to such indemnity claim.
(f) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Sellers shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive have any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or liability for any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value otherwise indemnifiable Loss to the extent that the matter giving rise to such diminution of value is Loss had been reserved for in the probable and reasonably foreseeable result of Company Financial Statements or the applicable breach of a representation, warranty, covenant Closing Statement or agreement hereunder, (ii) the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Estimated Purchase Price pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 1.4.
(g) Seller makes no representations or warranties regarding For the purposes of determining the amount or availability of any net operating lossLosses suffered by any Buyer Indemnified Parties, capital lossthe representations, tax credit carryover warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or other Tax asset or liability Material Adverse Effect qualification therein.
(h) Notwithstanding anything to the contrary contained in this Agreement, none of the Acquired Companies parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any multiple, consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity or statutory damages relating to the breach, except to the extent such damages are actually awarded to a third Person.
(i) In addition to the other limitations contained in this Agreement, the Sellers obligation for Pre-Closing Taxes shall not include any taxable period Taxes (and related Losses) to the extent arising from or portion thereof) beginning after relating to the ClosingReorganization.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tegna Inc)
Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything in this Agreement to the contrary, criminal activity neither party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller other party with respect to any such Damagesclaim for any breach of a representation or warranty, whether or not for the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to covenant contained in this Agreement, unless notice of the claim is given within the relevant survival period specified in Section 10.1.
(b) Notwithstanding anything in this Agreement to the contrary hereincontrary, but except for Damages resulting from Intentional Fraudas otherwise provided in this subsection (b) and Schedule 10.5, criminal activity or willful breaches Sellers shall not be liable to Buyer in respect of covenants, any indemnification hereunder except to the extent that (i) the aggregate liability amount of losses of Buyer, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Seller for all Damages under Section 7.2(aEnvironmental Threshold Amount (such excess being the "Excess Amount") shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability amount of Buyer for all Damages under Section 7.2(blosses of Buyer, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, is less than the excess of Fifty Million Dollars) shall not exceed the aggregate Purchase Price actually paid ($50,000,000) over any amounts expended by the Buyer pursuant to Section 6.15 (as aggregated with the Multi-Stations as set forth therein), or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this AgreementSection 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein.
(c) The parties hereto expressly waive Notwithstanding any claim other provision of this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of shall a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent for such Damages were taken into account in the calculation party's consequential or punitive damages, regardless of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim for indemnification hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. (ai) Except Seller shall not be liable to indemnify Buyer for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages based upon, arising out of, or otherwise in respect of the matters set forth in Section 15(a)(i) hereof once the aggregate amount of Damages actually paid by Seller to the Buyer Group with respect to such claims exceeds Two Million Dollars ($2,000,000); provided, however, that the limitation contained in this clause shall not apply to any Damages based upon, arising out of, or otherwise in respect of any falsity, breach or inaccuracy of Seller's representation and warranty with regard to title to the Assets contained in Section 5(e).
(ii) Seller shall not be liable to indemnify Buyer for which any Damages based upon, arising out of or otherwise in respect of the matters set forth in Section 15(a)(i) hereof, except to the extent that the aggregate amount of Damages exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold Amount"); provided, however, that once the Threshold Amount has been exceeded the Seller shall be liable pursuant to Section 7.2(a)(ifor the entire amount of such Damages, including the Threshold Amount.
(iii) The amount of any Damages for which indemnification is provided under this Agreement shall be satisfied solely net of any amounts recovered or recoverable by recovery by Buyer the Indemnified Party from third parties (including, without limitation, amounts recovered or recoverable under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller insurance policies) with respect to any such Damages, whether or not the entirety of any such Damages is covered by or other liability. Seller and Buyer, as appropriate, shall, or shall cause each Indemnified Party to, use its reasonable best efforts to pursue promptly any claims or rights it may have against all third parties which would reduce the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and for which indemnification is provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to under this Agreement.
(biv) Notwithstanding anything Neither Seller nor Buyer shall have any obligation to indemnify the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages other or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification other persons under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesagainst, or (ii) for otherwise have any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability under this Agreement with respect to, lost profits or reserve relating to such matterconsequential damages.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Sale Agreement (American Mobile Satellite Corp)
Certain Limitations. The indemnification provided for in Section 11.2 shall be subject to the following limitations:
(a) Except Seller Indemnifying Parties shall not be liable to the Buyer Indemnified Parties for claims arising from Intentional Fraudindemnification under Section 11.2(a) and (e) until the aggregate amount of all Losses in respect of indemnification under Section 11.2(a) and (e) exceeds $100,000 (the “Basket”), criminal activity in which event Seller Indemnifying Parties shall only be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Basket.
(b) The aggregate amount of all Losses for which the Seller Indemnifying Parties shall be liable pursuant to Section 7.2(a)(i11.2(a) and (e) shall be satisfied solely by recovery by Buyer under not exceed $3,800,000.
(c) Notwithstanding the Indemnification Insurance Policy foregoing, the limitations set forth in Sections 11.4(a) and Buyer will have no recourse against the Seller (b) shall not apply to Losses based upon, arising out of actual fraud or arising out of, with respect to any such Damages, whether or not the entirety by reason of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) inaccuracy in the Seller shall be directly liable to the Buyer Indemnified Persons Fundamental Representations.
(d) Except for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)actual fraud, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the all Losses for which Seller Indemnifying Parties shall be directly liable pursuant to the Buyer Indemnified Persons to the extent such Damages are Section 11.2(a) shall not covered by the Indemnification Insurance Policy exceed $19,000,000.
(e) Except for actual fraud, no Seller Indemnifying Party shall be liable for any reason other than the lack Losses pursuant to Section 11.2 in excess of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the such Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Indemnifying Party and in no event will any Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only Party be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) liable for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty or actual fraud committed by any other Seller Indemnifying Party. For the avoidance of doubt, even in the event of actual fraud, no Seller indemnifying Party that has not committed fraud shall be liable for any Losses in excess of the Purchase Price actually received by such Seller Indemnifying Party.
(f) Notwithstanding anything herein to the contrary, from and after the Closing, any claims for indemnification under Section 11.2 shall, subject to the foregoing provisions of this Section 11.4, be satisfied (i) first, to the extent recovery is available under the Escrow Fund, pursuant to the Escrow Agreement, (ii) second, by offset against any amounts of Earn-Out Payment that become due (but have not already been paid) pursuant to Section 2.5, , and (iii) third, to the amount extent recovery is not available by offset of any Damages resulting therefromEarn-out Payment or under the Escrow Fund, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardeddirectly by Seller Indemnifying Parties.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The liability of Asset Seller, Selling Shareholders or Buyer for claims under this Agreement shall be limited by the following:
(a) Except for No claim or claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable asserted by a Seller Indemnitee or Buyer Indemnitee pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety provisions of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that this Article 11 (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages other than a claim pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”clause 2.05A), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 50,000 (the “Indemnification Deductible”); and provided further that Australian) in the case of any inaccuracy in aggregate, whereupon such Buyer Indemnitee or breach of any Company Fundamental Representation, the Seller Indemnitee shall be directly liable entitled to assert one or more claims hereunder for the full amount of its Damages as to which such claim or claims are asserted, including the first $50,000 (Australian). Notwithstanding the foregoing, indemnification for Damages pursuant to the Buyer Indemnified Persons to Excluded Matters and the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack matters described in clauses (iii) through (viii) of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 11.02(a) and comply with the terms and conditions thereof clauses (including the deductible iii) of Section 11.03(a) shall be provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementfrom first dollar without a threshold.
(b) Notwithstanding anything to the contrary herein, except for The parties hereto agree that Buyer may set off Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages against Earn-Out Payments and payments under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement2.05A(c)(ii).
(c) The parties hereto expressly waive agree that if this Agreement terminates prior to Closing for any reason, each party must bear its own costs of negotiating this Agreement and all investigations and due diligence relating to this Agreement, and in no circumstances can any party claim to consequential, punitive damages for loss of profit or indirect, lost profits, diminution in value, special, exemplary or similar other consequential damages or from any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsother party.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only The Buyer will not be entitled to recover once for such make any claim in respect of, and acknowledges the warranties in Section 4 and 5 are given subject to, all matters in relation to which the Buyer (including its directors, employees and consultants) has actual knowledge at or group prior to the signing of related claims notwithstanding this Agreement that such claim or group the warranties have been breached. The Buyer must notify the Selling Shareholders if it has actual knowledge of related claims may constitute any matter which is a breach of two warranty by the Selling Shareholders or more representations and/or warranties set forth in Asset Seller at the date of this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Channell Commercial Corp)
Certain Limitations. The indemnification provided for in Section 13.01 shall be subject to the following limitations:
(a) Except as expressly set forth in this Section 13.03(a), Seller’s liability for any Breach of any representation or warranty in this Agreement (other than Fundamental Representations) or in any document executed by Seller (or the Seller on behalf of Seller) pursuant to this Agreement, or in any other instruments delivered at Closing shall, subject to the limitations of survival set forth herein, be limited to claims arising from Intentional Fraudin excess of One Hundred Fifty Thousand Dollars ($150,000.00) (the “Basket Amount”) in the aggregate, criminal activity with respect to all claims, and after the Basket Amount has been reached, Purchaser shall be entitled to make a claim for indemnification for all claims with respect to the Breach of any representations or willful breaches warranties back to dollar zero.
(b) Except with respect to the Fundamental Representations, the aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i) 13.01 shall be satisfied solely by recovery by Buyer under not exceed 10% of the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety Purchase Price. The aggregate amount of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) all Losses for which the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant purchase to Section 7.2(a)(i) 13.01 in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply connection with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to Fundamental Representations shall not exceed the Purchase Price actually received Price.
(c) Payments by the Seller pursuant to Section 13.01 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Purchaser (or the Company) in respect of any such claim. The Purchaser shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(bd) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received Payments by the Seller pursuant to this Agreement, Section 13.01 in respect of any Loss shall be reduced by an amount equal to (i) any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Purchaser and (ii) any reserves or accruals on the aggregate liability books of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by Company as of the Buyer pursuant Closing in respect of such matter if and to this Agreementthe extent such reserves or accruals were reflected in the Closing Statement or the Financial Statements.
(ce) The parties hereto expressly waive In no event shall the Seller be liable to the Purchaser for any claim to punitive, incidental, consequential, punitive special or indirectindirect damages, lost profitsincluding loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution in value, special, exemplary or similar damages of value or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been The Purchaser shall take, and cause its Affiliates to take, all reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Loss upon becoming aware of any Damages resulting therefromevent or circumstance that would be reasonably expected to, all qualifications or exception in any representation or warranty relating to or referring does, give rise thereto, including incurring costs only to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedminimum extent necessary to remedy the breach that gives rise to such Loss.
(g) The Seller makes no shall not be liable under this Article XIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations or warranties regarding the amount of Seller contained in this Agreement if Purchaser had knowledge of such inaccuracy or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after breach prior to the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dream Finders Homes, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Other than with respect to any such DamagesLosses resulting from Fraud or a breach of Fundamental Representations, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) Seller and the Seller Related Parties shall not be directly liable to the Buyer Indemnified Persons Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $796,250 (the “Deductible”), in which event Seller and Seller Related Parties in the aggregate shall be required to pay or be liable only for all such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Deductible. Other than with respect to Losses resulting from Fraud or a breach of Fundamental Representations, (i) any amount of Losses payable to any Buyer Indemnitee in respect of indemnification under Section 8.02(a) shall be paid solely and exclusively from the Indemnification Deductible up Escrow Fund in accordance with the terms hereof and of the Escrow Agreement; and (ii) Seller’s and Seller Related Parties’ liability for indemnification of Losses pursuant to an amount not Section 8.02(a) shall be limited, in the aggregate, to exceed $250,000 the Indemnification Escrow Fund (the “Cap”), . Notwithstanding anything contained herein to the contrary Seller and (ii) the Seller shall have no Related Parties maximum aggregate liability for indemnification for Losses in respect of indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”8.02(a); and provided further that in the case of any inaccuracy in or , including from a breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason or Article VI (other than Losses resulting from Fraud), shall not exceed, in the lack aggregate, the Base Purchase Price.
(b) Without limiting the effect of good faith efforts any other limitation contained in this Article VIII, for purposes of computing the amount of any Losses incurred by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for thereinIndemnitees under this Article VIII, the coverage limit being exceeded or coverage being denied), up to there shall be deducted an amount equal to the Purchase Price amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received by Buyer Indemnitees in connection with such Losses or any of the circumstances giving rise thereto (it being understood that the Buyer Indemnitees shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements, but the possibility of recovering such amounts shall in no way delay the resolution or payment of any indemnification under this Article VIII), net of costs and expenses incurred by the Buyer Indemnitees in connection with such recoveries. If the Buyer Indemnitees receive any insurance proceeds, indemnification payments, contribution payments or reimbursements for any Losses subsequent to an applicable indemnification payment under this Article VIII, then such member of the Buyer Indemnitees shall promptly reimburse Seller pursuant to this Agreement.
(b) Notwithstanding anything for any indemnification payment previously made up to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually amount received by the Seller pursuant to this AgreementBuyer Indemnitees, and (ii) the aggregate liability net of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid any expenses incurred by the Buyer pursuant to this AgreementIndemnitees in collecting such amount.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Endo International PLC)
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The Indemnified Party shall take reasonable steps to mitigate any Loss to the extent required by Law.
(b) The maximum aggregate amount of covenants, any Damages all Losses for which the Seller Equityholders shall be liable herein shall not exceed the Total Indemnification Cap.
(c) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, the maximum aggregate amount of all Losses for which Parent, Merger Sub, and/or the Surviving Corporation shall be collectively liable in the aggregate shall not exceed the Total Consideration, less (ii) the aggregate amount of all advances made to the Company by Parent, Liabilities, Earnout Consideration, and Refunded Liability Amounts and any indemnification payments or other Losses, in each case paid by Parent, Merger Sub and the Surviving Corporation as of the applicable date.
(d) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, no Equityholder Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Equityholder Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this Article IX, Equityholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 7.2(a)(i9.04(a) in excess thereof. No Parent Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Parent Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this Article IX, Parent Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.02(a) in excess thereof.
(e) Subject to Section 9.05(d), all Losses for indemnification claims under Section 9.02 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse set-off against the Seller payment of any Earnout Consideration, if applicable, and only to the extent such Earnout Consideration has not yet been paid to Equityholders. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to Section 9.02 out of Earnout Consideration to the extent actually paid to an Equityholder, or to seek indemnification for Losses that exceeds the amount of Earnout Consideration not yet paid to the Equityholders.
(f) None of the limitations set forth herein shall apply to any claim determined by a court of competent jurisdiction or arbitrator to constitute fraud, intentional misrepresentation or willful misconduct. If a court of competent jurisdiction or arbitrator determines that any Equityholder has engaged in fraud, intentional misrepresentation or willful misconduct in connection with this Agreement or any of the Transaction Documents (“Culpable Equityholder”), then none of the limitations set forth in this Section 9.05 shall apply to any Culpable Equityholder. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to this Section 9.05(f) against any Equityholder other than a Culpable Equityholder, or to seek indemnification for Losses that exceeds the amount of Additional Payments unpaid to such non-culpable Equityholder.
(g) The Equityholders shall not be obligated to indemnify any Parent Indemnitee with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Loss to the extent that the amount of such diminution of value is the probable Loss was reflected as a current liability or reserve and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account subtracted in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterfinal Payoff Liabilities.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds $175,000.00 (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i9.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000.00 (the “Cap”). The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 9.02(c) shall not exceed the Purchase Price less any income taxes due thereon, as adjusted for any reduction in Purchase Price pursuant to Section 9.08. Seller may defer payment of any amounts due and payable to Buyer pursuant to this ARTICLE IX for a period of eighteen (ii18) months, provided that such amounts deferred shall not exceed the amount of the income taxes previously paid by Seller related to the Purchase Price that is expected to be refunded to Seller due to the reduction in Purchase Price pursuant to Section 9.08 below.
(b) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i9.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9.03(a) shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 9.04(a) and provided further that in the case Section 9.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company the Fundamental RepresentationRepresentations and Warranties; provided, however, Seller’s aggregate liability for all indemnifiable Losses (except in the case of fraud on the part of Seller in the making of the representations and warranties set forth in this Agreement) shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to exceed an amount equal to the Purchase Price actually received by Price. For the avoidance of doubt, the limitations set forth in this Section 9.04 shall not apply to fraud on the part of Seller pursuant to this Agreement.
(b) Notwithstanding anything to in the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability making of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, representations and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(fd) For purposes of calculating the amount of any Loss pursuant to this ARTICLE IX, but not for purposes of determining (i) whether there has been any misrepresentation an inaccuracy in or breach of a any representation or warranty and (ii) the amount warranty, any inaccuracy in or breach of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating shall be determined without regard to or referring to the terms “material”any materiality, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover Effect or other Tax asset similar qualification contained in or liability of the Acquired Companies in any taxable period (otherwise applicable to such representation or portion thereof) beginning after the Closingwarranty.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Indemnifying Parties shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i7.2(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 7.2(a) exceeds $250,000 1,000,000 (the “Indemnification DeductibleBasket”); and provided further that , in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Indemnifying Parties shall be directly liable to for all such Losses in excess of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementBasket.
(b) Notwithstanding anything Absent fraud or intentional breach by the Parties prior to the contrary hereinCombination Merger Effective Time, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability amount of Losses with respect to which the Seller for all Damages Indemnitees may be entitled under Section 7.2(a) 7.2 shall not exceed the aggregate Purchase Price Escrow Amount and in no event will any of the Indemnifying Parties be liable for an amount that is greater than the Surge Merger Consideration actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch Indemnifying Parties.
(c) The parties hereto expressly waive Payments by the Indemnifying Parties pursuant to Section 7.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received (or Surviving Surge, Surviving Motor, ParentCo or any of their respective Affiliates) in respect of any such claim.
(d) Payments by the Indemnifying Parties pursuant to Section 7.2 in respect of any Loss shall be reduced by an amount equal to any Tax benefit actually received by the Indemnitees as a result of such Loss in the year in which the Loss was incurred (such Tax benefit, if any, being determined for such year on a “with or without” basis).
(e) To the extent required by Law, the Indemnitees shall use their commercially reasonable efforts to mitigate any Losses for which the Indemnitees are entitled to indemnification under Section 7.2, including with respect to submitting to a relevant insurance provider a claim for recovery; provided, that no Indemnitee shall be required to litigate or pursue any other Proceedings against an insurance provider.
(f) Any Losses for indemnification under Section 7.2 shall be determined without duplication of recovery by reason of the set of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or undertaking, or one or more rights to indemnification.
(g) Except with respect to those actually awarded and paid on account of a Third Party Claim, in no event shall a Person be liable for any(i) punitive or exemplary damages or (ii) incidental, consequential, punitive special or indirectindirect damages, lost profitsloss of future revenue or income, loss of business reputation or opportunity, diminution in value, special, exemplary or similar damages value or any damages based on any type of multiple, except, in each case, (i) except in the event case of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, clause (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person), or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account damages are reasonably foreseeable in connection with the calculation of event that gave rise thereto or the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) matter for any Damages relating to any matter to the extent that there which indemnification is included in the Interim Financial Statements a specific liability or reserve relating to such mattersought hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Nothing in this Agreement shall be liable pursuant deemed to Section 7.2(a)(i) require any Sublessor Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or TowerCo Parent in respect of a breach of any Real Estate Representation by any Sublessor Entity shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that cause (i) such Sublessor Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.5, until the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Final Closing Date, and or (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until Site as to which such Real Estate Representation is breached to be, at the aggregate amount applicable Sublessor Entity's election, an Excluded Site or to defer the Closing of such Damages exceeds $250,000 (Site to a later Closing Date, provided that the “Indemnification Deductible”); and provided further that in the case failure of any inaccuracy in such deferred Site to become an Included Site on or breach of any Company Fundamental Representation, the Seller shall be directly liable prior to the Buyer Indemnified Persons to the extent such Damages are Final Closing shall not covered by the Indemnification Insurance Policy for constitute a default under this Agreement or give TowerCo Parent or TowerCo any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementremedy.
(b) Notwithstanding anything to the contrary contained herein, except for Damages resulting from Intentional Fraudno Sublessor Entity shall have any obligation under this Section 13 to TowerCo Indemnitees with respect to the breach of representations, criminal activity warranties, covenants or willful breaches of covenantsagreements by SBCW, (i) unless, until and only to the extent that the aggregate liability of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis one percent (1%) of the Seller aggregate amount of all Rent having been paid to SBCW or any other Sublessor Entity under the Sublease as of the date on which the claim for all Damages under Section 7.2(a) shall not exceed indemnification arose (the aggregate Purchase Price actually received by the Seller pursuant to this Agreement"Deductible Amount"), and (ii) then only to the aggregate liability extent of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch excess amount.
(c) The parties hereto expressly waive any claim Anything in this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary notwithstanding, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to shall any Sublessor Entity be liable under this Agreement for any indemnification by an Indemnifying Person obligation pursuant to this Article VII with respect to any claim or group Section 13 in excess of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation 25% of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the aggregate amount of any Damages resulting therefrom, all qualifications the Rent having been paid to SBCW or exception in any representation or warranty relating to or referring to such Sublessor Entity under the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability SBCW Sublease on account of the Acquired Companies in any taxable period Site(s) owned by such Sublessor Entity as of the date on which the claim for indemnification arose (or portion thereof) beginning after the Closing"Maximum Indemnification").
Appears in 1 contract
Certain Limitations. The liability of the Vendors or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendors shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendors, except for Damages with respect to an amount not which the Buyers Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 12.3 above; and (ii) the Seller Buyers shall have no liability further obligations under this Article XII for indemnification under breaches of representations and warranties of the Buyers, except for Damages with respect to which the Vendors Indemnitee has given the Buyers written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement12.3.
(b) Notwithstanding anything to the contrary herein, except for Buyers Indemnitees shall not be entitled to recover Damages resulting from Intentional FraudVendors pursuant to Section 12.1(a) unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E 150,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, criminal activity or willful breaches of covenantshowever, (i) that at such time as the aggregate liability amount of Damages in respect of the Seller for all Damages under Section 7.2(a) indemnity obligations of Vendors shall not exceed the aggregate Purchase Price actually received by Vendors Indemnification Threshold, Vendors shall thereafter indemnify any of the Seller pursuant to this Agreement, Buyers Indemnitees from all and (ii) the aggregate liability against all Damage in excess of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementequivalent E 10,000.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary herein, in each case, (i) in the event absence of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable fraud or willful breach of a representationthis Agreement (for which there shall be no limitation), warranty, covenant in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Buyers Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or agreement hereunder, (ii) to incurred by any Buyers Indemnitee exceed the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event maximum amount of Intentional Fraud, criminal activity or willful breaches of covenantsE 100,000,000.
(d) An Indemnified Person entitled Notwithstanding anything to indemnification by an Indemnifying Person pursuant to this Article VII with respect to the contrary contained herein, any claim or group of related claims shall only be entitled for indemnity made by any Buyer Indemnitee relating to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Taxes is subject to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent condition that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.:
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations:
(a) Except EWI and EWD will not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) or under Section 8.02(a) of the Asset Purchase Agreement with respect to any representations or warranties of EWI or the Company hereunder or EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement and excluding Section 3.15(c) and (d) which, criminal activity for the avoidance of doubt, will be subject to the Basket) until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWI and EWD will only be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket.
(b) The aggregate amount of all Losses for which the Seller shall EWD and EWI will be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under and Section 8.02(a) of the Indemnification Insurance Policy and Buyer Asset Purchase Agreement will have no recourse against not exceed the Seller following: (i) with respect to any such Damagesrepresentations or warranties of EWI or the Company hereunder or of EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement), whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000 (the “Cap”), and (ii) with respect to the Seller Special Representations (as defined herein and in the Asset Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Asset Purchase Agreement, $750,000. In no event shall have no liability EWI and EWD be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the Transaction Documents in excess of $17,000,000.
(c) Buyer will not be liable to EWI Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and BHEP will not be liable to “EWD Indemnitees” for indemnification under Section 8.03(a) of the Asset Purchase Agreement with respect to any representations or warranties of Buyer hereunder or BHEP under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement) until the aggregate amount of all such Damages Losses exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket, in the case of any inaccuracy which event Buyer will be required to pay or be liable for all such Losses in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsBasket.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person The aggregate amount of all Losses for which Buyer will be liable pursuant to this Article VII Section 8.03(a) hereunder and for which BHEP will be liable pursuant to Section 8.03(a) of the Asset Purchase Agreement (i) other than the Special Representations (as defined herein and in the Asset Purchase Agreement) will not exceed the Cap and (ii) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Special Representations (as defined herein and in this the Asset Purchase Agreement), will not exceed $17,000,000.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect The determination of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding Losses for purposes of this Article VIII will take into account the amount or availability of insurance proceeds payable with respect thereto pursuant to any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closinginsurance policy.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 7.02 and Section 7.03 shall be subject to the following limitations:
(a) Except with respect to claims for claims arising from Intentional Fraud, criminal activity inaccuracies or willful breaches of covenants, any Damages Fundamental Representations (for which no such limitation shall apply), Sellers shall not be liable to the Seller Buyer Indemnitees for indemnification under Section 7.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.02(a) exceeds $59,000 (the “Basket”), in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.2(a)(i7.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 1,350,000 (the “Cap”), and (ii) . Sellers’ maximum aggregate liability to the Seller shall have no liability Buyer Indemnitees for indemnification under Section 7.2(a)(i7.02(a), for inaccuracies or breaches of Fundamental Representations, or Section 7.02(b), for any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed the Purchase Price.
(b) unless and Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the Seller Indemnitees for indemnification under Section 7.03(a), for inaccuracies or breaches of Fundamental Representations, or Section 7.03(b), for any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed the Purchase Price.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 7.04(a) and provided further that Section 7.04(b) shall not apply in the any case of fraud.
(d) For purposes of Section 7.02(a), any Losses resulting from an inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of shall be determined without regard to any Damages resulting therefrommateriality, all qualifications Material Adverse Effect or exception other similar qualification contained in or otherwise applicable to any such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Kingsway Financial Services Inc)
Certain Limitations. Notwithstanding anything in this Agreement to the contrary,
(a) Except for claims arising from Intentional Fraud, criminal activity no party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim for any breach of a representation or group warranty, unless notice of related claims the claim is given within twelve months after the Closing Date;
(b) PCC shall only not be entitled required to indemnify or otherwise be liable to DCI or Purchaser for any breach of a representation or warranty, unless the Losses of DCI or Purchaser from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event PCC shall be required to indemnify DCI and Purchaser for all such Losses (subject to the other limitations in this Agreement);
(c) DCI shall not be required to indemnify or otherwise be liable to PCC or Seller for any breach of a representation or warranty unless the Losses of PCC and Seller from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event DCI shall be required to indemnify PCC and Seller for all such Losses (subject to the other limitations in this Agreement);
(d) PCC shall not be required to indemnify or otherwise be liable to DCI or Purchaser for any breach of a representation or warranty, to the extent that the Losses of DCI and Purchaser from all such breaches exceed in the aggregate Twenty Million Dollars ($20,000,000);
(e) DCI shall not be required to indemnify or otherwise be liable to PCC or Seller for any breach of a representation or warranty to the extent that the Losses of PCC and Seller from all such breaches exceed in the aggregate Twenty Million Dollars ($20,000,000);
(f) PCC shall not be required to indemnify or otherwise be liable to DCI or Purchaser for any breach of Section 3.9 unless PCC is able to recover once for and does recover the amount of the Loss from such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this from Landmark pursuant to the Landmark Agreement.
(eg) No Buyer Indemnified Person shall the amount of Losses for which a Claimant may be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) but not the amount of Losses suffered by a Claimant for purposes of the foregoing provisions of this Section 9.5) shall be determined on an after-tax basis, after giving effect to any Damages resulting therefrom, all qualifications or exception in tax benefit arising from the incurring of any representation or warranty relating to or referring Loss and any tax detriment arising from the indemnification thereof;
(h) indemnification of Losses under this Agreement shall be net of any insurance proceeds actually paid to the terms “material”Claimant with respect to the event giving rise to such Loss, “materiality”, “Material Adverse Effect”, “in all material respects” or but no Claimant shall have any similar qualification, term or phrase shall obligation under this Agreement to make any claim under any insurance policy that may be disregardedapplicable to such event.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Purchaser Indemnitees for claims arising from Intentional Fraudindemnification under Section 11.2(a) until the aggregate amount of all Damages in respect of indemnification under Section 11.2(a) exceeds $2,531,250 (the “Indemnification Threshold”), criminal activity and once the Indemnification Threshold has been exceeded, Seller shall only be required to pay or willful breaches be liable for all such Damages in excess of covenants, any the Indemnification Threshold. The aggregate amount of all Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i11.2(a) shall be satisfied solely by recovery by Buyer not exceed an amount which is, together with amounts recovered under the Indemnification R&W Insurance Policy and Buyer will have no recourse against the Seller with respect to any such DamagesPolicy, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 101,250,000 (the “Cap”), and .
(iib) Purchaser shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i11.3(a) unless and until the aggregate amount of all Damages in respect of indemnification under Section 11.3(a) exceeds the Indemnification Threshold, and once the Indemnification Threshold has been exceeded, Purchaser shall only be required to pay or be liable for all such Damages exceeds $250,000 in excess of the Indemnification Threshold. The aggregate amount of all Damages for which Purchaser shall be liable pursuant to Section 11.3(a) shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 11.4(a) and provided further that in the case Section 11.4(b) shall not apply to Damages based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company representation or warranty of any Fundamental RepresentationRepresentations; provided, however, the Seller shall aggregate amount of Damages that may be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered recovered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded Purchaser Indemnitees or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages Indemnitees under Section 7.2(a11.2(a) or under Section 11.3(a) arising from any breach of, or misrepresentation or inaccuracy in, any Fundamental Representations shall not exceed an amount which is, together with amounts recovered under the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptR&W Insurance Policy, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result excess of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSuper Cap.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII XI, any inaccuracy in or breach of any representation or warranty, and the calculation of Damages with respect thereto, shall be determined without regard to any claim materiality, Seller Material Adverse Effect or group of related claims shall only be entitled Purchaser Material Adverse Effect or other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Person Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 9.1.
(f) Except in the case of fraud by the Seller, in no event shall the Purchaser Indemnitees have the right under this Agreement to recover from Seller any amount which is, together with amounts recovered under the R&W Insurance Policy, in excess of the Super Cap.
(g) All Damages for which any Seller Indemnitee or Purchaser Indemnitee would otherwise be entitled to indemnification under this Agreement Article XI shall be reduced by recovery under the R&W Insurance Policy and other third-party recoveries actually received by such Seller Indemnitee or Purchaser Indemnitee in respect of any Damages incurred by such Seller Indemnitee or Purchaser Indemnitee (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such recovery). In the event any Seller Indemnitee or Purchaser Indemnitee is or may be entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Damages for which such Seller Indemnitee or Purchaser Indemnitee is entitled to indemnification pursuant to this Article XI, such Seller Indemnitee or Purchaser Indemnitee shall use commercially reasonable efforts to obtain, receive or realize such proceeds, benefits, payments or recoveries; provided, however, that “commercially reasonable efforts” with respect to (i) the R&W Insurance Policy shall not include an obligation to seek “recovery” from Purchaser’s policies or programs of insurance, and (ii) any other Person shall not (x) include the commencement of any Legal Proceeding in respect of such recovery, (y) require any prolonged, continuous or repetitive efforts, and (z) include an obligation to seek recovery from any insurance carrier or program. To the extent permissible under applicable Governmental Rules and Contracts, any unsuccessful claim for recovery notwithstanding commercially reasonable efforts against a third-party that is not a customer or vendor, or a potential customer or vendor of such Seller Indemnitee or Purchaser Indemnitee, as applicable, shall be assigned in subrogation upon collection under this Agreement of the full amount of applicable Damages claimed. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by a Seller Indemnitee or Purchaser Indemnitee subsequent to receipt by such Seller Indemnitee or Purchaser Indemnitee of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, corresponding refunds shall be made promptly by the relevant Seller Indemnitee or Purchaser Indemnitee of all or the relevant portion of such indemnification payment (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such insurance proceeds, deductibles and any increased premium amounts attributable to such claim).
(h) The Seller Indemnitees and Purchaser Indemnitees shall not be entitled to recover more than once for the same Damages.
(i) No indemnity may be sought hereunder in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter but only to the extent that there the amount of such Damages) is included in the Interim Financial Statements a specific liability or reserve relating to calculations of the Net Working Capital, as finally determined, such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) that the party claiming indemnification received Purchase Price credit for such amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedDamages.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller Rentech and Sellers shall be liable pursuant to Section 7.2(a)(i8.2(a), Section 8.2(b) shall be satisfied (solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether breach or non-fulfillment of Section 6.1) and Section 8.2(c) shall not exceed the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsedHoldback Amount; provided that such limitation shall not act as a limitation in any way upon the right of the Buyer Indemnitees to obtain recovery under the Buyer Insurance Policy).
(ib) the Seller No amounts shall be directly liable to the Buyer Indemnified Persons for such Damages payable pursuant to Section 7.2(a)(i8.2(a) (other than in respect of Fundamental Representations) or Section 8.2(b) (solely with respect to any breach or non-fulfillment of Section 6.1) unless and until the Buyer Indemnitees shall have suffered Losses in excess of $225,000 (the “Deductible”) in the aggregate, after which point the Buyer Indemnitees shall be entitled to recover only Losses with respect to claims for indemnification pursuant to Section 8.2(a) in excess of the Indemnification Deductible up Deductible.
(c) The aggregate amount of all Losses for which Buyer shall be liable pursuant to an amount Section 8.3(a) shall not exceed the Holdback Amount.
(d) No amounts shall be payable pursuant to exceed $250,000 Section 8.3(a) (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iother than in respect of Fundamental Representations) unless and until the aggregate amount Seller Indemnitees shall have suffered Losses in excess of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that Deductible in the case of any inaccuracy in or breach of any Company Fundamental Representationaggregate, after which point the Seller Indemnitees shall be directly liable entitled to recover only Losses with respect to claims for indemnification pursuant to Section 8.3(a) in excess of the Deductible.
(e) In any claim for indemnification under this Agreement, none of Rentech, Sellers or Buyer Indemnified Persons shall be required to indemnify any Person for Losses that constitute punitive or exemplary damages, lost profits, diminution of value, consequential damages, special damages, incidental damages, indirect damages or damages based on a “multiple of profits,” “multiple of earnings” or “multiple of cash flows”; provided, however, that this limitation shall not apply if, and solely to the extent that, an Indemnified Party is entitled to indemnification for Losses from exemplary or punitive damages payable in connection with a Third Party Claim.
(f) Any Loss subject to indemnification under Section 8.2 shall be satisfied:
(i) If such Damages are not Loss may be covered by the Indemnification Buyer Insurance Policy for any reason other than Policy, to the lack of good faith efforts extent possible, first from the Buyer Insurance Policy;
(ii) If such Loss is covered by the Buyer Insurance Policy, but is not yet payable to a Buyer Indemnified Persons Party solely because of a failure to seek recovery thereunder and comply with satisfy the terms and conditions thereof retention amount under the Buyer Insurance Policy, subject to the Deductible, from the Holdback Amount;
(including iii) If such Loss is not potentially covered by the deductible provided for thereinBuyer Insurance Policy, subject to the coverage limit being exceeded or coverage being denied)Deductible, up to from the Holdback Amount in an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementfull amount of such Loss.
(bg) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to contained in this Agreement, and (ii) the aggregate liability no amounts shall be payable as a result of Buyer for all Damages any claim in respect of a Loss arising under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii8.2(a) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) any matter forming the basis for such Loss was taken into consideration in the event computation of Intentional FraudClosing Working Capital, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall but only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account it resulted in the calculation a reduction of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (ai) Except In no event shall any Buyer Indemnitee be entitled to indemnification for any Losses arising from a claim for indemnification pursuant to Section 6.2(a)(i) (A) for any claim or series of related claims arising from Intentional Fraud, criminal activity or willful breaches the same set of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller facts with respect to any such Damages, whether or which the aggregate amount of Losses does not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (50,000, which Losses shall not count towards the “Cap”)Deductible, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iB) unless and until the aggregate amount of such Damages all Losses under all claims under Section 6.2(a)(i) exceeds $250,000 500,000 (the “Indemnification Deductible”); and provided further that , at which time the Sellers shall only be liable for any Losses in excess of the Deductible.
(ii) In no event shall the aggregate Liability for indemnification by the Sellers pursuant to Section 6.2(a)(i) exceed in the case of any inaccuracy aggregate $7,500,000 and in or breach of any Company Fundamental Representation, no event shall the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered aggregate Liability for indemnification by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller Sellers pursuant to this AgreementAgreement exceed the Purchase Price.
(biii) Notwithstanding anything [Reserved].
(iv) In no event shall any Seller Indemnitee be entitled to indemnification for any Losses arising from a claim for indemnification pursuant to Section 6.2(b)(ii) (A) for any claim or series of related claims arising from the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches same set of covenants, (i) facts with respect to which the aggregate liability amount of Losses does not exceed $50,000, which losses will not count toward the Deductible and (B) unless and until the aggregate amount of all Losses under all claims under Section 6.2(b)(ii) exceeds the Deductible, at which time Buyer shall only be liable for any Losses in excess of the Seller for all Damages under Section 7.2(aDeductible.
(v) In no event shall not exceed the aggregate Purchase Price actually received Liability for indemnification by the Seller Buyer pursuant to this Agreement, and (iiSection 6.2(b)(ii) exceed in the aggregate liability of Buyer for all Damages under Section 7.2(b) $7,500,000 and in no event shall not exceed the aggregate Purchase Price actually paid Liability for indemnification by the Buyer pursuant to this AgreementAgreement exceed the Purchase Price.
(cvi) The parties hereto expressly waive any claim Notwithstanding the foregoing, the limitations set forth in Section 6.2(c)(i) to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (iv) in the event of diminution of value shall not apply to the extent that such diminution the Indemnified Party’s Losses result from or arise out of value is fraud by the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsIndemnifying Party.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Master Transaction Agreement (Hallmark Financial Services Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $200,000 (the "Basket"), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraudthe first dollar; provided that the Basket shall not apply to Losses related to (i) any inaccuracy or breach of the representations and warranties contained in Section 3.01, criminal activity Section 3.02, Section 3.11, or Section 3.22 or (ii) the fraudulent or willful breaches breach of covenants, any Damages representation or warranty of Sellers or the Company. The aggregate amount of all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.02(a) or Section 8.02(c) shall be satisfied solely by recovery by Buyer under not exceed 20% of the Indemnification Insurance Policy Purchase Price; provided, however, in the case of Losses due to an inaccuracy in or breach of the representations and Buyer will have no recourse against warranties contained in Section 3.01, Section 3.02 or Section 3.22 or due to the Seller with respect to any such Damages, whether fraudulent or not the entirety willful breach of any such Damages is covered representation or warranty given by the Indemnification Insurance Policy Company or whether Sellers, Sellers shall be liable for such Losses up to 100% of the Purchase Price. The aggregate amount of Losses for which Sellers shall be liable pursuant to Section 8.02(b) shall not exceed 100% of the Purchase Price. The aggregate amount of Losses for which Sellers shall be liable pursuant to Section 8.02(d) shall not exceed $15,000,000. Notwithstanding the foregoing, there shall be no limit on the liability of a Seller who commits (or not causes the Indemnification Insurance Policy Company to commit) or has expired, been terminated knowledge of any fraudulent or lapsed; provided willful breach of any representation or warranty. The parties agree that (i) the no individual Seller shall be directly required to indemnify Buyer Indemnitees in excess of his or her proportionate ownership of the Shares (as of Closing).
(b) Buyer shall not be liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Sellers Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar; provided that the Basket shall not apply to Losses related to (i) any inaccuracy or breach of the “Indemnification Deductible”); representations and provided further that warranties contained in Section 4.01 or (ii) the case fraudulent or willful breach of any representation or warranty of Buyer. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03 shall not exceed 100% of the Purchase Price with respect to Losses due to an inaccuracy in or breach of the representations and warranties contained in Section 4.01 or due to the fraudulent or willful breach of any Company Fundamental Representationrepresentation or warranty given by Buyers; provided, the Seller however, there shall be directly liable to no limit on the liability of Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for if Buyer commits or has knowledge of any reason other than the lack fraudulent or willful breach of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded any representation or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementwarranty.
(bc) Other than for Third Party Claims, in no event shall any Indemnifying Party be liable to any Indemnified Party, and in no event shall any claim for indemnification under this Article VIII be made, for incidental, indirect, consequential, special, punitive, exemplary or other such damages by reason of the breach of any representation, warranty, covenant, agreement or indemnity contained herein.
(d) Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that the Indemnified Party shall not be required to incur any out of pocket costs to remedy the breach that gives rise to such Loss.
(e) With respect to Third Party Claims for infringement of patent rights that occur after Closing, Indemnitees’ obligations for Losses related to the sale of Company Products by the Company or the Buyer shall be limited to Losses related to the sale of product and services by the Company prior to Closing. For the avoidance of doubt where the Company has no knowledge of third party patent rights prior to closing, any Losses or portion of Loss caused by infringement of the third party patent rights as a result of making, using, selling, offering for sale, and/or importing products or service by the Company and/or Buyer after Closing is the sole responsibility of the Buyer. Notwithstanding anything to the contrary hereincontained in this Section 8.04(e), except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under nothing in Section 7.2(a8.04(e) shall limit or otherwise diminish Sellers obligation to pay all costs and expenses required to litigate or otherwise resolve a claim regarding infringement of patent rights whether occurring prior or after closing, including but not exceed the aggregate Purchase Price actually received by the Seller pursuant limited to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementreasonable attorneys’ fees.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for Indemnification claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant reduced, by and to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damagesextent, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller that an indemnitee shall be directly liable to the Buyer Indemnified Persons for realize any tax benefit as a result of such Damages pursuant to Section 7.2(a)(iLosses has received proceeds under insurance policies, risk sharing pools, or similar arrangements (other than self-insurance) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)specifically as a result of, and in compensation for, the subject matter of an indemnification claim by such indemnitee, or (ii) the Seller shall have no amount subject to indemnification is reserved against or reflected as a liability for indemnification under Section 7.2(a)(i) unless and until on the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementClosing Balance Sheet.
(b) Notwithstanding Purchaser will not be entitled to indemnification pursuant to SECTION 10.2 and Seller will not be entitled to indemnification pursuant to SECTION 10.3 with respect to any breach or misrepresentation of any representation or warranty until such time as its respective aggregate right to such indemnification exceeds $300,000 after which, Purchaser or Seller will be entitled to such indemnification in excess of such $300,000 threshold.
(c) Solely with respect to Losses arising out of any breach of or any inaccuracy in any representation or warranty set forth in this Agreement (except for any breach of or inaccuracy of representations and warranties relating to title and/or ownership of the Acquired Assets, including SECTION 3.6 hereof), and notwithstanding anything in this ARTICLE X to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenantscontrary, (i) (A) subject to SECTION 10.4(C)(I)(B), the aggregate liability amount of the Losses payable by Seller for all Damages under Section 7.2(a) SECTION 10.2 shall not under any circumstances exceed $4,000,000 (it being understood that the first $1,500,000 of Losses payable by Seller under SECTION 10.2 with respect to any breach or inaccuracy in the representations and warranties in SECTION 3.9 shall not be counted against the foregoing $4,000,000 limitation), and (B) the aggregate Purchase Price actually received amount of Losses payable by Seller under SECTION 10.2 with respect to any breach or inaccuracy in the representations and warranties in SECTION 3.9 shall not under any circumstances exceed an amount equal to $5,500,000 less the aggregate Losses, if any, for which Seller pursuant has indemnified the Indemnified Parties in respect of breaches or inaccuracies in representations or warranties which are subject solely to this Agreement, the $4,000,000 limitation in SECTION 10.4(C)(I)(A) and (ii) the aggregate liability amount of Buyer Losses payable by Purchaser under SECTION 10.3 shall not under any circumstances exceed $4,000,000. Purchaser and Parent, on the one hand, and Seller, on the other hand, acknowledge and agree that (a) the foregoing limitation on the amount of Losses payable provided for all Damages under Section 7.2(bin this SECTION 10.4(C) applies only to Losses arising out of any breach of or any inaccuracy in any representation or warranty set forth in this Agreement and (b) the foregoing limitation on the amount of Losses payable provided for in this SECTION 10.4(C) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant limit Losses payable as a result of, relating to, or arising out of (i) a party's breach of or failure to perform any covenant or obligation set out in this Agreement, (ii) any of the Excluded Assets, (iii) any Excluded Liabilities, or (iv) any breach of or inaccuracy of any representations and warranties relating to title and/or ownership of the Acquired Assets, including SECTION 3.6 hereof; (v) the operation of any business or activity of Seller other than the Business; (vi) the failure to obtain any Consent, license, permit, waiver, approval or other similar authorization specified in SECTION 7.1(G) of the Disclosure Schedule; and (vi) the Bulk Sales Laws of any jurisdiction in connection with the transactions contemplated by this Agreement (other than Claims by creditors with respect to the Assumed Obligations).
(cd) The parties hereto expressly waive If, after any claim indemnification payment has been made in respect of any Loss, the party receiving the indemnification payment shall receive any recovery, whether through insurance or otherwise, of the Loss for which an indemnification payment has been made, the indemnified party shall promptly, but in no event later than 30 days after such recovery is made, reimburse the indemnifying party that portion of the indemnification payment made that relates to consequentialthe recovered Loss (it being agreed, punitive or indirectfor this purpose, lost profitsthat any Loss so recovered shall be applied first to the deductible amount under SECTION 10.4(B), diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value if and to the extent that such diminution deductible amount was used in calculating the indemnification payment made by the indemnifying party). To the extent that an indemnification payment shall be made by Seller in respect of value any accounts receivable from an account debtor which is not collected by Purchaser, then, for purposes of determining whether such account receivable has been collected and the probable and reasonably foreseeable result of the applicable breach of a representationindemnification payment recovered, warranty, covenant or agreement hereunder, (ii) any payments made to the extent actually recovered Purchaser in respect of accounts receivable by a third party such account debtor shall be applied against the accounts receivable from such account debtor in chronological order of their age (including a Governmental Body) from an Indemnified PersonI.E., or (iii) in first, to the event of Intentional Fraudoldest accounts receivable), criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementunless the account debtor specifically designates otherwise.
(e) No Buyer Indemnified Person Seller, on the one hand, and Purchaser and Parent, on the other hand, acknowledge and agree that the foregoing indemnification provisions in this ARTICLE X shall be entitled to indemnification under this Agreement (i) in the exclusive remedy of Seller, on the one hand, and Purchaser and Parent, on the other hand, with respect of any Damages to the extent such Damages were taken into account in Division and the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such mattertransactions contemplated by this Agreement.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller No Buyer Losses shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely asserted by recovery by the Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages matter which is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expiredinsurance, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent proceeds of such Damages insurance are not covered received (net of any additional costs incurred by reason of such recovery) by the Indemnification Insurance Policy for any reason Buyer. The Buyer shall, and shall cause other than the lack Buyer Indemnitees to, use its best efforts to recover all insurance recoverable in respect of good faith efforts by the a particular Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementLoss.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of No claim may be made against the Seller for all Damages under indemnification pursuant to Section 7.2(a) 8.1 hereto with respect to any individual item of Buyer Losses, and Buyer Losses shall not exceed include any individual item, unless such item exceeds $1,000 (the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement"De Minimis Exclusion").
(c) The parties hereto expressly waive Seller shall be obligated to indemnify the Buyer Indemnitees for Buyer Losses with respect to any claim matters under Section 8.1(a) of this Agreement when, and only when, the aggregate of all such Buyer Losses with respect to consequentialall matters exceeds $75,000, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in and then the event of diminution of value Seller shall be liable for such Buyer Losses only to the extent that they exceed such diminution of value is amount (the probable and reasonably foreseeable result "Threshold"). The Seller's obligation to indemnify the Buyer Indemnitees for Buyer Losses with respect to all matters shall be limited to an amount, or amounts in the aggregate, equal to forty percent (40%) of the applicable breach of a representation, warranty, covenant or agreement hereunder, Purchase Price (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants"Cap").
(d) An Indemnified Person entitled to Notwithstanding the foregoing, neither Section 8.5(b) or (c) above shall apply to, and the Seller shall indemnify Buyer Indemnitees for all Buyer Losses with respect to, indemnification by an Indemnifying Person pursuant to this Article VII claims for a breach of the representations and warranties contained in Section 3.3 (Title) and in Section 3.13 (Taxes), it being further understood that all Buyer Losses with respect to any claim such breach shall not be applied against, or group of related claims shall only be entitled used to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementreduce, the Threshold.
(e) No Notwithstanding any other provision hereof, in no event shall the Seller be liable for or obligated to indemnify any Buyer Indemnified Person shall be entitled to indemnification under this Agreement Indemnitee (i) in respect of any Damages to the extent such Damages were Buyer Losses relate to actions taken into account in the calculation by such Buyer Indemnitee or any of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesits affiliates, or (ii) for from and against any Damages relating to consequential, indirect or special damages, including, without limitation, lost profits, business interruption and loss of business opportunities or goodwill (other than any matter such consequential, indirect or special damages resulting from claims from customers, vendors or employees of the Business, which claims would be subject to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(fprovisions of Sections 8.5(b) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (iic) the amount above). This exclusion of any Damages resulting therefromconsequential, all qualifications indirect or exception in any representation or warranty relating to or referring to the terms “material”special damages shall apply whether an action for recovery of damages is sought based on contract, “materiality”tort (including sole, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover concurrent or other Tax asset negligence or liability of strict liability), statute or otherwise. To the Acquired Companies in extent permitted by law, any taxable period (or portion thereofstatutory remedies which are inconsistent with this Section 8.5(a) beginning after are hereby waived by the ClosingBuyer.
Appears in 1 contract
Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudIf the Closing shall not have occurred, criminal activity or willful breaches recovery of covenants, any Damages for which the Seller shall be liable Buyer pursuant to Section 7.2(a)(i11.1 shall in no event include any punitive, exemplary, special, indirect, incidental or consequential damages whatsoever.
(b) shall be satisfied solely by recovery by Buyer under Fifteen (15) months after the Indemnification Insurance Policy and Buyer will have no recourse against Closing Date, or the Seller applicable statute of limitations with respect to any such Damagesthe representation and warranties in Section 5.2, whether or not 5.11, 5.12 and 5.14 and the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess third anniversary of the Indemnification Deductible up Closing Date with respect to an amount not to exceed $250,000 (the “Cap”), and (ii) a violation of Section 7.11 the Seller shall have no further liability or obligations under this Article 11 or this Agreement or otherwise, except for indemnification under Section 7.2(a)(iDamages with respect to which the Buyer Indemnitee has given the Seller adequate written notice prior to such date.
(c) unless and until the aggregate The amount of such Damages exceeds $250,000 otherwise recoverable under this Article 11 shall be reduced to the extent to which any Federal, state, local or foreign tax liabilities of the Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates (the “Indemnification Deductible”); and provided further that including in the case of any inaccuracy in or breach the Buyer, and the Subsidiary once the Closing has occurred) is decreased by reason of any Company Fundamental RepresentationDamage in respect of which such Seller Indemnitee or Buyer Indemnitee, as applicable, shall be entitled to indemnity under this Agreement.
(d) No Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee with respect to any matter which is covered by insurance, to the extent proceeds of such insurance or other third party indemnitor are paid net of any costs incurred in connection with the collection thereof (including, but not limited to present, retrospective, or future premiums, self-insured retention amounts, deductibles, legal and administrative costs and costs of investigations) the Seller Indemnitee or Buyer Indemnitee, as the case may be, hereby agreeing to exhaust all reasonable remedies against all applicable insurers or indemnitors prior to recovering any amounts hereunder, it being understood and agreed that such reasonable remedies shall not include the commencement of litigation PROVIDED that to the extent litigation is not so commenced the indemnifying party shall be directly liable subrogated to all rights of the Seller Indemnitee or Buyer Indemnitee, as the case may be, against such insurers or indemnitors.
(e) Any payment required under this Section 11 paid to any Buyer Indemnitee or any Seller Indemnitee, as the case may be, shall be treated by the Buyer and the Seller as a further adjustment of the Purchase Price for the Assets.
(i) No Damages shall be recoverable by a Buyer Indemnitee pursuant to the provisions of this Article 11, and no claim therefor shall be asserted by a Buyer Indemnified Persons Indemnitee for any purpose whatsoever hereunder, unless the amount of the Buyer Indemnitees' Damages equals at least $300,000 in the aggregate and then only to the extent such Damages are not covered exceed $300,000 in the aggregate.
(ii) The aggregate amount of Damages recoverable pursuant to the provisions of this Article 11 by all Buyer Indemnitees shall be limited to $5,000,000.
(iii) Damages recoverable by a Buyer Indemnitee shall be recoverable solely against the Indemnification Insurance Policy for balance remaining in the Escrow and amounts owed pursuant to the Note as follows: 50% of any reason Damages to be recoverable by a Buyer Indemnitee shall be paid from the Escrow and 50% by set-off against the amounts owed pursuant to the Note except to the extent the Escrow is exhausted in which case such Damages shall be paid by set-off against the amounts owed pursuant to the Note.
(iv) In no event shall Damages recoverable by Buyer Indemnitees in the aggregate pursuant to this Article 11 exceed, or be recoverable from any source other than the lack of good faith efforts by balance remaining in the Buyer Indemnified Persons to seek recovery thereunder and comply with Escrow or amounts unpaid under the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementNote.
(bg) No Damages shall be recoverable by any Buyer Indemnitee pursuant to the provisions of this Article 11, and no claim therefor shall be asserted for any purpose whatsoever hereunder, which arise out of facts, circumstances or conditions which are disclosed in this Agreement or any Schedule hereto or of which any Buyer Indemnitee had knowledge on or before the Closing Date. The knowledge of any current employee of the Seller shall not be imputed to any other Buyer Indemnitee.
(h) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to contained in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Indemnitees shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of Section 11.1 for any Damages to the extent that the Buyer receives at or after the Closing an adjustment to the Purchase Price with respect to the matters giving rise to such Damages were taken into account in the calculation by reason of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or Article 4 hereof.
(iii) for any Damages relating to any matter Except to the extent that there Seller is included in the Interim Financial Statements liable to Buyer for a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty the representations contained in Section 5.14, Buyer releases Seller and (ii) the amount of its Affiliates from any Damages resulting therefromclaims, all qualifications or exception in including contribution claims arising under any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or Environmental Law as well as any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties common law regarding the amount or availability protection of any net operating losshealth, capital loss, tax credit carryover or other Tax asset or liability of safety and the Acquired Companies in any taxable period (or portion thereof) beginning after the Closingenvironment.
Appears in 1 contract
Certain Limitations. (ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Notwithstanding the Seller shall foregoing,
(1) no claim may be liable made by the Buyer Indemnitees pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”6.2(a)(i), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.2(a)(i) exceeds $250,000 100,000 (the “Indemnification DeductibleBasket Amount”), and thereafter, the Seller Indemnifying Parties shall be required to pay or be liable for all Losses in excess of the Basket Amount, until the aggregate amount of such Losses is $200,000 (the “Deductible Amount”).
(2) From and after the time that the aggregate amount of all Losses in respect of indemnification under Section 6.2(a)(i) exceeds the Deductible Amount, Buyer, on the one hand, and the Seller Indemnifying Parties, on the other hand, shall bear an equal portion of the Losses until the aggregate total amount for all Losses is equal to the Retention Amount; and provided further that in the case Seller Indemnifying Parties shall be solely responsible for all Losses arising from or related to Fraud committed by a Seller Indemnifying Party.
(ii) The indemnification obligation of the Seller Indemnifying Parties pursuant to Section 6.2(a)(i), other than a claim for indemnification arising from any breach or inaccuracy of any inaccuracy in or breach of IP Representations, any Company Fundamental Representation, the Seller or Fraud, shall be directly liable limited to sums held in the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementIndemnity Escrow Account.
(biii) Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for IP Claims shall be limited to $20,000,000 (the “IP Cap”).
(iv) Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for an Agreed Indemnity Event shall be limited to $2,000,000 (the “Agreed Indemnity Event Cap”).
(v) Notwithstanding anything to in the contrary hereinforegoing, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability amount of Losses recoverable from the Seller Indemnifying Parties for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller any claim for indemnification pursuant to this Agreement, including Fundamental Claims and (ii) Fraud, shall be limited to the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by (the Buyer pursuant to this Agreement“Purchase Price Cap”).
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (BigCommerce Holdings, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller and the Seller Stockholders shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.02(a) unless and until the aggregate amount of such Damages all Losses in respect thereof exceeds $250,000 150,000 (the “Indemnification DeductibleBasket”); , at which ▇▇▇▇ ▇▇▇▇▇▇ and provided further that Stockholders shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Seller and the case Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c), Section 8.02(d) or Fraud Claims.
(b) Buyer and Newpark shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time Buyer and Newpark shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to Section 8.03(b) or Fraud Claims.
(c) No Stockholder shall be liable to Buyer Indemnitees for indemnification under Section 8.04(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time the Stockholder shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of the Stockholders, claims for indemnification pursuant to Section 8.04(b) or Fraud Claims.
(d) For purposes of this Article VIII, any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty, and any damages resulting therefrom 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.
(e) With respect to Seller’s and the Stockholders’ indemnity obligations under Section 8.02(a), the aggregate liability of Seller and the Stockholders to indemnify Buyer Indemnitees from and against any such Losses under Section 8.02(a) shall not exceed the amount of the Cash Escrow Fund (the “Cap”); provided that the Cap shall not be directly liable applicable to any claims in respect of any Fundamental Representations of Seller or Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c), or Section 8.02(d) or Fraud Claims.
(f) The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are covered by the Buyer Indemnified Persons R&W Insurance Policy shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Cash Escrow Fund, (ii) then by the R&W Insurance Policy in accordance with the terms thereof and (iii) only to the extent such Damages are not covered by Losses involve a breach of the Indemnification Fundamental Representations or a breach of Section 4.19 (Taxes) or Section 4.15 (Environmental Matters), and exceeds the aggregate of both the amount of the remaining Cash Escrow Funds and the policy limit under the R&W Insurance Policy for any reason other than with respect to such claim, jointly and severally from the lack of good faith efforts by the Seller and Stockholders, provided, that (x) Buyer Indemnified Persons may elect to seek recovery thereunder of such Losses from the Stock Escrow Shares prior to seeking recovery directly from the Seller and comply with the terms Stockholders, and conditions thereof (including y) in no event shall such recovery against a Stockholder exceed the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to portion of the Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership interest in the Seller pursuant to this AgreementSeller).
(bg) Notwithstanding anything The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are not covered by the contrary hereinR&W Insurance Policy, except for Damages resulting from Intentional Fraudor pursuant to Section 8.02(b), criminal activity Section 8.02(c) or willful breaches of covenantsSection 8.02(d) shall (after satisfying the Basket, as and if applicable) be paid
(i) first from the aggregate liability Stock Escrow Shares, (ii) then, at Buyer’s sole discretion, from the Cash Escrow Fund and (iii) jointly and severally from the Seller and Stockholders, provided, that in no event shall such recovery against a Stockholder exceed the portion of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership in the Seller Seller). For purposes hereof, the number of Stock Escrow Shares to be delivered pursuant to this AgreementSection 8.05(g) shall be that number determined by dividing (x) the amount of the Loss, and by (ii) the Newpark Volume-Weighted Average Price.
(h) With respect to Buyer’s and Newpark’s indemnity obligations under Section 8.03(a), the aggregate liability of Buyer for all Damages under Section 7.2(b) and Newpark to indemnify Seller Indemnitees from and against any Losses shall not exceed the aggregate Purchase Price actually paid by Cap; provided that the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the Cap shall not be applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness Section 8.03(b) or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterFraud Claims.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. (a) Except Other than Sellers' obligation to indemnify for claims Buyer Losses under Section 11.1(a) of this Agreement arising from Intentional Fraudout of a breach of representation or warranty contained in Section 4.2 (capitalization) or Section 4.12 (brokers), criminal activity or willful breaches Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of covenants, any Damages for which this Agreement shall not accrue until the Seller aggregate of all such Buyer Losses exceeds [*] Dollars ($[*]) (the "Loss Threshold") and then Sellers shall be liable pursuant to Section 7.2(a)(i) for all such Buyer Losses in excess of such initial $[*] and shall be satisfied solely by recovery by Buyer under limited to [*] Dollars ($[*]) in the Indemnification Insurance Policy and Buyer will have aggregate. There shall be no recourse against the Seller Loss Threshold or limit on liability with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that Sellers' obligations to indemnify under Sections 11.1(b) through (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”d), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to In no event shall any punitive, exemplary, special, indirect, incidental or consequential damages whatsoever be recoverable by any indemnitee under Article 11 hereof; except that, if punitive, exemplary, special, indirect, incidental or consequential damages have been asserted by a third party against a Seller Indemnitee or Buyer Indemnitee, the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches indemnifying party shall be liable therefor under the provisions of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementArticle 11.
(c) The parties hereto expressly waive Any payment required under this Article 11 paid to any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages Buyer Indemnitee or any damages based on any type of multipleSeller Indemnitee, exceptas the case may be, in each case, (i) in shall be treated by the event of diminution of value to Buyer and the extent that such diminution of value is the probable and reasonably foreseeable result Sellers as an adjustment of the applicable breach of a representationPurchase Price; provided, warrantyhowever, covenant that no Buyer Losses indemnified hereunder shall be considered payment by Sellers for Net Assets or agreement hereunderFacility Costs, (ii) and Buyer shall have no obligation to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled pay any amounts to indemnification by an Indemnifying Person pursuant to this Sellers under Article VII 2 with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementBuyer Losses.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) until the aggregate amount of all Losses sustained by Buyer Indemnitees by reason of inaccuracies in, criminal activity or willful breaches of, the representations or warranties made by Sellers in this Agreement, or in any certificate or instrument delivered by or on behalf of covenantsSellers pursuant to this Agreement, any Damages exceeds $491,250.00 (the “Basket”), in which event Sellers shall be required to indemnify Buyer Indemnitees for all such Losses in excess of the Basket. The aggregate amount of all Losses for which the Seller Sellers (cumulatively) shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 491,250.00 (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Sellers Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses sustained by Seller Indemnitees by reason of inaccuracies in, or breaches of, the representations or warranties made by Buyer in this Agreement, or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, exceeds the Basket, in which event Buyer shall be required to indemnify Seller Indemnitees for all such Damages exceeds $250,000 Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case of Section 8.04(b) shall not (i) apply to Losses resulting from any inaccuracy in or breach of any Company Fundamental Representation; (ii) affect or otherwise limit any claim Buyer may have under the R&W Insurance Policy, the Seller shall be directly liable or (iii) apply to the Buyer Indemnified Persons to payment of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller Working Capital Adjustment pursuant to this AgreementSection 2.04.
(bd) For purposes of this ARTICLE VIII, (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), 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, except for the references in Sections 3.08(a), 3.09(a)(xiii), and 3.11.
(e) Notwithstanding anything to the contrary hereinin this ARTICLE VIII, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value a party perpetrates a Fraud on the other party in connection with this Agreement or the transactions contemplated hereby, the Party who suffers Losses by reason thereof shall be entitled to seek recovery therefor against the extent that person(s) who perpetrated such diminution of value is Fraud without regard to any limitation set forth in this Agreement (whether a temporal limitation, the probable Basket, Cap, or otherwise) and reasonably foreseeable result such Losses shall not count toward satisfaction of the applicable breach of a representation, warranty, covenant Basket or agreement hereunder, Cap;
(iif) to the extent actually recovered by a third party No Seller shall be liable under this Agreement (including a Governmental Bodythis ARTICLE VIII) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were Losses which are taken into account in the calculation determination of Closing Working Capital or the Working Capital Adjustment;
(g) The amount of any Losses which are indemnifiable or payable under this ARTICLE VIII by an Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party in respect of such Losses under applicable insurance policies or from any other third party alleged to be responsible therefor, including, without limitation, the Title Policy. If the Indemnified Party recovers any amounts under applicable insurance policies, or from any other third party alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party receiving such payment shall promptly reimburse the Indemnifying Party for any portion of such indemnification payment which would not have been payable pursuant to the operation of the Final immediately preceding sentence had such payment been made after the Indemnified Party had recovered such other amount, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount (including any deductible amounts, attorney’s fees and any increased insurance premiums). If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party would reasonably have been expected to have been able to recover all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment;
(h) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses that are for special or consequential damages, or damages based on a multiple, or for Losses which are exemplary or, except for instances of Fraud, punitive damages, unless such damages are payable to a third party;
(i) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to the title of any owned Real Property, including, without limitation, the representations and warranties set forth in Section 3.10, unless and until Buyer Indemnitees have pursued and exhausted all coverages, claims, rights, and protections set forth in the Title Policy;
(j) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital, Company Indebtedness including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14, unless the amount of the resulting Losses would have caused a Working Capital Adjustment to occur (if such Losses had been known at the time when Closing Working Capital was determined), or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment (if such Losses had been known at the time when Closing Working Capital was determined) (any such Losses, which, if known at the time when Closing Working Capital was determined, would have caused a Working Capital Adjustment to occur, or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment, being referred to herein as “Losses in Excess of Collar”). In the event that Losses in Excess of Collar result from breaches of any representation or Company Transaction Expenseswarranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital (including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14), the Indemnifying Parties shall only be liable under this ARTICLE VIII for such Losses in Excess of Collar, and shall not be liable for any other such resulting Losses. The terms of this Section shall not affect any other limitation set forth in this Section 8.04. For purposes of clarity, and by way of example, if a Closing Working Capital Deficit exists of $1,000,000 (resulting in no Working Capital Adjustment), and Losses resulting from breaches of a representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $500,000, no such Losses would be subject to indemnification hereunder, or (ii) for any Damages relating $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to any matter to the extent that there is included indemnification hereunder. Furthermore, if a Closing Working Capital Surplus exists of $2,500,000 (resulting in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes Working Capital Adjustment of determining (i) whether there has been any misrepresentation or breach $500,000), and Losses resulting from breaches of a representation or warranty and pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $300,000, the Losses in Excess of Collar ($300,000) would be subject to indemnification hereunder, or (ii) $1,500,000, the amount Losses in Excess of any Damages resulting therefrom, all qualifications or exception in Collar ($500,000) would be subject to indemnification hereunder; and
(k) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to environmental matters, including, without limitation, the representations and warranties set forth in Sections 3.19, if and to the extent the resulting Losses relate to, result from, or arise out of any matter disclosed in Sections 3.19(b), (e), (f), or (h) of the Disclosure Schedules (the parties acknowledging that Buyer has conducted extensive due diligence relating to the owned Real Property, including, without limitation, conducting the Phase I and Phase II, and that Sellers shall have no liability or referring to indemnification obligations hereunder for Losses relating to, resulting from, or arising out of matters disclosed in the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedPhase I and/or Phase II).
(gl) Seller makes no representations No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from the Company’s or warranties regarding Sellers’ failure to obtain consent from, or failure to notify, the amount State of Kansas (and its related agencies) or availability of any net operating lossInTrust Bank, capital loss, tax credit carryover or other Tax asset or liability of with respect to the Acquired Companies in any taxable period (or portion thereof) beginning after Closing and/or the Closingtransactions contemplated hereby.
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Certain Limitations. (a) Except Each Party’s aggregate liability for claims arising from Intentional Fraud, criminal activity indemnification for the breach of any representation or willful breaches warranty made in this Agreement or in any Related Document shall not exceed an amount equal to fifty (50%) percent of covenants, any Damages for the Purchase Price paid by the Purchaser including the amount of Earn Out Payments which the Seller shall Sellers have earned and otherwise would be liable pursuant entitled to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 paid (the “Liability Cap”), and with the exception of Section 5.7 (iiTaxes) where the Seller shall have no Sellers’ liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable is limited to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the total Purchase Price actually received by the Seller pursuant to this AgreementPrice.
(b) Notwithstanding anything The Sellers shall not be liable for Losses under Section 9.3 (b) unless and until such Losses exceed $200,000 USD, in the aggregate, without taking into account materiality other than under Section 5.11 (the “Sellers Basket Amount”), it being understood that once the amount of the Loss (or Losses) equals or exceeds the Seller Basket Amount, the Purchaser shall be entitled to be indemnified on a dollar for dollar basis for the full amount of the Loss including the Sellers Basket Amount. For the avoidance of doubt, the Sellers Basket Amount shall not apply to any claims for indemnification other than those pursuant to Section 9.3(b), including the breach or non-fulfillment of any covenant in this Agreement or any other breach of this Agreement that is not a breach of the representations and warranties in Article V, and any claims for indemnification pursuant to Section 9.5. No individual claim for indemnification under Section 9.3 (b) shall be valid and assertable unless it is for an amount in excess of $20,000 USD; provided, however, that to the contrary hereinextent that individual claims are related to one another, except they may be aggregated for Damages resulting from Intentional Fraud, criminal activity or willful breaches the purposes of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementmeeting such $20,000 threshold.
(c) The parties hereto expressly waive Purchaser shall not be liable for Losses under Section 9.4(b) unless and until such Losses exceed $200,000 in the aggregate (the “Purchaser Basket Amount”), it being understood that once the amount of the Loss (or Losses) equals or exceeds the Purchaser Basket Amount, the Sellers Indemnified Parties shall be entitled to be indemnified on a dollar for dollar basis for the full amount of the Loss, including the Purchaser Basket Amount. For the avoidance of doubt, the Purchaser Basket Amount shall not apply to any claim claims for indemnification other than those pursuant to consequentialSection 9.4(b), punitive including the breach or indirect, lost profits, diminution non-fulfillment of any covenant in value, special, exemplary or similar damages this Agreement or any damages based on any type other breach of multiple, except, in each case, (i) in the event of diminution of value to the extent this Agreement that such diminution of value is the probable and reasonably foreseeable result not a breach of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) representations and warranties in the event of Intentional Fraud, criminal activity or willful breaches of covenantsArticle VI.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to It is agreed that for the purpose of making a claim for indemnification, the expiration of any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties one survival period, as set forth in this Agreement.
(e) No Buyer Indemnified Person Section 9.1, of certain representations and warranties, shall not affect the ability to make any claim for indemnification hereunder under any other representations and warranties still surviving; provided, however, that no Party shall be entitled to make a claim for indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into more than once on account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such mattersame facts and circumstances.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The liability of the Vendor or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendor shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XIII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendor, except for Damages with respect to an amount not which the Buyers Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 13.3 above; and (ii) the Seller Buyers shall have no liability further obligations under this Article XIII for indemnification under breaches of representations and warranties of Buyers, except for Damages with respect to which the Vendor Indemnitee has given Buyers written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement13.3.
(b) Notwithstanding anything to the contrary herein, except Buyers Indemnitees shall not be entitled to recover Damages from Vendor pursuant to Section 13.1 unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Vendor shall exceed the Vendor Indemnification Threshold, Vendor shall thereafter indemnify any of the Buyers Indemnitees from all and against all Damage in excess of equivalent E10,000.
(c) Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendor in respect of any claims by the Buyers Indemnitees against Vendor pursuant to Section Section 13.1 for Damages resulting suffered or incurred by any Buyers Indemnitee exceed the maximum amount of E75,000,000.
(d) Notwithstanding anything to the contrary contained herein, any claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to the condition that: (i) Buyers and/or the Acquired Companies shall authorize and permit the tax advisers of Vendor at Vendor's sole cost and expense to conduct, direct and process all dealings with the Tax Authorities in respect of all matters and/or all fiscal years and/or all assessments pertaining to the period prior to the Closing Date, in close co-operation with the accountants and tax advisers of the Buyers and the Acquired Companies, provided that neither the Vendor nor its tax advisers shall enter into any settlement or take any action before the courts, or otherwise compromise any tax matter that affects or may affect the tax liabilities of Buyers or any of the Acquired Companies, without the prior written consent of the Buyers, which consent shall not be unreasonably withheld or delayed; and (ii) with respect of claims which are not based upon a breach of Vendor's representations and warranties given under Section 5.16 above, the Tax Liability in respect of which the claim for indemnity is made (including penalties and late payment interest) does not result from Intentional Frauda change adopted by Buyers and/or the Acquired Companies in the accounting and/or tax policies of the Acquired Companies which has, criminal activity directly or willful breaches indirectly, retroactive effect to the period preceding the Closing Date.
(e) Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(b) shall not apply to claims for indemnification by Buyers Indemnitees against Vendor in respect of covenants, (i) the aggregate liability of the Seller for all Damages under indemnities specified in Section 7.2(a13.1(b) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, Section 13(k) inclusive above; and (ii) the aggregate liability of Buyer for all Damages under special indemnities specified in Section 7.2(b13.6 below;
(f) Notwithstanding anything to the contrary herein, Vendor Indemnitees shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for Damages from Buyers unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such claim or group time as the aggregate amount of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) Damages in respect of the indemnity obligations of Buyers shall exceed the Buyers Indemnification Threshold, Buyers shall thereafter indemnify any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included Vendor Indemnitees from all and against all Damage in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes excess of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedequivalent E10,000.
(g) Seller makes Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(f) shall not apply to claims for indemnification by Vendor Indemnitees against Buyers in respect of the indemnities specified in Section 13.2(b) and 13.2(c) above;
(h) Notwithstanding anything to the contrary herein, in no representations or warranties regarding event shall the amount or availability maximum aggregate liability of Buyers in respect of any net operating loss, capital loss, tax credit carryover claims by the Vendor Indemnitees against Buyers pursuant to Section 13.2 for Damages suffered or other Tax asset or liability of the Acquired Companies in incurred by any taxable period (or portion thereof) beginning after the Closing.Vendor Indemnitees exceed E75,000,000
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. The indemnification provided for in Section 6.1 and Section 6.2 shall be subject to the following limitations:
(a) Except Upon the terms and subject to the conditions and limitations set forth in this Agreement, Sellers shall not be liable to Purchaser Indemnitees for claims arising from Intentional Fraudindemnification under Section 6.1(a) until the aggregate amount of all Losses in respect of indemnification exceeds $150,000 (the “Basket”), criminal activity or willful breaches of covenants, any Damages for in which the Seller event Sellers shall be required to pay or be liable for Losses only to the extent (and solely with respect to the amount that) such aggregate Losses exceed the Basket; provided that the foregoing limitation shall not apply in respect of any Losses relating to a Breach of any Transactional Reps. Upon the terms and subject to the conditions and limitations set forth in this Agreement, the Purchaser Indemnitees shall not be indemnified pursuant to Section 7.2(a)(i6.1(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not Loss if the entirety aggregate amount of any such Damages is covered by all Losses for which the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages Purchaser Indemnitees have received indemnification pursuant to Section 7.2(a)(i6.1(a) in excess has exceeded thirty-five percent (35%) of the Indemnification Deductible up Transaction Consideration (the “Non-Transactional Cap”). Subject to an Section 6.5(c), in no event shall the Purchaser Indemnitees be entitled to indemnification pursuant to Section 6.1 with respect to any Loss if the aggregate amount not of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to exceed $250,000 Section 6.1 has exceeded the Transaction Consideration (the “Transactional Cap” and together with the Non-Transactional Cap, the “Cap”).
(b) Upon the terms and subject to the conditions and limitations set forth in this Agreement, and (ii) Purchaser shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i6.2(a) unless and until the aggregate amount of all Losses in respect of indemnification exceeds the Basket, in which event Purchaser shall be required to pay or be liable for Losses only to the extent (and solely with respect to the amount that) such Damages exceeds $250,000 (aggregate Losses exceed the “Indemnification Deductible”)Basket; and provided further that the foregoing limitation shall not apply in the case respect of any inaccuracy in or breach Losses relating to a Breach of any Company Fundamental RepresentationTransactional Reps. Upon the terms and subject to the conditions and limitations set forth in this AmericasActive:13598183.18 Agreement, the Seller Indemnitees shall not be directly liable indemnified pursuant to Section 6.2(a) with respect to any Loss if the Buyer Indemnified Persons aggregate amount of all Losses for which the Seller Indemnitees have received indemnification pursuant to Section 6.2(a) in respect of Non-Transactional Reps has exceeded the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons Non-Transactional Cap. Subject to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedSection 6.5(c), up to an amount equal to the Purchase Price actually received by in no event shall the Seller Indemnitees be entitled to indemnification pursuant to this AgreementSection 6.2 with respect to any Loss if the aggregate amount of all Losses for which the Seller Indemnitees have received indemnification pursuant to Section 6.2 has exceeded the Transactional Cap.
(bc) Notwithstanding anything to the contrary hereinset forth in this Agreement, except the limitations set forth in Section 6.5(a) and Section 6.5(b) shall not limit the Liability of any Indemnifying Party for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability intentional Breach of any covenant set forth herein or any of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and other Transaction Documents or fraud or (ii) indemnification with respect to the aggregate liability of Buyer for all Damages under items set forth in Section 7.2(b6.1(b) through Section 6.1(j). Additionally, the Basket shall not exceed apply to any Losses resulting from a Breach of the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) representation in the event first sentence of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.10(c).
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementFROM AND AFTER THE CLOSING, EXCEPT (A) IN THE CASE OF A FRAUD CLAIM OR A BREACH OF ANY COVENANT TO BE PERFORMED POST-CLOSING SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, OR (B) WITH RESPECT TO EQUITABLE REMEDIES AVAILABLE TO THE PARTIES, THE SOLE AND EXCLUSIVE REMEDY OF ANY PARTY TO THIS AGREEMENT AND ITS AFFILIATES OR ANY OTHER INDEMNIFIED PARTY WITH RESPECT TO THIS AGREEMENT, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE LIMITED TO THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE VI.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be subject to the limitations set forth in this Section 8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Intentional FraudCovered Purchaser Indemnity Claims exceeds $750,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, criminal activity or willful breaches of covenants, any Damages for at which time the Seller shall be liable obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(b) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 7.2(a)(i8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the limitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall be satisfied solely by recovery by Buyer under become operative and effective only if and to the Indemnification Insurance Policy and Buyer will have no recourse against extent that the Seller with respect to any such Damages, whether or not the entirety aggregate amount of any such Damages is covered all Losses incurred by the Indemnification Insurance Policy or whether or not applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Indemnification Insurance Policy has expiredBasket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, been terminated or lapsed; provided that at which time the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(i) The maximum obligation of the Seller to provide indemnification in respect of Covered Purchaser Indemnity Claims shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 7,500,000 (the “CapCap Amount”), ) and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability maximum obligation of the Seller for all Damages under to provide indemnification in respect of Purchaser Indemnity Claims pursuant to Section 7.2(a8.02(a) and Section 8.02(b) shall not exceed $75,000,000; provided, however, that the aggregate Purchase Price actually received by the Seller limitations in this clause (ii) shall not apply to any Purchaser Indemnity Claim pursuant to this Agreement, Section 8.02(b) with respect to the Seller’s obligations and agreements in Section 1.05.
(d) (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the aggregate liability maximum obligation of Buyer for all Damages under the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 7.2(b8.03(a) and Section 8.03(b) shall not exceed $75,000,000; provided, however, that the aggregate Purchase Price actually paid by the Buyer pursuant to limitations in this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, clause (ii) shall not apply to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person any Seller Indemnity Claim pursuant to this Article VII Section 8.03(b) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Purchaser’s obligations and agreements in this AgreementSection 1.05 .
(e) No Buyer Indemnified Person The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or series of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $50,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Any Losses for which any Indemnitee would be entitled to indemnification under this Agreement Article VIII shall be reduced by (i) in respect any cash payments, setoffs or recoupment of any Damages to payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the extent such Damages were taken into account in Indemnitee under insurance policies, including the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, Title Policies) or (ii) for any Damages relating Tax Benefit actually realized in the taxable year of such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any matter amounts actually recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss.
(i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent that there arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is included required to be undertaken pursuant to any applicable Environmental Law or Order, (2) arises in the Interim Financial Statements a specific liability ordinary course of business out of repairs, modifications, maintenance activities, construction or reserve other capital projects, in each case relating to such matter.
the Assets or Transferred Business and conducted consistent with industry practices, or (f3) For purposes of determining (i) whether there has been any misrepresentation or breach arises in response to a requirement of a representation Governmental Authority or warranty and a financing source of the Purchaser or its Affiliates; (iiB) any material change made by the amount Purchaser in the scope of use of any Damages Real Property (including the change resulting therefromfrom the decommissioning, all qualifications closure or exception in shutdown of the Terminal) such that the Real Property is no longer used for similar industrial purposes; or (C) any representation or warranty relating to or referring to conduct by the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” Purchaser or any similar qualificationof its Affiliates, term employees, representatives or phrase shall be disregarded.
agents not consistent with that of a reasonable and prudent business person who owns the applicable Real Property (g) Seller makes no representations or warranties regarding without consideration of the amount or availability benefit of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of indemnification provided by the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingSeller).
Appears in 1 contract
Certain Limitations. a. Seller Indemnifying Parties shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 8.1(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.1(a) exceeds $50,000 (a) Except the “Basket Amount”), in which event the Seller Indemnifying Parties shall be required to pay or be liable for claims arising all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i8.1(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 500,000 (the “Cap”), and (ii) .
b. Purchaser shall not be liable to the Seller shall have no liability Indemnified Parties for indemnification under Section 7.2(a)(i8.3(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 8.3(a) exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket Amount, in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller which event Purchaser shall be directly required to pay or be liable to for all such Losses from the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy first dollar. The aggregate amount of all Losses for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller which Purchaser shall be liable pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a8.3(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementCap.
c. The amount of any Losses for which indemnification is provided under this Section 8 shall be net of (ca) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent amount actually recovered by a third the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third-party and (b) any insurance proceeds actually received as an offset against such Losses (other than from any self-insurance).
d. For the avoidance of doubt, the term “Loss” includes any and all claims, actions, suits, demands, assessments, interest, penalties, fines, judgments, losses, liabilities (including a Governmental Bodystrict liabilities), damages, costs and expenses (including without limitation, reasonable attorney’s fees, advisors’ and consultants’ fees and expenses, accounting fees, and defense and investigation costs) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect and of any Damages to the extent such Damages were taken into account settlement, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable (including without limitation, fees and expenses incurred in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterenforcing this indemnity).
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (CleanCore Solutions, Inc.)
Certain Limitations. (aThe indemnification provided for Section 7.03(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to and Section 7.2(a)(i7.03(b)(i) shall be satisfied solely by recovery by Buyer under subject to the Indemnification Insurance Policy following limitations:
(i) for avoidance of doubt and Buyer will have no recourse against subject to Section 7.03(c)(ii), each Company Stockholder’s obligation to indemnify ListCo Indemnities shall be limited to each Company Stockholder’s pro rata share of the Seller Merger Consideration that such Company Stockholder actually receives at Closing;
(ii) Except with respect to any such DamagesCompany Stockholder Fraud, whether or the Company Stockholders shall not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and ListCo Indemnitees until the aggregate amount of such Damages all Losses in respect of indemnification under Section 7.03(a) exceeds $250,000 (the “Indemnification Company Deductible”), in which event the Company Stockholders shall be required to pay or be liable for all such Losses from and over the Company Deductible, and in no event shall the Company Stockholders be liable for any Losses in an aggregate amount of more than the Indemnification Holdback Amount (it being agreed that, notwithstanding anything to contrary set forth herein and except for the immediately following provision, the ListCo Class A Common Stock held in escrow pursuant to the Share Consideration Escrow Agreement shall be the sole and exclusive recourse of the ListCo Indemnities with respect to all Losses hereunder); provided that, with respect to Losses arising from Company Stockholder Fraud, (1) the Company Deductible shall not apply and (2) solely the Company Stockholder that has committed such Company Stockholder Fraud shall be liable for such Losses; and provided further further, that (as set forth in clause (i) above) in no event shall any single Company Stockholder be liable for Losses hereunder in excess of such Company Stockholder’s pro rata share of the case Merger Consideration that such Company Stockholder actually receives at Closing (inclusive of any inaccuracy in Indemnification Holdback Amounts pertaining to such Holder);
(iii) Except with respect to the ListCo Specified Representations or breach of any Company Fundamental RepresentationFraud, the Seller ListCo shall not be directly liable to the Buyer Indemnified Persons Company Indemnitees for indemnification under Section 7.03(b)(i) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(b)(i) exceeds $100,000 (“ListCo Deductible”) in which event ListCo shall be required to pay or be liable for all such Losses from and over the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.ListCo Deductible; and
(biv) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to any claim the ListCo Specified Representations or group of related claims Fraud, ListCo shall only not be entitled liable to recover once the Company Indemnitees for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (iSection 7.03(b)(i) if the aggregate amount of all Losses in respect of any Damages to indemnification under Section 7.03(b)(i) exceeds the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterMerger Consideration.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The liability of Sellers or Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except At any time after the applicable Survival Date for claims arising from Intentional Frauda representation and warranty, criminal activity or willful (i) Sellers shall have no further obligations under this Article IX for breaches of covenantssuch representations and warranties of Sellers, any except for Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any which Buyer Indemnitee has timely given Sellers written notice prior to such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) date in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), accordance with Sections 8.1 and 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless and until the aggregate amount breaches of such representations and warranties of Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); with respect to which Seller Indemnitee has given Buyer written notice prior to such date in accordance with Sections 8.1 and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement9.3.
(b) Notwithstanding anything to the contrary herein, except with respect to Fraud Claims, any claim by a Buyer Indemnitee against Sellers pursuant to Section 9.1(a) shall be payable by Sellers only in the event that Damages for any single breach of the representations, warranties and covenants exceeds Twenty Thousand Dollars ($20,000) (the “Per Occurrence Threshold”) and the accumulated amount of Damages resulting from Intentional Fraud, criminal activity or willful breaches in respect of covenants, Sellers’ obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed One Hundred Thousand Dollars (i$100,000) in the aggregate liability (the “Seller Indemnification Threshold”); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Sellers shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid suffered or incurred by the Buyer pursuant Indemnitees in excess of such Seller Indemnification Threshold, subject to this Agreementthe maximum aggregate liability cap set forth in Section 9.5(c) below. The foregoing notwithstanding, for purposes of determining the Per Occurrence Threshold, a breach of a representation and warranty set forth in Section 3.16 related to Inventory shall be considered a single breach if such breach arises from the same root cause even if such breach affects more than one item of Inventory.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequentialthe contrary herein, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptexcept with respect to Fraud Claims (for which there shall be no limitation), in each case, no event shall the maximum aggregate liability of Sellers in respect of any claims by Buyer Indemnitees against Sellers pursuant to Section 9.1(a) for Damages suffered or incurred by any Buyer Indemnitees exceed Eighteen Million Dollars (i$18,000,000) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach value of a representation, warranty, covenant or agreement hereunder, the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.4).
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to any Fraud Claims, a Buyer Indemnitee’s right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d) and 9.1(e) shall expire with respect to such claims which are not made on or group of related claims shall only be entitled prior to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementthe date five (5) years following the Closing Date.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working CapitalIN NO EVENT THAT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, Company Indebtedness or Company Transaction ExpensesPUNITIVE, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterINCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, BREACH OF WARRANTY, AN EXCLUDED LIABILITY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT. FURTHERMORE, ANY DAMAGES PURSUANT TO ARTICLE IX RELATED TO INVENTORIES SHALL BE LIMITED TO THE AMOUNT PAID FOR SUCH INVENTORIES PURSUANT TO THIS AGREEMENT.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Sanmina-Sci Corp)
Certain Limitations. The party making a claim under this Section 9 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Section 9 is referred to as the “Indemnifying Party”. The indemnification provided for in this Section 9 and shall be subject to the following limitations:
(a) The Stockholders shall not be liable to the Alarm Indemnified Parties for indemnification under Section 9(a)(i) until the aggregate amount of all Losses exceeds $175,000 (the “Basket”), in which event the Stockholders shall be liable for the full amount of such Losses.
(b) Except for claims arising from Intentional Fraudout of fraud, criminal activity willful breach or willful breaches breach of covenantsthe Fundamental Representations, any Damages the aggregate amount of all Losses for which all Stockholders in the Seller aggregate shall be liable pursuant to this Section 7.2(a)(i) 9 shall not exceed the Escrow Amount and the recourse of the Alarm Indemnified Parties shall be satisfied solely by recovery by Buyer under to the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with Escrow Amount. With respect to any such Damagesclaims arising out of fraud, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in willful breach or breach of any Company the Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenantsRepresentations, (i) the aggregate liability amount of the Seller all Losses for which all Damages under Section 7.2(a) Stockholders shall be liable shall not exceed the aggregate Purchase Price amount of the Merger Consideration actually received by the Seller pursuant to this AgreementStockholders, and (ii) the aggregate liability indemnification obligation of Buyer for all Damages under Section 7.2(b) each Stockholder shall not in no event exceed the aggregate Purchase Price amount of the Merger Consideration actually paid received by such Stockholder, and (iii) in no event shall any Stockholder be liable for any indemnification obligations of any other Stockholder. Further, notwithstanding anything to the Buyer contrary in this Agreement in the case of a breach of any representation or warranty made severally and not jointly by any Stockholder in such Stockholder’s Letter of Transmittal, the indemnification obligations of the Stockholders are several and no Stockholder shall be liable for any losses suffered by Alarm as a result of any breach of such representation by any other Stockholder. Further still, in no event shall any Common Holder who acquired his or her shares by virtue of exercise of stock options pursuant to the Company Stock Option Plan have any liability pursuant to the indemnification provisions of this AgreementAgreement or with respect to the Merger on account of such shares of common stock other than arising out of or with respect to his or her own representations, warranties and covenants expressly set forth in his or her Letter of Transmittal. To the extent a Common Holder also holds shares of Preferred Stock, such Common Holder also shall be subject to the indemnification provisions of this Agreement and other obligations of Holders of Preferred Stock set forth in this Agreement with respect to shares of Preferred Stock held by such Holder.
(c) The parties hereto expressly waive Payments by an Indemnifying Party pursuant to this Section 9 in respect of any claim Loss shall be limited to consequentialthe amount of any liability or damage that remains after deducting there from any insurance proceeds, punitive and any indemnity, contribution or indirect, lost profits, diminution in value, special, exemplary other similar payment received by the Indemnified Party (or similar damages or any damages based on any type of multiple, except, in each case, (ithe Company) in the event respect of diminution of value to the extent that any such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsclaim.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group Except in the case of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two representation or more representations and/or warranties set forth warranty contained in this Agreementthe Letter of Transmittal of each applicable Stockholder for which the Indemnified Party may pursue the applicable Stockholder directly without first making a claim against the escrow, unless and until the assets remaining in the Escrow are insufficient to satisfy the outstanding indemnification claims, all claims for indemnification by the Alarm Indemnified Parties shall first be made against the Escrow Amount.
(e) No Buyer Indemnified Person Notwithstanding anything herein to the contrary, no party shall be entitled to indemnification under pursuant to this Agreement (i) in respect of Article IX for any Damages Losses to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there party has been indemnified or reimbursed for such Losses under any misrepresentation or breach other provision of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedthis Agreement including Section 2.3 hereof.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Notwithstanding anything to the Seller contrary contained in this Agreement: (A) no Buyer Indemnified Party shall be liable entitled to recover any Losses (other than Losses that relate to Taxes) pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i9.2(a) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in all Losses actually incurred or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts suffered by the Buyer Indemnified Persons Parties pursuant to seek recovery thereunder and comply with Section 9.2(a) is in excess of $2,000,000 in the terms and conditions thereof aggregate (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied“Deductible”), up to an amount equal and then only to the Purchase Price actually received by extent that such Losses exceed the Seller Deductible; and (B) no Buyer Indemnified Party shall be entitled to recover any Losses (other than Losses that relate to Taxes) pursuant to Section 9.2(a) in respect of any single claim if the amount of such Losses is less than $50,000 (the “Minimum Loss Amount”), and no such Losses that are less than the Minimum Loss Amount shall be included in calculating the aggregate Losses for purposes of determining if the Deductible has been met in this AgreementSection 9.2(b); provided, that in each case all related single claims and losses will be aggregated in determining whether the Minimum Loss Amount is met. The limitations in this Section 9.2(b)(i) shall not apply to Losses attributable to claims for breaches of Section 3.12 or Excluded Claims.
(bii) Notwithstanding anything to the contrary hereincontained in this Agreement: (A) except with respect to Losses attributable to Excluded Claims, except the Buyer Indemnified Parties shall have no right to receive any indemnification payments from the Indemnifying Parties for Damages resulting from Intentional Fraud, criminal activity or willful breaches any claims for Losses pursuant to Section 9.2(a) in excess of covenants, the amount then remaining in the Escrow Account; (iB) the aggregate liability Buyer Indemnified Parties shall have no right to receive any indemnification from the Indemnifying Parties for any claims for Losses pursuant to Section 9.2(a) (including Excluded Claims) in excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually amount of Aggregate Stockholder Cash Proceeds and Aggregate Option Cash Proceeds received by the Seller pursuant to this Agreement, Indemnifying Parties; and (iiC) no Indemnifying Party shall be liable for an amount in excess of such Indemnifying Party’s pro rata portion (calculated in the aggregate liability manner set forth in Section 9.2(a)) of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany Losses that are indemnifiable hereunder.
(ciii) The parties hereto expressly waive For the purpose of quantifying Buyer Indemnified Party’s Losses under this Article 9 only (but not for determining whether any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderhas been breached or is inaccurate), any representation, warranty, covenant or agreement given or made by the Company that is qualified in scope as to materiality (iiincluding a Company Material Adverse Effect) shall be deemed to be made or given without such qualifications.
(iv) For the extent purpose of this Article 9 only, the amount of any Loss shall be reduced by (A) any insurance proceeds actually received by a Buyer Indemnified Party with respect to such Loss and (B) any amounts actually recovered by a third party (including Buyer Indemnified Party from another Person in respect of such Losses. In addition, for purposes of determining the amount of any Loss attributable to Taxes of the Company or any of its Subsidiaries in any Pre-Closing Taxable Period, the amount of any such Loss shall be reduced by any correlative tax savings or benefit actually recognized by a Governmental Body) from an Buyer Indemnified Person, Party as a result of incurring such Loss on or (iii) before the end of the taxable year after the tax year in which such Loss is incurred or in which the event amount of Intentional Fraud, criminal activity or willful breaches of covenantssuch Loss is finally determined in accordance with this Agreement.
(dv) An Anything herein to the contrary notwithstanding, no Indemnifying Party shall have any liability under any provision of this Agreement for, and Losses shall not include, any punitive, exemplary or other similar damages, unless the applicable Buyer Indemnified Person entitled Party is required to indemnification by an Indemnifying Person pursuant pay such damages to this Article VII with respect a third party as part of a third party claim against such Buyer Indemnified Party that is otherwise indemnifiable hereunder.
(vi) Notwithstanding anything to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties the contrary set forth in this Agreement, no Indemnifying Party shall have any Liability for Taxes incurred by the Company or any Subsidiary of the Company resulting from the transactions contemplated by this Agreement (including any Employment Transaction Taxes or Transfer Taxes, which shall be the responsibility of Buyer), other than Taxes that would not have been incurred but for a breach of any of the representations, warranties and covenants contained in Section 3.12, Section 3.13, Section 3.20, Section 5.5, Section 5.6 and Section 5.11.
(evii) No Buyer In no event shall an Indemnified Person shall Party be entitled indemnified for any indemnifiable Losses pursuant to indemnification under this Agreement (i) in respect Article 9 related to or arising from the amount, value or condition of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability attribute (e.g., net operating loss carry-forward (including, but not limited to, any such carry-forward attributable to payment of the Acquired Companies in aggregate Option Consideration with respect to all Vested Options and amounts required to be paid at the Closing under the management transaction incentive plan or other arrangements described on Section 1.1(a) of the Schedule of Exceptions) or Tax credit carry-forward) of the Company or the ability of Buyer or the Surviving Corporation to utilize any such Tax asset or attribute for any taxable period (or portion thereof) beginning commencing after the ClosingEffective Time, other than Losses that arise in connection with a breach or inaccuracy of any of the representations, warranties and covenants contained in Section 3.13(d), Section 3.13(i), Section 3.13(j), Section 3.13(k) or Section 5.6.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The obligations of covenants, any Damages for which the Seller shall be liable Sellers in respect of Purchaser Indemnity Claims pursuant to Section 7.2(a)(i8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud by or on behalf of any Seller, which shall not be subject to the limitations set forth in this Section 8.05) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds $5,000,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Sellers shall be satisfied solely obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(b) The obligations of the Parent and the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud or an intentional and material misrepresentation by recovery or on behalf of the Purchaser or the Parent, which shall not be subject to the limitations set forth in this Section 8.05) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by Buyer under the Indemnification Insurance Policy applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Parent and Buyer will the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(c) The maximum obligation of the Sellers to provide indemnification in respect of Covered Purchaser Indemnity Claims shall not exceed $56,000,000 (the “Cap Amount”).
(d) The maximum obligation of the Parent and the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount.
(e) The obligations of the Sellers in respect of any Covered Purchaser Indemnity Claim shall not apply if the amount of Loss incurred by the applicable Indemnitees related to such individual Covered Purchaser Indemnity Claim, together with all related Covered Purchaser Indemnity Claims, totals less than $45,000 (the “De Minimis Threshold”).
(f) The obligations of the Parent and the Purchaser in respect of Covered Seller Indemnity Claims shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Covered Seller Indemnity Claim or series of related Covered Purchaser Indemnity Claims exceeds the De Minimis Threshold.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in Section 8.05(a) through Section 8.05(f) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Notwithstanding anything to the contrary contained in this Article VIII, the Sellers shall have no recourse against obligation to indemnify the Seller Purchaser or its Affiliates under Section 8.02(a) or Section 8.02(c) with respect to any liabilities or obligations arising from the Release of Materials of Environmental Concern to the Environment if such Damagesliabilities or obligations constitute Excluded Pre-Closing Environmental Liabilities. In addition, whether the obligation of the Sellers to provide indemnification pursuant to Section 8.02(a) or not Section 8.02(c) with respect to any clean up costs or costs of remediation arising from the entirety Release of Materials of Environmental Concern to the Environment shall be limited to costs associated with clean up and remediation actions that are (i) required by applicable Environmental Law or an Order issued by a Governmental Authority, reasonably necessary in order to avoid a Legal Proceeding threatened by a Governmental Entity or other Person under any Environmental Law or reasonably necessary in order to prevent or mitigate an imminent and substantial endangerment to human health or the environment and (ii) taken in good faith and in a manner consistent with the actions that would be taken by a reasonable and prudent business person who owns the applicable Real Property (without consideration of the benefit of any such Damages is covered indemnification provided by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that Sellers).
(i) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) the Seller shall be directly liable to amount of insurance proceeds actually received or recovered under any insurance policies for the Buyer Indemnified Persons for benefit of such Damages Indemnitee (including the Title Policies) and any cash payments, setoffs or recoupment of any payments recovered by such Indemnitee in respect of such Losses (other than pursuant to Section 7.2(a)(i) in excess of any indemnification or similar arrangements that the Indemnification Deductible up to an amount not to exceed $250,000 (Indemnitee has purchased following the “Cap”Closing Date), and (ii) any Tax Benefit. To the Seller extent required by principles of applicable Delaware contract law, each Indemnitee shall have no liability use commercially reasonable efforts to mitigate losses for which such Indemnitee is subject to indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Article VIII. Notwithstanding anything to the contrary hereinin the previous Section, except if an Indemnitee believes that coverage for Damages resulting from Intentional FraudLosses is likely to be available under the Title Policies, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) such Indemnitee shall not exceed the aggregate Purchase Price actually received by the Seller use commercially reasonable efforts to pursue any insurance proceeds available to such Indemnitee pursuant to any Title Policies. If, after the Indemnitor has made an indemnification payment to an Indemnitee in satisfaction of its obligations under this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant Article VIII with respect to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive Third-Party Claim or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Direct Claim pursuant to this Article VII with VIII, the Indemnitee actually recovers from any third parties amounts in respect of such Losses of the type described in the first sentence of this Section 8.05(i), it shall as promptly as practicable forward to the Indemnitor such amounts (less the full amount of expenses incurred in procuring such recovery, including any claim applicable deductibles or group retentions), but not in excess of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementthe indemnification payment received by the Indemnitee.
(ej) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect For the avoidance of doubt, if any Damages to the extent such Damages were taken into account Loss was included as a current liability in the calculation of the Final Closing Working CapitalCapital in accordance with the provisions of Section 1.05, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of such Loss may not be recovered under this Article VIII, but the amount, if any, of any Damages resulting therefrom, all qualifications or exception such Loss that exceeds the amount included as a current liability in any representation or warranty relating to or referring the calculation of Final Working Capital may be recovered on and subject to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedand conditions of this Article VIII.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The liability of Seller or Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudIf the Closing shall not have occurred, criminal activity or willful breaches recovery of covenants, any Damages for which the Seller shall be liable Buyer pursuant to Section 7.2(a)(i) 11.1 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy limited to actual out-of-pocket expenses and Buyer will have shall in no recourse against the Seller with respect to event include any such Damagesspecial, whether indirect, incidental or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementconsequential damages whatsoever.
(b) Notwithstanding anything two (2) years after the Closing Date, except for obligations in respect of payment of taxes and compliance with ERISA requirements which shall continue for their respective statutory periods following the Closing Date, and except for Seller's obligation to indemnify Buyer under Section 11.1(c) with respect to the contrary hereinclaims made by the USEPA regarding the Florida Petroleum Reprocessors, Davie, Florida Site (the "Florida Petroleum Reprocessor Site") Seller shall have no further obligations under this Article 11 or this Agreement or otherwise, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant in each case with respect to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by which the Buyer pursuant Indemnitee has given Seller written notice prior to this Agreementsuch date.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type amount of multiple, except, in each case, (i) in the event of diminution of value Damages otherwise recoverable under this Article 11 shall be reduced to the extent that such diminution of value is the probable and reasonably foreseeable result to which any Federal, state, local or foreign tax liabilities of the applicable breach of a representationSeller Indemnitee or Buyer Indemnitee, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personas applicable, or (iii) any of their respective Affiliates is decreased by reason of any Damage in the event respect of Intentional Fraudwhich such Seller Indemnitee or Buyer Indemnitee, criminal activity or willful breaches of covenantsas applicable, shall be entitled to indemnity under this Agreement.
(d) An Indemnified Person entitled to indemnification No Damages shall be asserted by an Indemnifying Person pursuant to this Article VII a Seller Indemnitee or Buyer Indemnitee with respect to any claim or group matter which is covered by insurance, to the extent proceeds of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementinsurance are paid.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement Except in respect of the matters set forth in Sections 11.1 (c) and (d) and 11.2 (b) hereof, (i) no claim or claims shall be asserted by a Seller Indemnitee or Buyer Indemnitee pursuant to the provisions of this Article 11 unless the amount of such Indemnitee's Damages equals at least $250,000 in respect of any Damages the aggregate and then only to the extent such Damages were taken into account exceed $250,000 in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.aggregate; and
Appears in 1 contract
Sources: Stock Purchase Agreement (Harding Lawson Associates Group Inc)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which The SP Parties shall not be obligated to indemnify and hold harmless the Seller shall be liable pursuant to Retrocessionaire Indemnified Persons under Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damagesclaim, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Indemnifiable Losses of the Retrocessionaire Indemnified Persons under Section 7.2(a)(i) exceeds $250,000 USD [*****] (the “Indemnification Deductible”); and provided further that in , at which point the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller SP Parties shall be directly liable to the Buyer Retrocessionaire Indemnified Persons for the value of claims under Section 7.2(a)(i) that are in excess of the Deductible, subject to the extent such Damages are not covered by limitations set forth in this Article VII; provided that the Indemnification Insurance Policy maximum aggregate liability of the SP Parties to all the Retrocessionaire Indemnified Persons for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementall Indemnifiable Losses under Section 7.2(a)(i) shall not exceed USD [*****].
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the The maximum aggregate liability of the Seller SP Parties to all the Retrocessionaire Indemnified Persons for any or all Damages Indemnifiable Losses due to any breach of the covenants in Article V only under Section 7.2(a7.2(a)(iii) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the USD [*****]. The maximum aggregate liability of Buyer the Retrocessionaire to all the SP Indemnified Persons for any or all Damages Indemnifiable Losses due to any breach of the covenants in Article V only under Section 7.2(b7.2(b)(iii) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementUSD [*****].
(c) The parties hereto expressly waive Each Indemnitee shall use commercially reasonable efforts to mitigate or prevent such Indemnifiable Losses.
(d) No Retrocessionaire Indemnified Person shall be entitled to indemnification with respect to any particular Indemnifiable Loss to the extent the related damages, losses, liabilities, obligations, costs, or expenses can be shown to have been provided for or reserved against in the calculation of the Net Premium.
(e) In the event a claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type Action for indemnification under this Article VII has been finally determined, the amount of multiple, except, in each case, such final determination shall be paid (i) in if the event of diminution of value Indemnitee is a Retrocessionaire Indemnified Person, by the SP Parties to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderRetrocessionaire Indemnified Person and, (ii) if the Indemnitee is a SP Indemnified Person, by the Retrocessionaire to a SP Indemnified Person, in each case on demand by wire transfer of immediately available funds to an account designated by the SP Parties or the Retrocessionaire, as applicable. A claim or an Action, and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VII when the Parties have so determined by mutual agreement or, if disputed, when a final non-appealable Order has been entered into with respect to such claim or Action.
(f) Notwithstanding anything contained in this Agreement to the extent actually recovered by contrary, in the event that any fact, event, or circumstance that results in an adjustment under Section 2.4 would also constitute a third party breach of or inaccuracy in any of the SP Parties’ representations, warranties, covenants, or agreements under this Agreement, the SP Parties shall have no obligation to 1008797259v13 indemnify any Retrocessionaire Indemnified Person with respect to such breach or inaccuracy provided the relevant adjustment has been made.
(including g) The Parties acknowledge and agree that, except (i) as provided in Section 2.4 and Section 9.7(g), (ii) equitable remedies that cannot be waived as a Governmental Body) from an Indemnified Personmatter of law, or (iii) in the event that a Party is finally determined by a court of Intentional Fraudcompetent jurisdiction to have committed a fraud regarding such Party’s representations, criminal activity warranties, covenants or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties other agreements set forth in this Agreement or in any certificate furnished in connection with the Closing, if the Closing occurs, their sole and exclusive remedy following the Closing at law or equity with respect to this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to , the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensestransactions contemplated hereby, or (ii) for any Damages other matter relating to any matter Party or its Affiliates prior to the extent that there is included Closing, in each case regardless of the Interim Financial Statements a specific legal theory under which such liability or reserve relating obligation may be sought to such matter.
(f) For purposes of determining (i) be imposed, whether there has been any misrepresentation sounding in contract or breach of a representation in tort, whether at law or warranty and (ii) the amount of any Damages resulting therefromin equity, all qualifications or exception in any representation or warranty relating to or referring otherwise, shall be pursuant to the terms “material”, “materiality”, “Material Adverse Effect”, “provisions set forth in all material respects” or any similar qualification, term or phrase shall be disregardedthis Article VII.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Master Agreement (SiriusPoint LTD)
Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except Other than in respect of Intellectual Property Losses as set out in Section 8.4(c) below, the Seller Parties shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $42,000 (the “Basket”), in which event the Seller Parties shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first Dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a)(i8.2(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 4,400,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first Dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a) shall not exceed the Cap.
(c) The Seller Parties shall only be liable to the Buyer Indemnitees for indemnification under Section 8.2(a) and / or Section 8.2(c) in respect of Losses arising from the Intellectual Property Assets and Intellectual Property Agreements included in the Purchased Assets (the “Intellectual Property Losses”) from the Closing Date until the third anniversary of the Closing Date in an amount that shall not exceed the aggregate of: (i) the Holdback Amount, to the extent such amount has not been released to Seller or otherwise used to satisfy any Loss and (ii) the Seller shall have no liability value of the Genasys Common Stock as follows (A) for indemnification under Section 7.2(a)(i) unless and the period that is from the Closing Date until the aggregate amount first anniversary of the Closing Date, up to the full value of the Genasys Common Stock as of such Damages exceeds $250,000 date; (B) for the period that is from the first anniversary of the Closing Date to the second anniversary of the Closing Date, up to two-thirds of the full value of the Genasys Common Stock as of such date; (C) for the period that is from the second anniversary of the Closing Date to the third anniversary of the Closing Date, up to one-third of the full value of the Genasys Common Stock as of such date; and (D) for the period that is from the third anniversary of the Closing Date and onwards, none of the value of the Genasys Common Stock as of such date; and in each case, as not otherwise already used to satisfy any Loss (the “Indemnification DeductibleIntellectual Property Cap”); . For greater certainty, from the third anniversary of the Closing Date and provided further that onwards, the Seller Parties shall not be liable to the Buyer Indemnitees pursuant to Section 8.2(a) and / or Section 8.2(c) in respect of any Intellectual Property Losses and the case Intellectual Property Cap shall be deemed to be zero dollars for such period. In addition, at no time shall the Seller Parties be liable for any Intellectual Property Losses in respect of a Non-Practicing Entity Claim.
(d) Notwithstanding the foregoing, the limitations set forth in Section 8.4(a) and Section 8.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty in Section 4.1, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 4.2, Section 4.8, Section 4.9, Section 4.19, Section 4.21, Section 4.24, Section 5.1, Section 5.2 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement5.4.
(e) No Buyer Indemnified Person For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating determined without regard to any matter to the extent that there is included materiality, Material Adverse Effect or other similar qualification contained in the Interim Financial Statements a specific liability or reserve relating otherwise applicable to such matterrepresentation or warranty.
(f) For purposes Any insurance proceeds actually received by an Indemnified Party under any insurance policy in connection with a claim, net of determining (i) whether there has been any misrepresentation deductibles, premiums increases and any other costs or breach of a representation expenses incurred in connection with securing or warranty and (ii) obtaining such insurance proceeds, shall be taken into account in calculating the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedLosses associated with such claim.
(g) Seller makes No Indemnified Party shall be entitled to claim as a Loss any special, consequential or punitive damages (including damages for loss of profits) except to the extent such damages are awarded to a third party in connection with a Third Party Claim.
(h) An Indemnified Party shall not be entitled to double recovery for any Loss even though such Loss may have resulted from the breach of one or more representations, warranties or covenants in this Agreement, and no representations or warranties regarding the amount or availability claim can be made by any such Indemnified Party in respect of any net operating lossmatter for which an adjustment to the Purchase Price has been made pursuant hereto.
(i) No claim for indemnity pursuant to this Agreement may be made after the survival date for the applicable representation, capital loss, tax credit carryover warranty or other Tax asset covenant as set out in Section 8.1.
(j) Nothing in this Agreement shall in any way restrict or liability limit the general obligation at Law of an Indemnified Party to mitigate any Losses which it may suffer or incur by reason of the Acquired Companies in breach by an Indemnifying Party of any taxable period (representation, warranty, agreement or portion thereof) beginning after covenant of the ClosingIndemnifying Party under this Agreement or any Ancillary Document.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02, Section 9.03 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller and the Seller Company shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i9.02(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 9.02(a) exceeds $250,000 50,000 (the “Indemnification DeductibleBasket”); , in which event the Seller and provided further that Company shall be required to pay or be liable for all such Losses (subject to the limitations contained in Section 9.05(d) and Section 9.05(e)) from the case first dollar.
(b) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Basket, in which event Seller shall be required to pay or be liable for all such Losses (subject to the limitations contained in Section 9.05(e)) from the first dollar.
(c) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.04(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.04(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar.
(d) Company shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02(a) to the extent the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds the Company Purchase Price.
(e) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02, except for under Section 9.02(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date or Section 9.03, except for under Section 9.03(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date, to the extent the aggregate amount of all Losses of the Buyer Indemnitees in respect of indemnification under Section 9.02, except for under Section 9.02(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date or Section 9.03, except for under Section 9.03(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date, exceeds Ten Thousand Dollars ($10,000.00).
(f) Notwithstanding the foregoing, the limitations set forth in Section 9.05(a), Section 9.05(c), and Section 9.05(d) and Section 9.05(e) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company representation or warranty with respect to Fundamental RepresentationRepresentations, the but provided that Seller shall not be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy Indemnities for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages indemnification under Section 7.2(a9.02(a) shall not exceed the aggregate Purchase Price actually received solely for or by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect reason of any Damages to the extent such Damages were taken into account inaccuracy in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating with respect to or referring Fundamental Representations set forth in Article III to the terms “material”, “materiality”, “Material Adverse Effect”, “in extent the aggregate amount of all material respects” such Losses solely for or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability by reason of any net operating loss, capital loss, tax credit carryover inaccuracy in or other Tax asset breach of any representation or liability warranty with respect to Fundamental Representations set forth in Article III exceeds fifty percent (50%) of the Acquired Companies Vicis Purchase Price and Company shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02(a) solely for or by reason of any inaccuracy in or breach of the representation or warranty set forth in Section 3.26 to the extent the aggregate amount of all Losses solely for or by reason of any taxable period (inaccuracy in or portion thereof) beginning after breach of the Closingrepresentation or warranty set forth in Section 3.26 exceeds the Company Purchase Price.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional FraudSubject to Section 8.04(f) below, criminal activity or willful breaches of covenants, any Damages for which the Seller Buyer Indemnitees shall not be liable indemnified pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller 8.02 with respect to any such Damages, whether or not indemnifiable Loss if the entirety aggregate of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the all payments from Sellers Parties for Losses for which Buyer Indemnified Persons for such Damages Indemnitees are indemnified pursuant to Section 7.2(a)(i) 8.02 has exceeded the Purchase Price. Notwithstanding the foregoing, Buyer Indemnitees shall be indemnified for all indemnifiable Losses in excess of the Indemnification Deductible up Purchase Price that arise from or are related to an amount fraud or a deliberate or willful breach or intentional misrepresentation on the part of any Seller Party in connection with the transactions contemplated by this Agreement.
(b) Subject to Section 8.04(f) below, Seller Indemnitees shall not be indemnified pursuant to exceed $250,000 Section 8.03 with respect to any indemnifiable Loss if the aggregate of all payments from Buyer or Advance America for Losses for which Seller Indemnitees are indemnified from Buyer pursuant to Section 8.03 has exceeded the Purchase Price. Notwithstanding the foregoing, Seller Indemnitees shall be indemnified for all indemnifiable Losses in excess of the Purchase Price that arise from fraud or a deliberate or willful breach or intentional misrepresentation on the part of Buyer or Advance America in connection with the transactions contemplated by this Agreement.
(c) For purposes of this Article VIII, and other than with respect to the “Cap”representations and warranties set forth in Section 3.06, Section 3.08(a), Section 3.09(a)(xiii), Section 3.10(a), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”3.18(c); and provided further that in the case of , any inaccuracy in or breach of any Company Fundamental Representation, the Seller representation or warranty shall be directly liable determined without regard to the Buyer Indemnified Persons any materiality, Material Adverse Effect, or other similar qualification contained in or otherwise applicable to the extent such Damages are not covered by the Indemnification Insurance Policy for representation or warranty. For all purposes of this Agreement, “Losses” shall be net of (i) any reason insurance or other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price recoveries actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything Indemnified Party or its Affiliates in connection with the facts giving rise to the contrary hereinright of indemnification, except for Damages resulting from Intentional Fraudbut taking into account the present value of any reasonably anticipated premium adjustments, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreementdeductibles and other costs associated therewith, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price any Tax benefit actually paid received by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive Indemnified Party or its Affiliates, net of any claim to consequentialTax costs actually incurred by the Indemnified Party or its Affiliates, punitive or indirectarising in connection with the accrual, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personincurrence, or (iii) in the event payment of Intentional Fraud, criminal activity or willful breaches of covenantssuch Losses.
(d) An Indemnified Person entitled to No indemnification shall be made for any Loss already previously indemnified by payment by an Indemnifying Person pursuant to this Article VII with respect Party to any claim Indemnified Party or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute any Loss for which a breach of two or more representations and/or warranties set forth in this AgreementPost-Closing Adjustment was made.
(e) No Buyer Indemnified Person Notwithstanding anything herein to the contrary, no Indemnifying Party shall be entitled required to indemnification under this Agreement indemnify any Indemnified Party pursuant to Section 8.02 or 8.03, as applicable, until all Losses incurred by the Indemnified Party have exceeded One Hundred Thousand Dollars (i$100,000.00) in respect of (the “Indemnification Threshold”), at which point the Indemnifying Party shall be obligated to indemnify the Indemnified Party from and against all Losses relating back to the first dollar; provided, however, that the Indemnification Threshold shall not apply to any Damages CAM charges, rent, utilities, or property taxes that are Retained Liabilities and Parent shall promptly pay all such items that are Retained Liabilities and reimburse Buyer within ten Business Days to the extent Buyer pays any such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matteritems.
(f) For With respect to each Seller, the obligation of such Seller and Parent to indemnify Buyer Indemnitees shall be limited to the amount of such Seller’s Indemnification Cap as shown on Schedule 8.02. Notwithstanding the foregoing, for purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) Buyer Indemnitees have reached the amount of any Damages resulting therefromIndemnification Threshold, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase Losses incurred by Buyer Indemnitees shall be disregardedaggregated; Buyer Indemnitees shall not have to reach the Indemnification Threshold with respect to each Seller individually to be entitled to indemnification from such Seller.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advance America, Cash Advance Centers, Inc.)
Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable Each party’s liability with respect to Losses pursuant to Section 7.2(a)(i) 11.2 and Section 11.3 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) limited in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by Price. Notwithstanding the Seller pursuant to this Agreementforegoing, Losses arising from claims based upon Fraud shall not capped.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall Indemnitee will be entitled to indemnification under this Agreement for any Loss arising from a breach of any representation or warranty set forth in this Agreement (i) and the amount of any Loss incurred in respect of such breach will not be included in the calculation of any Damages limitation on indemnification set forth in this Agreement) to the extent that such Damages were Loss or Liability (A) is accurately and specifically accrued, provided or reserved for, or otherwise reflected or taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or Interim Financial Statements (ii) for any Damages relating to any matter but only to the extent of such accrual or reserve); (B) arises from any item or matter that there is included or otherwise taken into account in or was specifically raised as part of the settlement of items of the Adjustment Statement (including, for the avoidance of doubt, those items set forth in the Interim Financial Statements a specific liability balance sheet included therewith delivered pursuant to Section 3.2(a)); or reserve relating to such matter(C) arises out of changes in accounting principles or applicable Laws, rules, or regulations or interpretations thereof announced after the Closing Date.
(fc) For purposes Seller will not be required to indemnify any Buyer Indemnitee to the extent of determining (i) whether there has been any misrepresentation or breach Losses that are determined by Final Adjudication to have resulted from the Fraud of a representation or warranty Buyer Indemnitee.
(d) Seller will not be required to indemnify any Buyer Indemnitee to the extent any Loss is contingent, unless and until such contingent Loss becomes an actual Loss of such Buyer Indemnitee that is due and payable; provided that, the foregoing shall not release Seller from its obligation under Article 11 (iisubject in all respects to the terms, conditions and limitations of this Article 11) to indemnify Buyer for the cost of defending any Third Party Claims with respect to contingent Losses which are brought and noticed in accordance with the requirements of this Article 11 prior to the expiration of the applicable survival period, and Buyer Indemnitees shall have the right to make a claim for indemnification with respect to a contingent Loss prior to the expiration of the applicable survival period set forth in Section 11.1, and if and to the extent such claim is duly noticed and the applicable Buyer Indemnitee states and advances the substance of the underlying claim (but not, for the avoidance of doubt, the amount of any Damages resulting therefromLosses, all qualifications or exception in any representation or warranty relating to or referring if the Losses remain contingent at such time) pursuant to the terms “material”indemnification procedures set forth in this Article 11 prior to the expiration of the applicable survival period, “materiality”Buyer Indemnitee shall be entitled to indemnification in respect of actual Loss incurred in respect of such claim following the expiration of the applicable survival period, “Material Adverse Effect”, “subject in all material respects” or any similar qualificationrespects to the other terms of Article 11, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding notwithstanding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability expiration of the Acquired Companies in any taxable period applicable survival period. No Buyer Indemnitee will have the right to assert and (A) claim for indemnification of a Loss or (B) claim with respect to which such person has taken action (or portion thereofcaused action to be taken) beginning after to accelerate the Closingtime period in which such matter is asserted or payable.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except The aggregate amount of Losses for which the Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, shall be entitled to indemnification pursuant to this Article VIII shall not exceed $100,000 (the “Indemnification Cap”), other than with respect to the following: claims arising from Intentional based on Fraud, criminal activity or willful breaches misconduct of covenantsSeller (the claims described in clauses (i), any Damages for which (ii), and (iii), the “Seller Special Indemnification Matters”) and claims based on Fraud, criminal activity or willful misconduct of Buyer (the claims described in clauses (i), (ii) and (iii), the “Buyer Special Indemnification Matters”).
(b) Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i) 8.02 unless and until the aggregate amount of such Damages exceeds Losses in respect of indemnification under Section 8.02 exceed $250,000 50,000 (the “Indemnification DeductibleThreshold”) (provided that any individual or series of related Losses which do not exceed $50,000 (“De-Minimis Losses”) shall not be counted towards the Threshold); and provided further that in , at which time the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Buyer Indemnified Party shall be directly indemnified for the amount of Losses in excess of the Threshold up to the Cap, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that such Losses to be paid solely from return of shares of stock held by Seller in Buyer; provided, further, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Buyer Indemnified Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to Seller Special Indemnification Matters. Buyer shall not be liable to the Buyer Seller Indemnified Persons to Parties for indemnification under Section 8.03 unless and until the extent such Damages are aggregate amount of Losses in respect of indemnification under Section 8.03 exceeds the Threshold (provided that De-Minimis Losses shall not covered by be counted towards the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedThreshold), up to an amount equal to the Purchase Price actually received by at which time the Seller pursuant Indemnified Party shall be indemnified for the amount of Losses in excess of the Threshold, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Seller Indemnified Party shall be entitled to this Agreement.
(b) Notwithstanding anything to the contrary hereinbe indemnified for, except for Damages all Losses arising out of or resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant indemnification obligation with respect to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementSpecial Indemnification Matters.
(c) The parties hereto expressly waive Payments by the Indemnifying Party (as defined in Section 8.05) pursuant to Article VIII in respect of any claim Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (as defined in Section 8.05) in respect of any such claim.
(d) Notwithstanding the foregoing, in no event shall the Indemnifying Party be liable to the Indemnified Party for any punitive, incidental, consequential, punitive special or indirectindirect damages, lost profitsincluding loss of future revenue or income, diminution in valueloss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value multiple except to the extent that such diminution of value is the probable adjudicated and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) owed to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementThird Party Claim.
(e) No Buyer Each Indemnified Person Party shall be entitled take, and cause its Affiliates to indemnification under this Agreement (i) in respect take, all reasonable steps to mitigate any Loss, including by pursuing insurance claims and claims against third parties, and shall reasonably consult and cooperate with the Indemnifying Party with a view toward mitigating Losses upon becoming aware of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness event or Company Transaction Expensescircumstance that would be reasonably expected to, or (ii) for any Damages relating does, give rise to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterLosses.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agriforce Growing Systems Ltd.)
Certain Limitations. The Buyer Indemnitees and Seller Indemnitees rights to indemnification under this Article IX shall be limited as follows:
(a) Except No Claim Notice for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall indemnification may be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller provided with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Claim for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or other agreement hereunder, in this Agreement beyond the survival period specified in Section 9.1.
(b) The recovery of Losses by any Buyer Indemnitee pursuant to clause (i) or (ii) to the extent actually of Section 9.3(b), together with all Losses recovered by a third party other Buyer Indemnitees under such provision, shall be limited to an aggregate of $15,000,000.
(including a Governmental Bodyc) from The recovery of Losses by any Seller Indemnitee pursuant to Section 9.2, together with all Losses recovered by other Seller Indemnitees under such provision, shall be limited to an Indemnified Personaggregate of $15,000,000, provided, however, that the foregoing limitation shall not apply to any claim for indemnification or (iiirights of Seller under Sections 2.3(d), 2.4(c) in the event of Intentional Fraud, criminal activity or willful breaches of covenants5.13.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim No Buyer Indemnitee or group of related claims Seller Indemnitee shall only be entitled to recover once for Losses pursuant to Section 9.3(b)(i) and (ii) or Section 9.2, respectively, unless:
(i) the Buyer Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this Article IX in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent of such claim excess; and
(ii) after the Deductible has been met, the Buyer Indemnitees, collectively, or group the Seller Indemnitees, collectively, shall have suffered or incurred Losses with respect to the individual Claim or series of related claims notwithstanding Claims that arise out of substantially the same facts and circumstances for which recovery is sought in excess of $125,000, in which case the full amount of such Losses shall be recoverable, subject to the limitations imposed by the other provisions of this Section 9.4. Notwithstanding the foregoing, any claim or group for indemnification (and the Losses recoverable therefrom) that may be brought under both Section 9.3(b)(i), on the one hand, and any other subsection of related claims may constitute a breach of two or more representations and/or warranties set forth Section 9.3, on the other hand, shall not be subject to any limitation specified in this AgreementSection 9.4(d).
(e) No Notwithstanding anything to the contrary in this Agreement:
(i) For purposes of determining whether a representation or warranty contained herein, other than those set forth in Sections 3.17, 3.21, 4.4 and 4.5, has been breached for purposes of this Article IX and determining the amount of Losses suffered thereby by any Buyer Indemnified Person shall be entitled to indemnification under Indemnitee or Seller Indemnitee, as the case may be, each representation and warranty set forth in this Agreement (iother than as aforesaid), and any qualification with respect to any such representation or warranty set forth in the TexStar Disclosure Schedule in the case of representations or warranties by the Seller, shall be read without regard or giving effect to any “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that may be contained in any such representation or warranty; provided, however, that the defined term “Material Contract” and all “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that are contained in any defined term shall be given effect;
(ii) in respect No investigation or knowledge of any Damages Party, whenever undertaken or however obtained, shall limit such Party’s right to indemnification hereunder in any manner; and
(iii) The provisions of this Article IX shall apply in such a manner as not to give duplicative effect to any item of adjustment and if there has been an adjustment to the Aggregate Consideration for any Loss, there shall not be any charge against the Deductible and no Indemnitee may claim a breach of any representation or warranty with respect to any Loss that gave rise to such adjustment in the Aggregate Consideration pursuant to Section 2.3 to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter amount of such Loss given effect in such adjustment to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterAggregate Consideration.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the The amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Losses required to or referring be paid pursuant to this Article IX shall be reduced to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability extent of any net operating losstax benefits actually realized, capital loss, tax credit carryover or other Tax asset insurance proceeds directly or liability of indirectly received by the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingIndemnified Party.
Appears in 1 contract
Sources: Contribution Agreement (Regency Energy Partners LP)
Certain Limitations. Notwithstanding anything otherwise provided in Section 10 or otherwise pursuant to this Agreement:
(a) Except for claims Losses arising from Intentional as a result of Actual Fraud, criminal activity or willful breaches of covenants, any Damages for as to which the Seller limitations of this Section 10.6(a) shall be liable not apply, KCCO will not have any obligation to indemnify and hold harmless PHIL pursuant to this Section 7.2(a)(i10 in respect of Losses arising under Section 10.1 unless and until the amount of the aggregate Losses claimed by PHIL exceeds Five Hundred Sixteen Thousand Five U.S. Dollars ($516,005) (the “Basket”), whereupon KCCO shall be satisfied solely by recovery by Buyer under indemnify, defend, protect and hold harmless the Indemnification Insurance Policy and Buyer will have no recourse against other party for the Seller with respect to any such Damages, whether or not the entirety amount of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) all Losses in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Basket, and (ii) the Seller shall have no KCCO’s aggregate liability in respect of claims for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 10.1 shall not exceed Twenty-Five Million Eight Hundred Thousand Two Hundred Sixty-Six U.S. Dollars ($25,800,266).
(b) Notwithstanding anything to the contrary herein, except Except for Damages resulting from Intentional Losses arising as a result of Actual Fraud, criminal activity or willful breaches as to which the limitations of covenants, (i) the aggregate liability of the Seller for all Damages under this Section 7.2(a10.6(b) shall not exceed the aggregate Purchase Price actually received by the Seller apply, PHIL will not have any obligation to indemnify and hold harmless KCCO pursuant to this AgreementSection 10 in respect of Losses arising under Section 10.2 unless the aggregate amount of all such Losses incurred or suffered by KCCO exceeds the Basket at which point PHIL will indemnify KCCO for all Losses in excess of the Basket, and (ii) the PHIL’s aggregate liability in respect of Buyer claims for all Damages under indemnification pursuant to Section 7.2(b) shall 10.2 will not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPrice.
(c) The parties hereto expressly waive amount of any claim Losses for which an Indemnifying Party shall be liable hereunder shall be determined after deducting therefrom (a) the amount of any insurance proceeds actually received from a third-party insurer and any other amounts actually recovered from a third party pursuant to consequential, punitive indemnification or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptotherwise, in each casecase net of costs and expenses (including collection expenses, premium increases, retro-premiums and any retention amounts), and (ib) the amount of any net cash tax benefit actually realized as a result of such Loss in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant current or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsany prior taxable year.
(d) An Indemnified Person entitled Except with respect to indemnification by an Indemnifying Person pursuant to this Article VII injunctive and other non-monetary equitable relief, PHIL and KCCO each acknowledge and agree that, from and after the Closing, their sole and exclusive remedy with respect to any claim or group of related and all claims shall only be entitled for money damages pursuant to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person Agreement shall be entitled to indemnification under this Agreement (i) in respect of any Damages pursuant to the extent such Damages were taken into account in the calculation provisions of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterthis Section 10.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.08 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnified Parties for claims arising from Intentional Fraudindemnification under Section 8.02(a), criminal activity or willful breaches Section 8.02(d) and/or Section 8.08 until the aggregate amount of covenants, any Damages all Losses for which the Sellers are required to indemnify the Buyer Indemnified Parties under Section 8.02(a), Section 8.02(d) and Section 8.08 exceeds Ten Million Dollars ($10,000,000) (the “Deductible”), in which event the Sellers shall only be required to pay or be liable for such Losses in excess of the Deductible.
(b) Buyers shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03(a) until the aggregate amount of all Losses for which the Buyers are required to indemnify the Seller Indemnified Parties under Section 8.03(a) exceeds the Deductible in which event the Buyers shall only be required to pay or be liable for such Losses in excess of the Deductible.
(c) Notwithstanding anything in this Agreement or the CIT Bank Agreement or any Delivered Lost Note Affidavit to the contrary, with respect to any claims as to which the Buyer Indemnified Parties may be entitled to indemnification under Section 8.02(a), Section 8.02(d) and/or Section 8.08, if the aggregate Losses (excluding any attorneys’ fees relating to such Losses) relating to any single Transferred Interest or CIT Bank Transferred Interest are less than Sixty Five Thousand Dollars ($65,000) (such amount, the “Per Claim Threshold”), none of such Losses shall be counted toward the Deductible. For the avoidance of doubt, the Per Claim Threshold shall not apply once the Deductible has been satisfied.
(d) At the end of each three (3)-month period during the period from the October Closing Date through the date on which the Deductible has been satisfied, each Party shall provide written notice (along with reasonable supporting documentation) to the other Parties of the incurrence of any all Losses during such three (3)-month period which will, or can be reasonably expected to, count toward the Deductible after taking into account the limitations set forth in this Section 8.04.
(e) Notwithstanding anything in this Agreement, the CIT Bank Agreement or any Lost Note Affidavit to the contrary, in no event shall Sellers be required to indemnify the Buyer Indemnified Parties for or on account of Losses resulting from, arising out of or relating to any Covered Repair or Denial Actions (even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are alleged to have resulted from, arisen out of or relate to a breach by Sellers or CIT Bank of any of their representations, warranties, covenants or agreements set forth herein or in the CIT Bank Agreement) for any amount in excess of eight million five hundred thousand dollars ($8,500,000) (the “Repair and Denial Cap”) after the Deductible has been satisfied; provided, however, that if the Final Purchase Price Adjustment Calculation reflects a Missing Remaining Required Document Percentage of more than twenty percent (20%), then the Repair and Denial Cap shall be automatically increased to ten million dollars ($10,000,000) without any further action of the Parties hereto. Any such increase in the Repair and Denial Cap shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any failure of the Applicable Sellers to deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans and neither Sellers nor any of their Affiliates shall be required to indemnify, hold harmless or otherwise compensate or reimburse any Buyer Indemnified Parties, pursuant to Article VIII hereof, pursuant to any Lost Note Affidavit, or otherwise, for any Losses incurred or sustained by, or imposed upon, any Buyer Indemnified Party as a result of, related to or arising out of any failure of the Applicable Sellers to deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans.
(f) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 7.2(a)(i8.02(a), Section 8.03(a) or Section 8.08 (which liability shall not include any Losses resulting from, arising out of or relating to any Covered Repair or Denial Actions even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are also alleged to have resulted from, arisen out of or relate to a breach by Sellers or CIT Bank of any of their representations or warranties set forth herein or in the CIT Bank Agreement), as the case may be, shall not exceed thirty three million dollars ($33,000,000).
(g) Payments by an Indemnifying Party pursuant to Section 8.02, Section 8.03 or Section 8.08 in respect of any Loss shall be satisfied solely limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with Indemnified Party in respect to any such Damages, whether or not the entirety of any such Damages is covered by claim; provided, however, such payments shall include the Indemnification Insurance Policy amount of any out-of-pocket expenses incurred in connection with pursuing recovery under such insurance or whether indemnity, contribution or not other similar agreement. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(h) In no event shall any Indemnifying Party be liable to indemnify any Indemnified Party pursuant to this Article VIII for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity or diminution of value or any damages based on any type of multiple (except, in the Indemnification Insurance Policy has expiredcase of punitive, been terminated special, or lapsed; provided exemplary damages, to the extent that such damages are actually paid or awarded to a third-party in connection with a Third Party Claim).
(i) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the Seller minimum extent necessary to remedy the breach that gives rise to such Loss.
(j) Notwithstanding anything in this Agreement or the CIT Bank Agreement to the contrary, (a) the Property Taxes Deduct shall be directly liable to the sole and exclusive remedy of the Buyer Indemnified Persons Parties for such Damages pursuant to Section 7.2(a)(i) any Losses or diminution in excess value of the Indemnification Deductible up Purchased Assets resulting from, caused by or arising out of any Tax-related Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to an amount not to exceed $250,000 any Transferred Loan or Transferred CIT Bank Loan (the collectively, “CapTax Lien Losses”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Other Charges Deduct shall be directly liable to the sole and exclusive remedy of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy Parties for any reason Losses or diminution in value of the Purchased Assets or the CIT Bank Purchased Assets resulting from, caused by or arising out of any other than the lack of good faith efforts by the Buyer Indemnified Persons Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to seek recovery thereunder any Transferred Loan or Transferred CIT Bank Loan (collectively, “Other Lien Losses”) and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything in no event shall the Applicable Sellers be required to the contrary herein, except indemnify any Buyer Indemnified Party for Damages resulting from Intentional Fraud, criminal activity any Tax Lien Losses or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Other Lien Losses pursuant to this Article VII with respect VIII or otherwise pursuant to any claim this Agreement or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this the CIT Bank Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sutherland Asset Management Corp)
Certain Limitations. The indemnification provided for in Section 22.2 and Section 22.3 shall be subject to the following limitations:
(a) Except No Purchaser Indemnitee will be entitled to recover Damages pursuant to Section 22.2, and L▇▇▇ and MIG will not be liable to any Purchaser Indemnitee for claims arising from Intentional Fraudany Damages, criminal activity until the aggregate amount of all Damages in respect to Indemnification under Section 22.2(a) exceed $20,000 (the “L▇▇▇ and MIG Basket”) in which event L▇▇▇ and MIG will only be required to pay or willful breaches be liable for all Damages that exceed the L▇▇▇ and MIG Basket. The aggregate amount of covenants, any all Damages for which the Seller shall MIG and L▇▇▇ will be liable pursuant to Section 7.2(a)(i22.2(a) shall will not exceed $3,300,000.00 (the “L▇▇▇ and MIG Cap”), except in the case of breaches of Fundamental Representations (in which case the Cap will be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable equal to the Buyer Indemnified Persons for such Purchase Price (the “L▇▇▇ and MIG Fundamental Cap”). No Purchaser Indemnitee will be entitled to recover Damages pursuant to Section 7.2(a)(i) 22.2 and L▇▇▇ and MIG will not be liable to any Purchaser Indemnitee for any Damages which when aggregated with any amounts previously paid or to be paid by L▇▇▇ or MIG pursuant to Section 22.2 would be in excess of the Indemnification Deductible up Purchase Price.
(b) No Seller Indemnitee will be entitled to an amount not recover Damages pursuant to exceed $250,000 (the “Cap”)Section 22.3, and (ii) the Purchaser and Parent will not be liable to any Seller shall have no liability Indemnitee for indemnification under Section 7.2(a)(i) unless and any Damages, until the aggregate amount of such all Damages exceeds in respect to Indemnification under Section 22.3(a) exceed $250,000 20,000 (the “Indemnification DeductiblePurchaser and Parent Basket”) in which event Purchaser and Parent will only be required to pay or be liable for all Damages that exceed the Purchaser and Parent Basket. The aggregate amount of all Damages for which Purchaser and Parent will be liable pursuant to Section 22.2(a) will not exceed $3,300,000.00 (the “Purchaser and Parent Cap”); and provided further that , except in the case of any inaccuracy breaches of Fundamental Representations (in or breach of any Company which case the Cap will be equal to $11,000,000.00 (the “Purchaser and Parent Fundamental RepresentationCap”). Except for failure to pay the Closing Purchase Price, the no Seller shall Indemnitee will be directly entitled to recover Damages pursuant to Section 22.3 and Parent and Purchaser will not be liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy any Seller Indemnitee for any reason other than Damages which when aggregated with any amounts previously paid or to be paid by Purchaer or Parent pursuant to Section 22.3 would be in excess of the lack the sum of good faith efforts by (a) $11,000,000 plus (b) the Buyer Indemnified Persons to seek recovery thereunder and comply with value of the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price Parent Shares actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability L▇▇▇ under Section 10.3 whose value is determined as of the Seller for all Damages under Section 7.2(a) shall not exceed Effective Date (based upon the aggregate Purchase Price actually received by volume weighted average price of the Seller pursuant to this Agreement, and (ii) Parent Common Stock over the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed five trading days immediately preceding the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.Effective Date). IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" " DOCPROPERTY "SWDocID" 4858-7384-8369v5 2954978-000007 09/08/2022" "" 4858-7384-8369v5 2954978-000007 09/08/2022
(c) The parties hereto expressly waive limitations set forth in Section 22.4(a) and Section 22.4(b) will not apply to Damages based upon, arising out of, with respect to or by reason of any claim to consequentialfraud, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity intentional misrepresentation or willful breaches of covenantsmisconduct by Purchaser, Parent, L▇▇▇ or MIG, as applicable.
(d) An Indemnified Person entitled to indemnification If any Damages incurred by an Indemnifying Person pursuant indemnified party results in any entitlement to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating insurance recovery to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) party then the amount of any Damages resulting therefromsuch damages payable by the indemnifying party will be adjusted to reflect such benefit, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability net of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability reasonable costs of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closingrecovery.
Appears in 1 contract
Certain Limitations. (a) Except The Purchaser Indemnified Parties shall not be entitled to indemnification for claims (i) any Purchaser Subject Losses, unless the aggregate of all Purchaser Subject Losses incurred or suffered by the Purchaser Indemnified Parties exceeds, on a cumulative basis, $2,250,000, and then only to the extent of such excess, or (ii) any Purchaser Subject Losses arising or resulting from Intentional Fraudany matter or series of related matters where the total amount of Purchaser Subject Losses arising or resulting therefrom is less than $25,000.
(b) The maximum amount of Purchaser Subject Losses that may be recovered by the Purchaser Indemnified Parties shall be the amount of funds remaining in the Escrow Account. The maximum aggregate amount of Losses that may be recovered by the Purchaser Indemnified Parties pursuant to the provisions of Section 12.02(e) (other than as a result of a breach of Sections 8.07 or 8.08), criminal activity (f) or willful (g) or for breaches of covenantsthe Fundamental Representations, shall be the Purchase Price.
(c) To the extent the E Sellers have any Damages joint and several indemnification obligation pursuant to Section 12.02, the Purchaser Indemnified Parties shall provide to each E Seller (i) notice of its Pro Rata Share of such indemnification obligation and (ii) a reasonable opportunity to pay its Pro Rata Share thereof for a period of at least 30 days before pursuing the other E Seller for any Losses for which the notified E Seller shall be liable is primarily responsible.
(d) Except as otherwise provided in Section 9.02(d), any obligations of the Sellers to provide indemnification pursuant to Section 7.2(a)(i12.02 shall first be satisfied from the funds remaining in the Escrow Account and second through direct payment by the Sellers (in accordance with the terms and subject to the limitations set forth herein).
(e) In calculating amounts payable to any Purchaser Indemnified Party, the amount of indemnified Losses shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety computed net of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) payments actually received by the Seller shall be directly liable to the Buyer Purchaser Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Parties under any insurance policy, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent amounts actually recovered by the Purchaser Indemnified Parties from any other third party with respect to such Losses. Each party to this Agreement shall act in good faith and use commercially reasonable efforts to mitigate any Losses for which it is entitled to indemnification hereunder; provided, however, that none of the parties shall be required to curtail, modify or make any other changes to its businesses or operations, commence any Legal Proceedings against a third party (including a Governmental Body) from an Indemnified Person, or (iii) incur any material out-of-pocket expenses in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled order to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for mitigate such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterLosses.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) Subject to Section 12.05(g), the amount of any Damages resulting therefrom, all qualifications Losses of any Purchaser Indemnified Party shall be computed net of any Tax Benefits actually realized by any Purchaser Indemnified Party or exception in any representation or warranty relating to or referring its Affiliates by reason of such Loss to the terms “material”extent such Tax Benefits are realized during or prior to the taxable year in which the Purchaser Indemnified Party receives such indemnification payment in connection with such Loss. For purposes of this Section 12.05(f), “materiality”, “Material Adverse Effect”, “in all material respects” it shall be assumed that no Tax Benefits are derived with respect to any deductions realized by the Company that are allocated to members other than the Blocker Companies (or any similar qualification, term or phrase shall be disregardedsuccessor entity).
(g) Seller makes no representations or warranties regarding Notwithstanding Section 12.05(f), the amount or availability of any Losses for which indemnification is provided under Section 12.02(h) shall be computed net operating lossof any Tax Benefits actually realized by any Purchaser Indemnified Party in any year. To the extent that a Loss is initially computed without regard to a Tax Benefit and a Purchaser Indemnified Party (or any of its Affiliates) subsequently realizes a Tax Benefit with respect to such Loss, capital loss, tax credit carryover or other Tax asset or liability the Purchaser shall pay the Seller Representative for the benefit of the Acquired Companies in any taxable period Sellers the amount of such subsequently realized Tax Benefit. Such subsequently realized Tax Benefit will be paid within ten (10) days of filing the Tax Return with respect to which such Tax Benefit was actually realized (or portion thereoften (10) beginning after days of the Closingreceipt of a refund, if the Tax Benefit is in the form of a refund). The Purchaser shall cooperate in good faith with the Seller Representative to realize any Tax Benefits as promptly as permitted under applicable Law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Eagle Materials Inc)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that Following Closing:
(i) the Seller Sellers shall not be liable to Buyer Indemnified Persons under Section 10.2(a)(i) for any breach of or inaccuracy in any of the representations or warranties set forth in Article III (other than Fundamental Representations) unless the aggregate Losses incurred by the Buyer Indemnified Persons exceed (the “Basket”), and then the Sellers shall be directly jointly and severally liable to the Buyer Indemnified Persons for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Buyer Indemnified Persons arising from such Damages claims is less than (the “Mini Basket”) shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Buyer Indemnified Persons;
(ii) Buyer shall not be liable to the Seller Indemnified Persons under Section 10.2(c)(i) for any breach of or inaccuracy in any of Buyer’s representations or warranties (other than Fundamental Representations) unless the aggregate Losses incurred by the Seller Indemnified Persons exceed the Basket, and then Buyer shall be liable for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Seller Indemnified Persons arising from such claims is less than the Mini Basket shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Seller Indemnified Persons;
(iii) the aggregate amount required to be paid by the Sellers pursuant to Section 7.2(a)(i10.2(a)(i) in excess (other than with respect to breaches of Fundamental Representations), Section 10.2(a)(iv) and Section 10.2(b)(i) (other than with respect to breaches of the Indemnification Deductible up to an amount Fundamental Representations) shall not to exceed $250,000 (the “Cap”), and ;
(iiiv) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 required to be paid by Buyer pursuant to Section 10.2(c)(i) (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons with respect to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(aFundamental Representations) shall not exceed the aggregate Purchase Price Cap;
(v) in no event will any Seller be liable under this Article X for any Losses in excess of the cash proceeds or value of the Issued Units actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.Seller;
Appears in 1 contract
Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable have no further obligations under this Article IX for breaches of representations and warranties of the Seller, except for Damages with respect to which the Buyer Indemnified Persons for Indemnitee has given the Seller written notice prior to such Damages pursuant to date in accordance with Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless breaches of representations and until warranties of the aggregate amount of such Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, with respect to which the Seller shall be directly liable to Indemnitee has given the Buyer Indemnified Persons written notice prior to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply date in accordance with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 9.3.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received any claim by the a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages in respect of Seller's obligations to indemnify the Buyer Indemnitees under this Agreement, and (ii) Agreement shall exceed $200,000 in the aggregate liability (the "SELLER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Buyer for all Damages under Section 7.2(b) in respect of the indemnity obligations of Seller shall not exceed the aggregate Purchase Price actually paid Seller Indemnification Threshold, Seller shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Buyer pursuant to this AgreementIndemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Seller Indemnification Threshold shall be recoverable by Buyer against Seller in the event that the accumulated amount of Damages suffered by the Buyer Indemnitees shall exceed the Seller Indemnification Threshold.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary herein, in each casethe absence of fraud or willful breach of this Agreement (for which there shall be no limitation), (iin no event shall the maximum aggregate liability of Seller in respect of any claims by the Buyer Indemnitees against Seller pursuant to Section 9.1(a) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result for Damages suffered or incurred by any Buyer Indemnitees exceed 20% of the applicable breach value of a representation, warranty, covenant or agreement hereunder, the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSections 2.4 and 2.5).
(d) An Indemnified Person entitled Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by an Indemnifying Person Buyer Indemnitees against Seller in respect of (i) Excluded Liabilities pursuant to this Article VII with respect Section 9.1(b) or (ii) Taxes pursuant to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementSection 9.1(c).
(e) No Notwithstanding anything to the contrary herein, any claim by a Seller Indemnitee against Buyer Indemnified Person pursuant to Section 9.2(a) shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account payable by Buyer only in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter event and to the extent that there is included the accumulated amount of the Damages in respect of Buyer's obligations to indemnify under this Agreement shall exceed $200,000 in the Interim Financial Statements a specific liability aggregate (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Buyer shall exceed the Buyer Indemnification Threshold, Buyer shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or reserve relating to such matterincurred by the Seller Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Buyer Indemnification Threshold shall be recoverable by Seller against Buyer in the event that the accumulated amount of Damages suffered by the Seller Indemnitees shall exceed the Buyer Indemnification Threshold.
(f) For purposes Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Seller Indemnitees against Buyer in respect of determining (i) whether there has been any misrepresentation Assumed Liabilities pursuant to Section 9.2(b) or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Taxes pursuant to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 9.2(c).
(g) Seller makes Notwithstanding anything to the contrary herein, in no representations or warranties regarding event shall the amount or availability maximum aggregate liability of Buyer in respect of any net operating loss, capital loss, tax credit carryover claims by the Seller Indemnitees against Buyer pursuant to Section 9.2(a) for Damages suffered or other Tax asset or liability incurred by any Seller Indemnitees exceed 20% of the Acquired Companies value of the Purchase Price (as adjusted pursuant to Sections 2.4 and 2.5).
(h) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply, nor be limited in time to any taxable period claim by the Buyer Indemnitees against the Seller in respect of inadequate funding of the Employee Funds by the Seller.
(or portion thereofi) beginning after Except as set forth in Section 9.4, the Closingprovisions of Article IX shall be the sole remedy to the Parties for breach of contract.
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Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $20,000 (the “Basket”), criminal activity in which event Seller shall be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller Company shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under not exceed the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable Escrowed Shares pursuant to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Escrow Agreement (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Payments by the “Indemnification Deductible”); and provided further that Company pursuant to Section 8.02 in the case respect of any inaccuracy in or breach Loss shall be limited to the amount of any Company Fundamental Representationliability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, the Seller shall contribution or other similar payment received or reasonably expected to be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts received by the Buyer Indemnified Persons in respect of any such claim. The Buyer shall use its commercially reasonable efforts to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided recover under insurance policies or indemnity, contribution or other similar agreements for therein, the coverage limit being exceeded or coverage being denied), up any Losses prior to an amount equal to the Purchase Price actually received by the Seller pursuant to seeking indemnification under this Agreement.
(bd) Notwithstanding anything Payments by the Company pursuant to Section 8.02 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Buyer.
(e) In no event shall the Company be liable to the contrary hereinBuyer for any punitive, except for Damages resulting from Intentional Fraudincidental, criminal activity consequential, special or willful breaches indirect damages, including loss of covenantsfuture revenue or income, (i) loss of business reputation or opportunity relating to the aggregate liability breach or alleged breach of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability or diminution of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages value or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been The Buyer shall take, and cause its Affiliates to take, all reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Loss upon becoming aware of any Damages resulting therefromevent or circumstance that would be reasonably expected to, all qualifications or exception in any representation or warranty relating to or referring does, give rise thereto, including incurring costs only to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedminimum extent necessary to remedy the breach that gives rise to such Loss.
(g) Seller makes no The Company shall not be liable under this Article VIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies Company contained in any taxable period (this Agreement if the Company can demonstrate that Buyer had actual knowledge of such inaccuracy or portion thereof) beginning after breach prior to the Closing.
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Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that as set forth in the case last sentence of any inaccuracy in or breach of any Company Fundamental Representationthis Section 11.5, the Seller shall be directly liable obligated to indemnify a Purchaser Indemnified Party only when the aggregate of all Losses suffered or incurred by all Purchaser Indemnified Parties as to which a right of indemnification is provided under this Article 11 exceeds Three Hundred Seventy Five Thousand Dollars ($375,000) (the "Threshold Amount"). After the aggregate of all such Losses exceeds the Threshold Amount, the Seller shall be obligated to indemnify all Purchaser Indemnified Parties for all Losses in excess of the Threshold Amount suffered or incurred by a Purchaser Indemnified Party as to which a right of indemnification is provided hereunder. Except as set forth in the next succeeding sentence, the aggregate liability of Seller under this Article 11 shall not exceed Twenty-Five Million Dollars ($25,000,000) (the "Maximum Amount"). Notwithstanding the above, the Threshold Amount and Maximum Amount limitations shall not apply to the Buyer Indemnified Persons indemnification obligations of the Seller pursuant to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Sections 6.3, 11.2(a)(iii) and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied11.2(a)(viii), up to an amount equal to and the Purchase Price actually received payment of amounts by the Seller pursuant to this Agreementsuch Sections shall not count toward the calculation of the Threshold Amount or Maximum Amount.
(b) Notwithstanding anything to In the contrary hereinevent that any Purchaser Indemnified Party shall receive any payment from any other Person under any insurance policy, except indemnification agreement, warranty or other similar right in satisfaction of or recovery for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim relating to consequentiala Loss with respect to -99- 105 which such Purchaser Indemnified Party was indemnified by and received payment thereon from Seller, punitive or indirectthen such Purchaser Indemnified Party shall pay over to Seller, lost profitsafter deducting all costs and expenses incurred by such Purchaser Indemnified Party in recouping such payment, diminution in value, special, exemplary or similar damages or any damages based on any type the amount of multiple, except, in each case, (i) in the event of diminution of value such payment to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of it represents a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII double recovery with respect to such Loss. Notwithstanding the above, no Purchaser Indemnified Party shall be under any claim obligation to assert or group of related claims shall only be entitled to recover once for pursue any such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterLoss.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations:
(a) Except EWD and EWI will not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) or under Section 8.02(a) of the Stock Purchase Agreement with respect to any representations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement, criminal activity other than the Special Representations (as defined herein and in the Stock Purchase Agreement, and excluding Section 3.15(c) and (d) which, for the avoidance of doubt, will be subject to the Basket), until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWD and EWI will only be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket.
(b) The aggregate amount of all Losses for which the Seller shall EWD and EWI will be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under and Section 8.02(a) of the Indemnification Insurance Policy and Buyer Stock Purchase Agreement will have no recourse against not exceed the Seller following: (i) with respect to any such Damagesrepresentations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement), whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000 (the “Cap”), and (ii) with respect to the Seller Special Representations (as defined herein and in the Stock Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Stock Purchase Agreement, $750,000. In no event shall have no liability EWD and EWI be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the other Transaction Documents in excess of $17,000,000.
(c) Buyer will not be liable to EWD Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and CLF&P will not be liable to “EWI Indemnitees” for indemnification under Section 8.03(a) of the Stock Purchase Agreement with respect to any representations or warranties of Buyer hereunder or of CLF&P under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement) until the aggregate amount of all such Damages Losses exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket, in the case of any inaccuracy which event Buyer will be required to pay or be liable for all such Losses in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsBasket.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person The aggregate amount of all Losses for which Buyer will be liable pursuant to this Article VII Section 8.03(a) and for which CLF&P will be liable pursuant to Section 8.03(a) of the Stock Purchase Agreement (i) other than the Special Representations (as defined herein and in the Stock Purchase Agreement) will not exceed the Cap and (ii) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Special Representations (as defined herein and in this the Stock Purchase Agreement), will not exceed $17,000,000.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect The determination of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding Losses for purposes of this Article VIII will take into account the amount or availability of insurance proceeds payable with respect thereto pursuant to any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closinginsurance policy.
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Certain Limitations. The Parties’ indemnification obligations under Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Neither Seller nor Buyer shall have any liability for claims monetary Losses arising from Intentional Fraudunder Section 8.02(a) or Section 8.03(a), criminal activity or willful breaches to the extent the aggregate amount of covenants, any Damages Losses related thereto for which the Seller shall or Buyer, as applicable, would otherwise be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under provide indemnification, exceeds an amount equal to Three Hundred Seventy-Five Million Dollars ($375,000,000). The aggregate Liability of Buyer, on the Indemnification Insurance Policy one hand, and Buyer will have no recourse against Seller, on the Seller other hand, for any Losses with respect to any such Damagesmatters set forth in Section 8.02(b) and Section 8.03(b), whether or respectively, shall not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable exceed an amount equal to the Purchase Price.
(b) Neither Seller nor Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no any liability for indemnification monetary Losses under Section 7.2(a)(i8.02(a) or Section 8.03(a) unless and until the aggregate amount of such Damages all monetary Losses under Section 8.02(a) or Section 8.03(a) as applicable, for which Seller or Buyer, as applicable, would otherwise be required to provide indemnification exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to on a cumulative basis an amount equal to Twenty-Five Million Dollars ($25,000,000), at which point Seller or Buyer, as applicable, subject to the Purchase Price actually received by other provisions of this Section 8.04, shall indemnify the Buyer Indemnitees or the Seller pursuant to this Agreement.
(b) Notwithstanding anything to Indemnitees, as applicable, for the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches full amount of covenants, (i) the aggregate liability all such Losses in excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch amount.
(c) Any and all indemnification payments required to be made by Seller pursuant to Section 8.02 shall be paid first from the Escrow Fund to the extent available in accordance with the Escrow Agreement. Seller shall not be required to pay any Buyer Indemnitee for any indemnifiable Losses under Section 8.02 unless and until the Escrow Fund has been exhausted. The parties hereto expressly waive Escrow Agent shall distribute to Seller, subject to the terms and conditions of the Escrow Agreement, immediately following the Survival Period, the then remaining Escrow Amount in excess of the sum of any claim amounts with respect to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in which Buyer is entitled to, but has not yet received, indemnification, pursuant to this Article VIII (plus the event amount of diminution of value to the extent that any interest or income earned on such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderamount), (ii) to any unresolved claims for indemnification as of such date (plus the extent actually recovered by a third party (including a Governmental Bodyamount of any interest or income earned on such amount) from an Indemnified Person, or and (iii) any amounts disputed but not yet resolved pursuant to Section 2.07 or Section 2.08. Once all indemnification claims are resolved between the Parties in accordance with this Article VIII, and all disputes (if any) are resolved between the Parties in accordance Section 2.07 or Section 2.08, as applicable, all remaining amounts in the event of Intentional FraudEscrow Fund, criminal activity or willful breaches of covenantsif any, shall be paid to Seller.
(d) An The amount of any Losses for which indemnification is provided to an Indemnified Person entitled Party under this Article VIII shall be net of any amounts actually recovered by such Indemnified Party under policies of insurance (less any costs and expenses of recovery thereof), with respect to indemnification such Losses. If and to the extent any insurance proceeds are actually received by an Indemnifying Person any Indemnified Party after such Indemnified Party has recovered any Losses pursuant to this Article VII with respect VIII such Indemnified Party shall promptly pay to any claim or group the Indemnifying Party an amount equal to such insurance proceeds to which the Indemnifying Party is entitled pursuant to the first sentence of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementparagraph.
(e) No Buyer Indemnified Person Party shall be entitled to indemnification under this Agreement (i) in respect of any Damages to be compensated more than once for the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such mattersame Loss.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Each Indemnified Party shall use commercially reasonable efforts to or referring mitigate Losses for which indemnification may be claimed by such Indemnified Party under this Agreement to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedextent required by applicable Law.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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