Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser shall be under no liability to indemnify the Seller Group under 10.3.1 and no claim under Section 10.3.1 of this Agreement shall: (i) be made unless notice thereof shall have been given by or on behalf of Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests; (ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier; (iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with: (A) the use, ownership or operation of the Hospital, or (B) the use, operation or ownership of any of the Assets, prior to the Effective Time, other than as specifically included in the Assumed Obligations; (iv) be made to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Purchaser pursuant to Section 10.2; and (v) be made to the extent such claim seeks Consequential Damages; provided, however, the limitation contained in this Section 10.3.2.(a)(v) shall not apply to the extent of any payments which Seller or any affiliate of Seller is required to make to a third party which are in the nature of Consequential Damages. (b) If Seller is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser hereunder, Seller shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser pays to Seller an amount in respect of a claim, and Seller subsequently recovers from a third party a sum which is referable to that claim, Seller shall forthwith repay to Purchaser so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Indemnification Limitations. (ai) Notwithstanding anything contained herein to the contrary (other than as to claims that constitute Tax Claims as provided in Section 12(c)(iii) and other than as to claims for Fraud as provided in Section 12(c)(iv), Indemnified Persons shall not be entitled to indemnification with respect to claims that are made pursuant to Section 12(b) for any provision claim until and unless the Indemnifiable Damages resulting from such individual claim or series of related claims exceeds $75,000 (as further described in clause (vi) below, the “Claim Threshold”), whereupon the Indemnified Persons shall be entitled to receive all amounts for losses for any claim (or a group of claims relating to the same facts or circumstances, event or transaction) that are in excess of the Claims Threshold subject to the other limitations of this Section 12 (such claims being referred to as “Qualifying Claims”). Except for Tax Claims as provided in Section 12(c)(iii), Indemnified Persons shall be entitled to payment for Qualifying Claims only as follows: (x) the Qualifying Claim shall be paid solely out of the Indemnity Escrow Amount; and (y) as to the balance of the Qualifying Claim that exceeds the remaining balance of the Indemnity Escrow Amount, such amount shall be paid solely through the R&W Insurance Policy. Notwithstanding the foregoing, the Claim Threshold shall not apply to claims to the extent such claims are (x) caused by Fraud, (y) in connection with or caused by any inaccuracies in the Funds Flow Memorandum Indemnity Matters, or (z) relating to a breach of a representation or a warranty set forth in Section 3(n) (Taxes) or relating to a breach of a covenant or an agreement set forth in Section 8 (Covenants Regarding Tax Matters) (each such claim described in clause (z), a “Tax Claim”). Notwithstanding anything to the contrary set forth herein, except for claims that are caused by Fraud (subject to the terms of Section 12(c)(iv)) or are in connection with any inaccuracies in the Funds Flow Memorandum Indemnity Matters, (1) for claims other than Tax Claims, the aggregate Liability of the Sellers under this Section 12 shall not exceed the remaining balance of the Indemnity Escrow Amount and (2) for claims that constitute Tax Claims (subject to the terms of Section 12(c)(iii)), the aggregate Liability of the Sellers for Tax Claims shall not exceed the remaining balance of the Tax Escrow Amount.
(ii) Each Seller agrees to be severally, but not jointly, contractually liable for any amounts owed to the Indemnified Persons with respect to any inaccuracies in the Funds Flow Memorandum Indemnity Matters.
(iii) The Sellers’ obligations with respect to Tax Claims shall be subject to the following:
a. Each Seller agrees to be jointly and severally, contractually liable for any amounts owed to the Indemnified Persons; provided that in no event shall the aggregate Liability of the Sellers with respect to all Tax Claims exceed the sum of the remaining balance of the Tax Escrow Amount..
b. The Indemnified Persons shall have the right to choose in their sole discretion, with respect to each Tax Claim, to recover such claim, in whole or in part, from (1) the remaining balance of the Tax Escrow Amount or (2) the R&W Insurance Policy (if covered by the R&W Insurance Policy).
(iv) The Sellers’ obligations with respect to Fraud shall be subject to the following:
a. Each Seller agrees to be severally, but not jointly, contractually liable for such Seller’s pro rata portion of any amounts awarded to an Indemnified Person by an arbitral panel or court of competent jurisdiction in a final, non-appealable judgment for Fraud committed by such Seller or by the Company.
b. The Liability of each Seller for Fraud in connection with the representations and warranties set forth on Section 4 shall be several and individual obligations of such Seller and no Seller shall be liable to the Indemnified Persons or otherwise responsible for Fraud in connection with the representations and warranties set forth on Section 4 by any other Seller.
c. The Indemnified Persons shall have the right to choose in their sole discretion, with respect to a claim for Indemnifiable Damages for Fraud, to recover such claim, in whole or in part, from (1) the remaining balance of the Indemnity Escrow Amount or (2) the R&W Insurance Policy (if covered by the R&W Insurance Policy).
(v) Indemnifiable Damages in respect of a matter shall be reduced by the amount of (x) any insurance proceeds (other than pursuant to the R&W Insurance Policy) actually received by the Indemnified Person with respect to such matter, net of any costs of collection and any increase in premiums to be paid by the Indemnified Person related to the insurance carrier's payment of such claim; and (y) any amounts realized from indemnification or similar rights against third parties.
(vi) Notwithstanding anything to the contrary contained in this Agreementherein, Purchaser Indemnifiable Damages shall be under no liability to indemnify the Seller Group under 10.3.1 not include consequential, indirect, lost profits, punitive and no claim under Section 10.3.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's ability to defend its rights, mitigate exemplary damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii12(c)(vi) shall not apply limit an Indemnified Party’s right to the extent that coverage recovery under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that this Section 12 for any such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of the Hospital, or
(B) the use, operation or ownership of any of the Assets, prior to the Effective Time, other than as specifically included in the Assumed Obligations;
(iv) be made damages to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Purchaser pursuant to Section 10.2; and
(v) be made to the extent such claim seeks Consequential Damages; provided, however, the limitation contained in this Section 10.3.2.(a)(v) shall not apply to the extent of any payments which Seller or any affiliate of Seller Indemnified Party is required to make pay such damages to a third party in connection with a matter for which are in the nature of Consequential Damagessuch Indemnified Party is otherwise entitled to indemnification under this Section 12.
(bvii) If Seller is entitled to recover any sum For purposes of determining whether one or more items or a specific claim exceeds the Claim Threshold: (x) all claims or demands arising out of the same or related set of circumstances, facts or occurrence (whether or not occurring at the same moment of time) shall be aggregated; and (y) all claims or demands relating to an occurrence that has the same underlying issue or root cause shall be deemed to be aggregated.
(viii) The Liability of each Seller for a breach of such Seller’s covenants shall be several and individual obligations of such Seller and no Seller shall be liable to an Indemnified Person for a breach of any covenant by paymentany other Seller.
(ix) Except in the case of , discount, credit Fraud or otherwise) from any third party in respect of to any matter for which a claim of indemnity could be made against Purchaser hereunderinaccuracies in the Funds Flow Memorandum Indemnity Matters, Seller in no event shall use its reasonable endeavors any Seller’s Liability to recover an Indemnified Person exceed such sum from such third party and any sum recovered will reduce the amount Seller’s pro rata share of the claimCap. If Purchaser pays For the avoidance of doubt, Seller’s Liability to Seller an amount Indemnified Person in the case of Fraud or in respect of a claim, and Seller subsequently recovers from a third party a sum which is referable to that claim, Seller any inaccuracies in the Funds Flow Memorandum Indemnity Matters shall forthwith repay not be limited to Purchaser so much of the amount paid by it as does not exceed the sum recovered recovery from the third party less all reasonable costs, charges and expenses incurred by Seller in obtaining payment in respect of that claim and in recovering that sum from the third partyIndemnity Escrow Amount.
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser the Sellers shall be under no liability to indemnify the Seller Group Purchasers under 10.3.1 Section 12.2.1 and no claim under Section 10.3.1 12.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Seller the Purchasers to Purchaser the Sellers in the manner provided in Section 10.412.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's the Sellers’ ability to defend its their rights, mitigate damages, seek indemnification from a third party or otherwise protect its their interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii12.2.2(a)(ii) shall not apply to deductibles or copayments, any self-insurance program or insurance provided by captive affiliates, or to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of the HospitalFacilities, or
(B) the use, ownership or operation or ownership of any of the Acquired Assets, on and after the Effective Date (without regard to whether such use, ownership or operation is consistent with the Sellers’ policies, procedures and/or practices prior to the Effective Time, Date); other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made under Section 12.2.1(a) to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedules or any Schedule to this Agreement;
(v) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in, or noted in, or taken account of in Net Working Capital;
(vi) be made to the extent such claim relates to an obligation or liability for which Seller has the Purchasers have agreed to indemnify Purchaser the Sellers pursuant to Section 10.2; and12.3;
(vvii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.3.2.(a)(v12.2.2(a)(vii) shall not apply to the extent (A) of any payments which Seller the Purchasers or any affiliate of Seller other indemnified Person is required to make to a third party (other than any third party which is an affiliate of either of the Purchasers) which are in the nature of Consequential Damages;
(viii) be made under Section 12.2.1(a) to the extent that such claim relates to the Purchasers’ ability to collect the Accounts Receivable; provided, however, the limitation contained in this Section 12.2.2(a)(viii) shall not apply to any breach by any of the Sellers of its representation and warranty contained in Section 4.15; and
(ix) accrue under Section 12.2.1(a) to the benefit of the Purchasers unless and only to the extent that (A) the actual liability of the Sellers to the Purchasers in respect of any single claim under Section 12.2.1(a) exceeds Ten Thousand Dollars ($10,000) (the “Relevant Claim Amount”) and (B) the total actual liability of the Sellers to the Purchasers in respect of all Relevant Claims in the aggregate exceeds Fifty Thousand Dollars ($50,000) (the “Aggregate Amount”), in which event the Purchasers or other indemnified Person shall be entitled to seek indemnification under Section 12.2.1(a) for all claims for Damages which exceed the Aggregate Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of the Sellers to the Purchasers and other indemnified Persons for claims brought under Section 12.2.1(a) shall not exceed an amount equal to fifty percent (50%) of the Cash Purchase Price.
(c) If Seller is the Purchasers are entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party (other than an insurance provider or another Person entitled to indemnification by the Sellers hereunder) in respect of any matter for which a claim of indemnity could be made against Purchaser the Sellers hereunder, Seller the Purchasers shall use its their reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser the Sellers pays to Seller the Purchasers an amount in respect of a claim, and Seller the Purchasers subsequently recovers recover from a third party (other than an insurance provider or another Person entitled to indemnification by the Sellers hereunder) a sum which is referable to that claim, Seller the Purchasers shall forthwith repay to Purchaser the Sellers so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller the Purchasers in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vanguard Health Systems Inc)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser shall be under no liability to indemnify the Seller Group under 10.3.1 and no claim under Section 10.3.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalHospitals, or
(B) the use, operation or ownership of any of the Assets, prior to the Effective Time, other than as specifically included in the Assumed Obligations;
(iv) be made to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Purchaser pursuant to Section 10.2; and;
(v) be made to the extent such claim seeks Consequential Damages; provided, however, the limitation contained in this Section 10.3.2.(a)(v10.3.2(a)(v) shall not apply to the extent of any payments which Seller or any affiliate of Seller is required to make to a third party which are in the nature of Consequential Damages; and
(vi) accrue to Seller under Section 10.3.1(a) unless and only to the extent that (A) the actual liability of Purchaser in respect of any single claim under Section 10.3.1
(a) exceeds the Relevant Claim threshold and (B) the total actual liability of Purchaser in respect of all Relevant Claims under Section 10.3.1(a) in the aggregate exceeds the Aggregate Amount, in which event Seller shall be entitled to seek indemnification under Section 10.3.1
(a) for all Relevant Claims only in an amount of Damages which exceed the Aggregate Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Purchaser to Seller under this Agreement, subsequent to Purchaser paying the Cash Purchase Price at Closing, shall not exceed an additional amount equal to the Cash Purchase Price.
(c) If Seller is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser hereunder, Seller shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser pays to Seller an amount in respect of a claim, and Seller subsequently recovers from a third party a sum which is referable to that based on the same claim, Seller shall forthwith repay to Purchaser so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses (including reasonable attorneys fees) incurred by Seller in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Sources: Asset Sale Agreement (Integrated Healthcare Holdings)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser Seller shall be under no liability to indemnify the Seller Group Purchaser under 10.3.1 Section 10.2.1 and no claim under Section 10.3.1 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's Seller’s ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalHospitals, or
(B) the use, ownership or operation or ownership of any of the AssetsAssets or the assets comprising any of the TRH Businesses, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller’s or TRH’s policies, procedures and/or practices prior to the Effective Time, ); other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(v) be made to the extent such claim relates to an obligation or liability for which Seller Purchaser has agreed to indemnify Purchaser Seller pursuant to Section 10.2; and10.3;
(vvi) be made to the extent that such claim would not have arisen but for a voluntary act, omission or transaction carried out by Purchaser, TRH or their affiliates after the Effective Date;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, “Consequential Damages”); provided, however, the limitation contained in this Section 10.3.2.(a)(v10.2.2(a)(vii) shall not apply to the extent of any payments which Seller or any affiliate of Seller Purchaser is required to make to a third party which are in the nature of Consequential Damages; and
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a “Relevant Claim”) and (B) the total actual liability of Seller in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the “Aggregate Amount”), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims in the full amount of Damages provided, however, that the Aggregate Amount shall be inapplicable to any claim by Purchaser for indemnification as a result of a breach by Seller of the provisions of Section 2.6(a).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Seller Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser Seller hereunder, Seller Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser Seller pays to Seller Purchaser an amount in respect of a claim, and Seller Purchaser subsequently recovers from a third party a sum which is referable to that claim, Seller Purchaser shall forthwith repay such amount to Purchaser so much of the amount paid by it as does not exceed the sum recovered from the third party Seller less all reasonable costs, charges and expenses incurred by Seller Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Sources: Asset Sale Agreement (Health Management Associates Inc)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser Seller shall be under no liability to indemnify the Seller Purchaser Group under 10.3.1 Section 10.2.1 and no claim under Section 10.3.1 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair PurchaserSeller's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of lossloss (other than a policy of insurance with an affiliate of Purchaser); provided, however, that this Section 10.3.2(a)(ii10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalHospitals, or
(B) the use, ownership or operation or ownership of any of the Assets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller's policies, procedures and/or practices prior to the Effective Time, ); other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to this Agreement (without giving effect to any Disapproved Schedules), unless Seller's indemnification of the Purchaser Group is based on a provision hereof other than Section 10.2.1(a);
(v) be made if and to the extent that proper provision or reserve was made for the matter giving rise to the claim in Net Working Capital;
(vi) be made to the extent such claim relates to an obligation or liability for which Seller Purchaser has agreed to indemnify Purchaser Seller pursuant to Section 10.2; and10.3;
(vvii) be made to the extent such claim relates to Seller's failure to comply with or the Assets' failure to be in compliance with the Americans with Disabilities Act; provided, however, this Section 10.2.2(a)(vii) shall not apply to the extent that such claim arises as a result of a claim brought by an individual (which shall specifically exclude, without limitation, governmental third parties) who alleges that he or she has suffered damages prior to the Effective Time, including, without limitation, damages arising from personal injury;
(viii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, "Consequential Damages"); provided, however, the limitation contained in this Section 10.3.2.(a)(v10.2.2(a)(viii) shall not apply to the extent of any payments which Seller Purchaser or any affiliate member of Seller the Purchaser Group is required to make to a third party (other than any third party which is a member of the Purchaser Group) which are in the nature of Consequential Damages; and
(ix) accrue to Purchaser or any member of the Purchaser Group under Section 10.2.1(a) unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a "Relevant Claim") and (B) the total actual liability of Seller under Section 10.2.1
(a) in respect of all Relevant Claims in the aggregate exceeds One Million Dollars ($1,000,000) (the "Aggregate Amount"), in which event Purchaser or any member of the Purchaser Group shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims only in an amount of Damages which exceed the Aggregate Amount.
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to the Purchaser Group under this Agreement shall not exceed the Cash Purchase Price (as adjusted pursuant to Section 1.4).
(c) If Seller Purchaser or any member of the Purchaser Group is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party (other than an insurance carrier or an affiliate of Purchaser) in respect of any matter for which a claim of indemnity could be made against Purchaser Seller hereunder, Seller shall Purchaser shall, at its option, either use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim, or assign to Seller the right of Purchaser or the applicable member of the Purchaser Group to pursue such third party. If Purchaser Seller pays to Seller any member of the Purchaser Group an amount in respect of a claim, and Seller such member of the Purchaser Group subsequently recovers from a third party (other than an insurance carrier or an affiliate of Purchaser) a sum which is referable to that claim, Seller Purchaser shall, and shall cause the applicable member of the Purchaser Group to, forthwith repay to Purchaser Seller so much of the amount paid by it Purchaser or the applicable member of the Purchaser Group as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller Purchaser or the applicable member of the Purchaser Group in obtaining payment in respect of that claim and in recovering that sum from the third party.
(d) Upon notice to Seller specifying in reasonable detail the basis therefore, Purchaser shall, during the term of the Indemnity Escrow Agreement, give notice of any claim for indemnity hereunder to Seller and the Escrow Agent pursuant to the Indemnity Escrow Agreement. In accordance with, and subject to, the terms of the Indemnity Escrow Agreement, Purchaser shall, during the term of the Indemnity Escrow Agreement, unless and until all amounts in the escrow have been exhausted, satisfy its indemnity claims under Section 10.2 from any amounts held in escrow pursuant to the Indemnity Escrow Agreement. The Escrow Amount shall not be deemed to be a limit on Seller's obligations under this Section 10.2.
Appears in 1 contract
Indemnification Limitations. Notwithstanding anything contained in this Agreement to the contrary, the liability of the Corporation and the Shareholder shall be subject to the following limitations: (a) Notwithstanding the Corporation and the Shareholder, in the aggregate, shall not be liable for any provision Damages and/or in respect of the Purchase Price Adjustment in an aggregate amount in excess of the Purchase Price (or such lesser amount if not all the Purchase Price is released to the contrary contained Corporation under the Escrow Agreement); (b) on the day immediately following the Anniversary Date and except with respect to Damages relating to Environmental Matters, Taxes and the representations and warranties set forth in this AgreementSections 3.01, Purchaser 3.03, 3.11 and 3.19 hereof, the aggregate liability of the Corporation and the Shareholder in respect of Damages shall be under no liability reduced to indemnify the Seller Group under 10.3.1 and no claim under Section 10.3.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss$400,000; provided, however, that this Section 10.3.2(a)(ii) such reduced liability maximum shall not apply if prior to such date, the extent that coverage under Corporation and/or the applicable policy Shareholder shall have been notified of insurance is denied a claim for indemnity hereunder which potentially exceeds such reduced liability maximum, and such claim shall not have been finally resolved or disposed of as of such date; (c) the Corporation and the Shareholder, in the aggregate, shall not be liable for any Damages (exclusive of the Purchase Price Adjustment) to Purchaser hereunder until the aggregate amount of all such Damages exceeds $25,000, it being understood and agreed by the applicable insurance carrier;
(iii) be made to Corporation and the extent Shareholder that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of the Hospital, or
(B) the use, operation or ownership of any of the Assets, prior to the Effective Time, other than as specifically included in the Assumed Obligations;
(iv) be made to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Purchaser pursuant to Section 10.2; and
(v) be made to the extent such claim seeks Consequential Damages; provided, however, the limitation contained in this Section 10.3.2.(a)(v) shall not apply to the extent of any payments which Seller or any affiliate of Seller is required to make to a third party which are in the nature of Consequential Damages.
(b) If Seller is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser hereunder, Seller shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce when the amount of such Damages exceeds $25,000, in the claim. If Purchaser pays aggregate, indemnification may be sought against the Corporation and the Shareholder in full for all such Damages from the first dollar thereof; and (d) the Corporation and Shareholder shall not be liable for Damages with respect to Seller an amount Environmental Matters which relate to real estate not owned by the Corporation or Shareholder unless it is claimed that such Environmental Matter was caused, in respect of a claimwhole or in part, and Seller subsequently recovers from a third party a sum which is referable to that claim, Seller shall forthwith repay to Purchaser so much by the actions or inactions of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller in obtaining payment in respect of that claim and in recovering that sum from the third partyCorporation or Shareholder.
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser Seller shall be under no liability to indemnify the Seller Group Purchaser under 10.3.1 Section 10.2.1 and no claim under Section 10.3.1 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair PurchaserSeller's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the Hospital, Hospitals or
(B) the use, ownership or operation or ownership of any of the Assets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller's policies, procedures and/or practices prior to the Effective Time, ); other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made under Section 10.2.1(a) to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to this Agreement;
(v) Intentionally Omitted;
(vi) be made to the extent such claim relates to an obligation Seller's failure to comply with or liability for which Seller the Assets' failure to be in compliance with (A) the Americans with Disabilities Act or (B) the Alfred E. Alquist Hospital Faci▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇fety Act of 1983, as amended by the California Hospitals Facilities Seismic Safety Act (codified at California Health and Safety Code ss.129675 through ss.130070); provided, however, this Section 10.2.2(a)(vi) shall not apply to the extent that such claim arises as a result of a claim brought by a non-governmental third party who has agreed suffered personal injury prior to indemnify Purchaser pursuant the Effective Time provided that this 10.2.2(a)(vi) shall not be construed to limit Purchaser's rights to indemnification under Section 10.2; and10.2.1
(va) for a breach by Seller of any representation or warranty under this Agreement;
(vii) be made to the extent such claim seeks Damages which are consequential in nature (as opposed to direct), including, without limitation, loss of future revenue or income or loss of business reputation or opportunity (collectively, "Consequential Damages"); provided, however, the limitation contained in this Section 10.3.2.(a)(v10.2.2(a)(vii) shall not apply to the extent (A) of any payments which Seller or any affiliate of Seller Purchaser is required to make to a third party (other than any third party which is an affiliate of, investor of or lender to Purchaser) which are in the nature of Consequential DamagesDamages and (B) such third party's claim is unrelated to the failure to obtain any or all of the Contract and Lease Consents; and
(viii) accrue to Purchaser under Section 10.2.1(a) unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1
(a) exceeds Five Thousand Dollars ($5,000) (a "Relevant Claim") and (B) the total actual liability of Seller in respect of all Relevant Claims under Section 10.2.1
(a) in the aggregate exceeds Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Aggregate Amount"), in which event Purchaser shall be entitled to seek indemnification under Section 10.2.1(a) for all Relevant Claims only in an amount of Damages which exceed the Aggregate Amount; provided, however, that the exception set forth in this Section 10.2.2(viii) shall not be construed to limit the indemnification available to Purchaser under Sections 10.2.1(b), (c), (d), (e), (f), (g), (h) and (i).
(b) Notwithstanding any provision to the contrary contained in this Agreement, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Cash Purchase Price.
(c) If Seller Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser Seller hereunder, Seller Purchaser shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser Seller pays to Seller Purchaser an amount in respect of a claim, and Seller Purchaser subsequently recovers from a third party a sum which is referable to that based on the same claim, Seller Purchaser shall forthwith repay to Purchaser Seller so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses (including reasonable attorneys fees) incurred by Seller Purchaser in obtaining payment in respect of that claim and in recovering that sum from the third party.
Appears in 1 contract
Sources: Asset Sale Agreement (Integrated Healthcare Holdings)
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser Seller shall be under no liability to indemnify the Seller Purchaser Group under 10.3.1 Section 10.2.1 and no claim under Section 10.3.1 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair PurchaserSeller's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii10.2.2(a)(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by the applicable insurance carrier;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of the Hospital, or
(B) the use, ownership or operation or ownership of any of the Assets, on and after the Effective Time (without regard to whether such use, ownership or operation is consistent with Seller's policies, procedures and/or practices prior to the Effective Time, ); other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made to the extent that such claim relates (or the basis therefor) is set forth in the Disclosure Schedule or any other schedule to an obligation or liability for which Seller has agreed this Agreement (without giving effect to indemnify any Disapproved Schedules), unless Seller's indemnification of the Purchaser pursuant to Group is based on a provision hereof other than Section 10.2; and10.2.1(a);
(v) be made if and to the extent such that proper provision or reserve was made for the matter giving rise to the claim seeks Consequential Damages; provided, however, the limitation contained in this Section 10.3.2.(a)(vNet Working Capital;
(vi) shall not apply be made to the extent that Purchaser had knowledge of any payments which Seller or any affiliate of Seller is required to make to a third party which are in the nature of Consequential Damages.
(b) If Seller is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser hereunder, Seller shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser pays to Seller an amount in respect breach of a claim, representation and Seller subsequently recovers from a third party a sum which is referable to that claim, Seller shall forthwith repay to Purchaser so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred warranty by Seller in obtaining payment in respect of that claim and in recovering that sum from the third party.(as contemplated by
Appears in 1 contract
Indemnification Limitations. (a) Notwithstanding any provision to the contrary contained in this Agreement, Purchaser Seller shall be under no liability to indemnify the Seller Group Purchaser under 10.3.1 Section 10.2.1 and no claim under Section 10.3.1 10.2.1 of this Agreement shall:
(i) be made unless notice thereof shall have been given by or on behalf of Purchaser to Seller to Purchaser in the manner provided in Section 10.4, unless failure to provide such notice in a timely manner does not materially impair Purchaser's ability to defend its rights, mitigate damages, seek indemnification from a third party or otherwise protect its interests;
(ii) be made to the extent that any loss may be recovered under a policy of insurance in force on the date of loss; provided, however, that this Section 10.3.2(a)(ii10.2.2(ii) shall not apply to the extent that coverage under the applicable policy of insurance is denied by or otherwise cannot be recovered from the applicable insurance carriercarrier after the use of commercially reasonable efforts to effect such recovery;
(iii) be made to the extent that such claim relates to a liability of Seller arising out of or relating to any act, omission, event or occurrence connected with:
(A) the use, ownership or operation of any of the HospitalHospitals, or
(B) the use, ownership or operation or ownership of any of the Assets, prior to after the Effective Time, Closing Date; other than as specifically included in the Assumed ObligationsExcluded Liabilities;
(iv) be made to the extent that such claim (or the basis therefor) is set forth in the Disclosure Schedule, any Exhibit or Schedule to this Agreement;
(v) be made to the extent that Purchaser had knowledge of (A) any breach of a representation and warranty by Seller (as contemplated by Section 3.9) or (B) other indemnifiable event, on or prior to the Closing Date, and did not notify Seller of such knowledge as contemplated by this Agreement;
(vi) be made to the extent such claim relates to an obligation or liability for which Seller Purchaser has agreed to indemnify Purchaser Seller pursuant to Section 10.2; and10.3;
(vvii) be made to the extent that such claim seeks Consequential Damageswould not have arisen but for a voluntary act, omission or transaction carried out by Purchaser or its affiliates after the Effective Date; providedand
(viii) accrue to Purchaser unless and only to the extent that (A) the actual liability of Seller in respect of any single claim under Section 10.2.1 exceeds Five Thousand Dollars ($5,000) (a "Relevant Claim") and (B) the total actual liability of Seller in respect of all Relevant Claims with respect to any particular Hospital in the aggregate exceeds one-half percent (0.5%) of the portion of the Purchase Price attributable to any such particular Hospital pursuant to Schedule 11.1(b) (the "Aggregate Amount"), howeverin which event Purchaser shall be entitled to seek indemnification under Section 10.2.1 for all Relevant Claims with respect to such particular Hospital, including those Relevant Claims comprising the Aggregate Amount. Notwithstanding the foregoing, the limitation contained set forth in this Section 10.3.2.(a)(vsubsection 10.2.2(a)(viii) shall not apply to the extent of any payments which Seller or any affiliate of Seller is required claims for indemnification pursuant to make to a third party (A) Section 10.2.1(iii) which are based upon liabilities described in Section 1.12(a), (e), (f) or (h), and (B) Section 10.2.1(i) which are based upon a breach of the nature of Consequential Damagesrepresentations and warranties made in Section 2.13.
(b) Notwithstanding any other provision of this Agreement to the contrary, the maximum aggregate liability of Seller to Purchaser under this Agreement shall not exceed the Purchase Price.
(c) If Seller Purchaser is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Purchaser hereunder, Seller shall use its reasonable endeavors to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Purchaser pays to Seller an amount in respect of a claim, and Seller subsequently recovers from a third party a sum which is referable to that claim, Seller shall forthwith repay to Purchaser so much of the amount paid by it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller in obtaining payment in respect of that claim and in recovering that sum from the third party.any
Appears in 1 contract