Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement. (b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud. (c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable. (d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds. (e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7. (f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made. (g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes. (i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (XTI Aerospace, Inc.), Membership Interest Purchase Agreement (XTI Aerospace, Inc.)
Other Limitations. 6.1 The Parent Seller and each other member of the Sellers’ Group’s liability in relation to a Claim for breach of a Warranty (other than a Tax Warranty Claim or a Fundamental Warranty Claim) shall be reduced or extinguished to the extent that to:
(a) Notwithstanding anything an allowance, provision or reserve has been made for any amount related to the contrary contained subject matter of such Claim in this Agreementthe Accounts, the Parties Completion Statement or in any of the Transaction Documents (including any amount by which the valuation of any asset has been reduced in the Accounts or the Completion Statement to take account of the subject matter of such Claim) or to the extent that payment or discharge of the relevant matter has been taken into account therein; or
(b) any amount has been recovered under any other claim in respect of the same matter, fact or circumstance.
6.2 The Parent Seller and each other member of the Sellers’ Group will not be liable in respect of any Claim for breach of a Warranty (other than a Tax Warranty Claim) to the extent that such Claim is attributable to, arises as a result of, or is increased by (in which case such liability shall be entitled to recover reduced by the amount so increased but shall not otherwise be extinguished):
(a) any amounts voluntary act or transaction carried out after the date of this Deed by or at the request of or with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge consent of the particular misrepresentation or breach Buyers, any member of warranty, (ii) any investigation or examination conducted with respect tothe Buyers’ Group, or any knowledge acquired (in each case its directors, employees, agents or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreementsuccessors in title.
(b) Notwithstanding anything expressly required to be done or omitted to be done pursuant to this Deed; or
(c) the winding-up of any Group Member or any winding-up or cessation after Completion of any trade or business carried on by any Group Member or effecting a major change after Completion in the nature or conduct of any trade or business carried on by any Group Member.
6.3 The Parent Seller and each other member of the Sellers’ Group shall not be liable in respect of any Claim for breach of a Warranty to the contrary set forth herein, extent that the Buyers were aware on or before the date of this Deed of the matters giving rise to the Claim (and for the purposes of determining (i) whether there has occurred (A) a breach this paragraph 6.3, the awareness of the Buyers shall mean the actual acknowledge of ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and such persons shall be deemed to have knowledge of the Disclosed Matters and the contents of any representation or warranty contained in this Agreement or (B) a breach of due diligence reports provided by the advisors to the Buyers and/or any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Buyers’ Group or their respective advisors on their behalf).
6.4 Nothing in this Deed will in any way restrict or limit the general obligation at law of the Buyers and the Group to mitigate any loss or damage which it may suffer in consequence of any breach by the Parent Seller Group’s of this Deed or any fact, matter or circumstance giving rise to a Claim (other than a Tax Deed Claim).
6.5 If any Claim (other than a Tax Deed Claim) will arise by reason of some liability for those Losses under this Article 7 will be reduced or eliminated which at the time that the Claim is notified to the extent Parent Seller is contingent only or otherwise not capable of any indemnificationbeing quantified, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts Parent Seller and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the each other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing Sellers’ Group will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have be under any obligation to indemnify make any Indemnified Party under payment to the Buyers in respect of such Claim until the contingent liability becomes actual and is due and payable. This paragraph 6.5 of this Article 7 for any Losses that are actually recovered by Schedule 4 (Limitations on Liability) is without prejudice to the Indemnified Party from any third party (including any amounts recovered under insurance policies) net obligation of the costs Buyers to notify the Parent Seller of the Claim and expenses to issue and serve proceedings in respect thereof in accordance with paragraphs 2.2(c), 2.2(d) and 3.1 of such recovery, including any increases this Schedule 4 (Limitations on Liability) provided always that the time period pursuant to which the Buyers must issue and serve proceedings in premiums, and respect thereof shall not begin until the Indemnified Party shall reimburse the Indemnifying Party in the event Claim has ceased to be contingent or becomes capable of a recovery by such Indemnified Party subsequent to an indemnification payment being madequantified.
(g) Notwithstanding anything herein 6.6 The Buyers acknowledge and agree that the only Warranties given in relation to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement Taxation or any related claims, liabilities or other matters (“Tax Matters”) are those set out in paragraph 21 (Taxation) of the transactions contemplated herebySchedule 3 (Warranties) and no other warranty is given in relation to Tax Matters.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Esco Technologies Inc)
Other Limitations. For the avoidance of doubt and notwithstanding any other provision of this Agreement:
(aA) Notwithstanding anything Subject to Section 8.2(c)(iii)(C), (1) the contrary contained in Parent Indemnified Parties shall have no recourse against any Company Indemnifying Parties pursuant to this Agreement or any exhibit, schedule, certificate (including the Company Disclosure Letter) or agreement delivered by the Company pursuant to this Agreement, for any breach of any representation, warranty or covenant set forth in this Agreement or in any exhibit, schedule, certificate (including the Company Disclosure Letter) or agreement delivered by the Company pursuant to this Agreement, or for any other obligation to indemnify pursuant to Section 8.2(a), other than the amounts in the Indemnnification Escrow Fund, except with respect to a breach of the representations or warranties set forth in Section 3.4 or Section 3.5, (2) in no event shall any Company Indemnifying Party be liable to the Parent Indemnified Parties for an aggregate amount in excess of such Company Indemnifying Party's Pro Rata Portion of the Total Merger Consideration, and (3) in no event shall any Company Indemnifying Party be entitled liable to recover any amounts the Parent Indemnified Parties with respect to any indemnification claim made pursuant to this Article 7 for Damages for an amount in excess of such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge Company Indemnifying Party's Pro Rata Portion of the particular misrepresentation or amount that the Parent Indemnified Parties are entitled to receive with respect to such claim.
(B) Subject to Section 8.2(c)(iii)(C), this Section 8.2 shall be the sole remedy of the Parent Indemnified Parties and the Company Indemnified Parties after the Effective Time for any breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warrantywarranty or covenant set forth in this Agreement or in any exhibit, covenantschedule, agreementcertificate (including the Company Disclosure Letter) or agreement delivered by the Company, undertaking Parent or obligation made by or on behalf of the Parties heretoMerger Sub, (iii) the waiver of any condition based on the accuracy of any representation or warrantyas applicable, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of pursuant to this Agreement.
(bC) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything provision in this Agreement to the contrary, no Person shall be deemed to have waived any rights, claims, causes of action or remedies arising from fraud, intentional misrepresentation, active concealment or willful breach hereof against a Person committing such fraud, intentional misrepresentation or active concealment or willfully taking actions to cause a breach hereof; provided that no Company Indemnifying Party shall have any obligation liability in excess of its Pro Rata Portion of the Total Merger Consideration with respect to indemnify the fraud, intentional misrepresentation or active concealment or willful taking of actions to cause a breach hereof of any Indemnified other Person; provided, further, that nothing in this Agreement shall limit the liability of a Company Indemnifying Party for such Company Indemnifying Party's fraud, intentional misrepresentation or active concealment or willful taking of actions to cause a breach hereof.
(D) The amount of any Damages for which indemnification is provided under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) 8 shall be calculated net of the costs and expenses of such recovery(A) any accrual, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party reserves or provisions reflected in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein Interim Balance Sheet that related to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation nature of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated herebyclaim from which such Damages arose and (B) insurance benefits.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 1 contract
Sources: Merger Agreement (Allergan Inc)
Other Limitations. (a) Notwithstanding anything to the contrary contained in The amount of any Losses for which indemnification is provided under this Agreement, the Parties Article 11 shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding net of: (i) any accruals or reserves on the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, Adjusted Closing Net Working Capital; (ii) any investigation or examination conducted with respect toforeign, or any knowledge acquired (or capable of being acquired) about federal, state and local income tax benefits inuring to the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf Indemnified Party as a result of the Parties hereto, state of facts which entitled the Indemnified Party to recover from the Indemnifying Party; (iii) any amounts recovered by the waiver of Indemnified Party pursuant to any condition based on the accuracy of any representation indemnification by or warranty, or on the performance of or compliance indemnification agreement with any covenantthird party, agreement, undertaking less any costs incurred or obligation or payable by such Indemnified Party in recovering such amount; and (iv) any amounts recovered or recoverable by the making of this AgreementIndemnified Party pursuant to any insurance policy.
(b) Notwithstanding anything to the contrary set forth hereinOther than for fraud, in no event shall any party be liable for the purposes loss of determining (i) whether there has occurred (A) a breach profits or incidental, special, punitive or consequential damages for any reason whatsoever or for any multiple of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is damages based on materiality, including the words “material,” “Material Adverse Effect,” “in purchase price of the business or any material respect” multiple of earnings or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for FraudEBITDA.
(c) No The Indemnifying Party shall be liable more than once for not have any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer indemnification obligations with respect to those circumstances. Furtherany breach of any of the representations, warranties, or covenants of the Indemnifying Party contained in the event any amount has been reserved in this Agreement if at or before the Closing Statement with certain facts and circumstancesDate, and a Loss subsequently occurs with respect to the Indemnified Party had actual knowledge of such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverablebreach.
(d) Each Party with insurance coverage that may cover Losses Indemnification pursuant to the provisions of this Article 11 shall use commercially reasonable efforts to pursue a claim under be the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate sole and (ii) the foregoing shall not preclude any member exclusive remedy of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received parties relating to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or subject matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth addressed in this Article 7.
(f) Notwithstanding anything 11. Without limiting the generality of the preceding sentence, no legal action sounding in this Agreement contribution, tort or strict liability may be maintained by any party against the other party with respect to the contraryAgreement, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected toexcept as expressly contemplated by, or doesotherwise consistent with, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made11.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Saint James CO)
Other Limitations. (a) Notwithstanding anything herein to the contrary contained and except for any claims in respect of any fraud or intentional misrepresentation by the Indemnifying Party in connection with the transactions contemplated under this Agreement, the Parties Indemnifying Party shall not be entitled to recover any amounts with respect liable hereunder to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated matter (a) to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Indemnified Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over recovers an amount necessary to avoid double recovery arising in respect of such matter, or from the circumstances out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reducedsuch matter arises, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including under any amounts recovered under insurance policiespolicy) net of and only to the costs and expenses extent of such recoveryrecovered amount, including (b) to the extent such matter has arisen as a result of an act, omission, transaction or arrangement carried out at the written request or with the written approval of such Indemnified Party or its Representatives, (c) that is a contingent liability, unless and until such liability is actually due and payable, provided that in respect of such contingent liability, if such Indemnified Party has duly given a notice of claim prior to the expiration of any increases in premiumsapplicable survival periods under Section 7.1(a), and the then such Indemnified Party shall reimburse be deemed to have preserved its right and entitlement to be indemnified for such claim by the Indemnifying Party if and when the contingent liability becomes actually due and payable, (d) the liabilities arising out of which have been specifically provided for or reserved against in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein Financial Statements and only to the contrary, no breach extent of any representation, warranty, covenantthe amount so provided for or reserved against, or agreement contained herein will give rise (e) that arises out of an action taken pursuant to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except Transaction Documents to the extent agreed such action was carried out in accordance with such Transaction Document(s). Any Loss shall be determined without duplication of recovery by reason of the state of facts giving rise to in writing by such Non-Recourse PartyLoss, and no Indemnified Party shall be entitled to recover for any Loss based on substantially the same set of facts more than once.
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Other Limitations. (ai) Notwithstanding anything to the contrary contained in this Agreement, the Parties In no event shall any Purchaser Indemnified Party be entitled to recover or make a claim against the Indemnity Escrow Amount or any Seller, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, for any amounts in respect of punitive, consequential, special or exemplary damages, except (A) in each case to the extent such are actually paid to an unrelated third party as a result of a final non-appealable judgment against such Purchaser Indemnified Party or (B) in the case of consequential damages, to the extent such damages are reasonably foreseeable.
(ii) Except for Losses resulting from a breach of the representations or warranties contained in Sections 3.08(e), 3.08(i), 3.08(j), 3.08(k), 3.08(n), 3.08(q) and 3.08(r), the Purchaser Indemnified Parties shall have no rights to recover from the Indemnity Escrow Amount for Losses consisting of or relating to Taxes with respect to any indemnification claim made Post-Closing Tax Period as a result of any breach of the representations and warranties set forth in Section 3.08.
(iii) No Purchaser Indemnified Party shall have the right to recover under Section 8.01 with respect to any Loss or alleged Loss to the extent the matter forming the basis for such Loss or alleged Loss shall have been taken into account in the determination of Net Working Capital, Indebtedness, Cash on Hand or Seller Transaction Expenses (it being understood, without limiting the foregoing, that the Sellers shall not be liable pursuant to this Article 7 for such Losses notwithstanding (i) VIII to the fact that such Party extent an item was substantially resolved by the Dispute Resolution Firm in connection with the determination of Net Working Capital, Indebtedness, Cash on Hand or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or Seller Transaction Expenses).
(iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, covenant or agreement contained herein will shall give rise to any right on the part of any party heretothe Purchaser or the Merger Sub 1, after the consummation of the transactions contemplated herebyClosing, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
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Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such no Parent Indemnified Party or any of their respective Affiliates had knowledge shall make an indemnification claim hereunder for Damages for which written notice of the particular misrepresentation or breach of warrantyunderlying claim was not duly delivered to the Securityholder Representative within the applicable time limitation set forth in Section 6.4(a) provided, however, that the failure to deliver such written notice within the applicable time limitation shall not release the Company Indemnifying Parties from their indemnification obligations except to the extent, and only to the extent, the Company Indemnifying Parties are prejudiced by such failure, (ii) any investigation or examination conducted with respect tothe Parent Indemnified Parties shall only be entitled to indemnification for Damages that are ultimately quantifiable, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, and (iii) in no event shall the waiver of Company Indemnifying Parties have any condition liability to a Parent Indemnified Party for any punitive or special Damages, or Damages measured based on the accuracy diminution in value or reputation, of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an such Parent Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Furtherexcept, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions case of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
clause (d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possibleiii), to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees foregoing Damages are awarded to use its commercially reasonable efforts to mitigate a third party against any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Parent Indemnified Party in circumstances in which such Parent Indemnified Party is entitled to indemnification hereunder). After the Closing, the rights of the Parent Indemnified Parties under this Article 7 for any Losses that are actually recovered by VI shall be the Indemnified Party from any third party (including any amounts recovered under insurance policies) net sole and exclusive remedies of the costs and expenses of such recovery, including any increases in premiums, and the Parent Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent Parties with respect to an indemnification payment being made.
(g) claims under this Agreement. Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, covenant or agreement contained herein will of the Company in this Agreement shall give rise to any right on the part of any party heretoParent Indemnified Party, after the consummation of the transactions contemplated herebyClosing, to rescind this Agreement or any of the transactions contemplated herebyTransactions.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
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Other Limitations. (ai) Notwithstanding anything to the contrary contained in this Agreement, the Parties No Indemnified Party shall be entitled to recover any amounts with receive an indemnification payment in respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement contingent liability unless and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if until such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 becomes due and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigationpayable. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Buyer Indemnified Party shall reimburse be indemnified or reimbursed for any (A) Damages arising or resulting from any change in Applicable Law or GAAP from and after the Indemnifying Party Closing Date; (B) Damages in respect of matters included in the event calculation of Company Cash, Company Debt, Seller Transaction Expenses or Closing Net Working Capital, in each case as finally determined pursuant to Section 2.5; (C) Damages arising out of any breach of the representations or warranties contained in ARTICLE III to the extent a recovery corresponding reserve for such Damages has been established on the Latest Balance Sheet or (D) Damages to the extent that such Damages are attributable to: (1) any voluntary act, omission, transaction, or arrangement carried out at the request of, or with the written consent of, Buyer or one of its Affiliates (the “Buyer Group”) before, on or after the Closing Date or under the terms of this Agreement; and (2) any voluntary act, omission, transaction, or arrangement carried out by any member of the Buyer Group on or after the Closing Date which is outside the ordinary course of business of such member of the Buyer Group, and/or which such member of the Buyer Group knew, or ought reasonably to have known (after reasonable inquiry), would, or was reasonably likely to, result in a claim. If Seller is conducting any defense against a Third Party Claim for which a Buyer Indemnified Party subsequent has sought indemnification pursuant to an indemnification payment being madeSection 9.2(a), the fees and expenses incurred by Seller in connection therewith, including legal costs and expenses, shall be included in Damages for purposes of determining the amount subject to the cap pursuant to Section 9.4(a).
(gii) Notwithstanding In addition to the foregoing, notwithstanding anything herein in this Agreement to the contrary, no Buyer Indemnified Party shall be indemnified or reimbursed for any Damages claimed in respect of a breach of any representationrepresentation or warranty in Section 3.16 for any environmental investigation, warrantymonitoring, covenantclean-up, containment, restoration, removal or other corrective or response action (collectively, “Response Action”) unless such Response Action: (A) is affirmatively required under any Environmental Law to address an Environmental Condition existing as of the Closing Date which is discovered during the ordinary course of the operation of the Company’s and its Subsidiaries’ business (and not during or as a result of a voluntary investigation regardless of whether such investigation is undertaken in association with financing or a property transfer or sale); (B) is performed in a cost-effective manner; (C) is designed and scoped in such a manner as to attain compliance with the minimum remedial standards available under Environmental Law taking into account the use of the Real Property as it was used by the Company as of the Closing Date and employing, where applicable, risk-based remedial standards and institutional controls; and (D) does not arise from a voluntary notice not required by Environmental Laws about the Environmental Condition by the Company, Buyer or any agent or representative of Buyer to a Governmental Authority or other Person. Buyer and the Company shall provide reasonable notice of any planned Response Action to the Seller, and, subject to the limitations herein, the Seller shall either, at the Seller’s option, perform the Response Action or cause the Response Action to be performed by an environmental consultant acceptable to Buyer, approval of which shall not be withheld or delayed unreasonably, or agreement contained herein will give rise shall authorize Buyer or the Company to perform such Response Action. Subject to the limitations herein, if the Seller refuses to perform, cause to be performed, or authorize the performance of any right Response Action, or if an emergency exists that requires initiation of Response Action before a reasonable time for Seller’s response has elapsed, Buyer and the Company may, at their option, perform or cause to be performed such Response Action. Buyer and the Company shall provide the Seller with reasonable access to the relevant property or facility for purposes of completing such Response Action and shall reasonably cooperate with the Seller in connection therewith; provided, that Seller shall make reasonable efforts to minimize any adverse impacts on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated herebyCompany’s business.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
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Other Limitations. (a) Notwithstanding anything Payments by Seller or Buyer pursuant to Section 6.1, Section 7.1 or Section 7.2, as applicable, in respect of any Damage shall be limited to the contrary contained 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 an Indemnified Person in this Agreementrespect of any such claim, as well as any Tax benefit actually realized by an Indemnified Person as a result of incurring such Damage, in the Parties year the applicable Damage is incurred or in the immediately following five (5) taxable years. Each Indemnified Person shall be entitled use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any amounts with respect Damages prior to any seeking indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of under this Agreement.
(b) Notwithstanding anything In no event (absent fraud) shall Seller or Buyer, as applicable, be liable to an Indemnified Person for any punitive, incidental, consequential, special or indirect Damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the contrary set forth hereinBreach or alleged Breach of this Agreement, for the purposes or diminution of determining (i) whether there has occurred (A) a breach of value or any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is Damages based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes type of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraudmultiple.
(c) No Party Each Indemnified Person shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstancestake, and a Loss subsequently occurs with respect shall cause its Affiliates to such facts and circumstancestake, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially all reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts steps to mitigate any Losses Damage upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto; provided.
(d) Buyer's right to indemnification, that payment of Damages or other remedy based upon Breach of any of the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything representations, warranties, covenants or obligations of Seller contained in this Agreement will not be affected by any investigation conducted by Buyer (including diligence review of materials posted by Seller in the electronic data room prior to the contrarydate hereof), no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein each case except to the extent agreed Buyer had Knowledge of such inaccuracy or Breach at or prior to in writing by such Non-Recourse Partythe Closing.
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Other Limitations. (a) Notwithstanding anything to the contrary contained in this AgreementAgreement or otherwise, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding parties expressly intend and agrees as follows:
(i) The amount of any Damages incurred by a Purchaser Indemnified Party shall be reduced by any amount actually recovered by a Purchaser Indemnified Party with respect thereto under any insurance coverage (net any costs and expenses, including the fact present value of any insurance premium increases); provided, however, that Purchaser shall not be obligated to seek any such Party proceeds, benefits or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, recoveries.
(ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, The indemnification provisions provided for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 exclusive remedy for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on in this Agreement; provided, however, that nothing in this Agreement shall limit the part rights or remedies of any party heretoIndemnified Party in connection with (i) any fraud in connection with, after or willful breach of, this Agreement or the consummation Related Agreements, (ii) any Related Agreement or (iii) seeking any equitable remedies.
(iii) Nothing in this Article 7 shall limit the liability of the transactions contemplated herebyany Party hereto for any breach of any representation, to rescind warranty, covenant or agreement contained in this Agreement or any of Related Agreement if the transactions contemplated herebyhereby do not close.
(hiv) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments Notwithstanding anything to the Purchase Price contrary set forth in this Agreement, the parties hereto agree and acknowledge that any Indemnified Party may bring a Claim for income Tax purposesindemnification for any Damages under this Article 7 notwithstanding the fact that such Indemnified Party had Knowledge of the breach, event or circumstance giving rise to such Damages prior to the Closing or waived any condition to the Closing related thereto.
(iv) Notwithstanding Each Indemnified Party shall use commercially reasonable efforts to mitigate any provision Damages which are the subject of Claims hereunder.
(vi) Except in the case of fraud, until the Escrow Fund is exhausted or released in full, any payment to a Purchaser Indemnified Party, in respect of claims under Section 7.1(a)(i) for any misrepresentation or breach by Seller of the representations and warranties set forth in Section 5.1 of this Agreement or otherwiseAgreement, shall be paid from the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse PartyEscrow Fund.
Appears in 1 contract
Sources: Asset Purchase Agreement (Schiff Nutrition International, Inc.)
Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will Company shall not obligate any such indemnified party to commence litigation. Notwithstanding anything in be liable under this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by matter:
(i) to the extent such Indemnified Party actually recovers an amount in respect of such matter, or from the circumstances out of which such matter arises, from any third party (including under any amounts recovered under insurance policiespolicy) net of and only to the costs and expenses extent of such recoveryrecovered amount;
(ii) to the extent has arisen as a result of an act, including omission, transaction or arrangement carried out at the written request or with the written approval of such Indemnified Party or its directors, officers, employees, agents and other persons acting on its behalf (collectively, the “Representatives”);
(iii) that is a contingent liability, unless and until such liability is actually due and payable, provided that in respect of such contingent liability, if such Indemnified Party has become aware of such claim and has duly provided a Claim Notice in accordance with Clause 8.5 (Procedure) prior to the expiration of any increases in premiumsapplicable Survival Periods, and the then such Indemnified Party shall reimburse be deemed to have preserved its right and entitlement to be indemnified for such claim by the Indemnifying Party Company if and when the contingent liability becomes actually due and payable;
(iv) the liabilities arising out of which have been specifically provided for or reserved against in the event Financial Statements and only to the extent of a recovery the amount so provided for or reserved against; or
(v) that arises out of an action required to be taken under this Agreement.
(b) No Indemnified Party shall be entitled to recover for any Indemnifiable Loss based on substantially the same set of facts more than once.
(c) To the extent required by the Laws of the State of New York and available to an Indemnified Party, such Indemnified Party subsequent shall procure that all reasonable steps are taken to an indemnification payment being madeavoid or mitigate any Indemnifiable Losses which it may suffer in consequence of any breach of or inaccuracy in, any representation or warranty given by the Company in this Agreement; provided that, such Indemnified Party shall not be required to mitigate any Indemnifiable Losses in connection with or attributable to any breach of, or inaccuracy in, any Tax Warranty.
(gd) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation Each of the transactions contemplated hereby, Investors acknowledges and agrees that the only representations and warranties given by the Company under Clause 4.1 in relation to rescind this Agreement Tax or any of related claims, liabilities or other matters (“Tax Matters”) are set out in Clause 4.13 (Tax Matters) and no other representations and warranties are given in relation to Tax Matters by the transactions contemplated herebyCompany.
(he) Unless otherwise required by applicable LawThe Indemnified Party shall not be entitled to claim for, all indemnification payments, except from the R&W Insurance PolicyCompany under this Clause 8 (Indemnification), will be treated as adjustments to the Purchase Price any punitive, speculative or special loss or for income Tax purposesany indirect or consequential loss.
(if) Notwithstanding any provision For the avoidance of this Agreement or otherwisedoubt, the Parties limitations set forth in this Clause 8.7 shall only apply to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse claims made by any Indemnified Party of a party to this Agreement will have any liability relating to this Agreement or any against the Company in respect of the transactions matters set forth herein except to in Clause 8.1 (Indemnification by the extent agreed to in writing by such Non-Recourse PartyCompany).
Appears in 1 contract
Sources: Share Subscription Agreement (Alibaba Group Holding LTD)
Other Limitations. (a) Notwithstanding anything For all purposes of this Article 7, Losses incurred or suffered by an Indemnified Person shall be net of any amounts of any insurance proceeds actually received by the Indemnified Person (other than with respect to any self-insurance program of the contrary contained Indemnified Person) or any indemnification or contribution payments under any Contract that are actually received by the Indemnified Person in this Agreementconnection with such Losses, after taking into account any deductible, costs and expenses incurred in collecting such insurance proceeds or other payments or any increase in insurance premiums as a result of such claim.
(b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Parties Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment.
(c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an such Indemnified Party related theretoPerson more than once, the applicable regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, agreement obligation or covenant or otherwise. In addition, any Liability for indemnification hereunder shall be read determined without duplication of recovery by reason of the state of facts giving effect rise to any qualification that is based on materialitysuch Liability, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes a breach of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstancesone representation, even if such circumstances give rise to liability under multiple sections warranty, covenant or subsections of this Agreement. By way of exampleagreement, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverableas applicable.
(d) Notwithstanding anything to the contrary in this Agreement, for purposes of determining under this Article 7 the amount of any Losses resulting from the breach of any representation or warranty (but not as the existence of such breach), any materiality, Material Adverse Effect or other similar qualification with respect to materiality contained in or otherwise applicable to such representation or warranty shall be disregarded.
(e) Each Party Person entitled to indemnification hereunder or otherwise to reimbursement for Losses in connection with insurance coverage that may cover Losses the transactions contemplated under this Agreement shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in mitigate all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would could reasonably be expected to, or does, to give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered indemnifiable or recoverable hereunder or in connection herewith.
(f) For the purpose of this Article 7, in each case where a decision or agreement to be made by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse Person or the Indemnifying Party Person is, collectively, to be made by Sellers, then in the event of a recovery by each such case all references to such Indemnified Party subsequent Person or Indemnifying Person, as the case may be, in this Article 7 (except for provisions relating to an indemnification payment being made.
(gobligation to make or a right to receive any payments) Notwithstanding anything herein shall be deemed to refer to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and Sellers’ Representative acting on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement such Indemnified Person or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse PartyIndemnifying Person, as applicable.
Appears in 1 contract
Other Limitations. (a) Notwithstanding anything Other than in the case of Fraud, the remedies provided in this Article VII, subject to the contrary contained in limitations set forth herein, will be the sole and exclusive remedies of the Buyer Indemnified Persons and the Seller Indemnified Persons with respect to any and all claims resulting from, relating to or arising out of this Agreement, the Parties shall other Transaction Documents, or the Transactions (except for any other remedies expressly set forth in Section 1.3, Section 4.17, and Section 8.9 and subject to any additional limitations or remedies as may otherwise be entitled to recover any amounts set forth in the Services Agreement, in each case, with respect to matters resulting from or arising out of the Services Agreement, as applicable). Subject to the foregoing, no Party will have any indemnification claim made pursuant to other rights or remedies in connection with any breach of this Article 7 for such Losses notwithstanding (i) the fact that such Party Agreement or any of their respective Affiliates had knowledge other claim arising out of the particular misrepresentation negotiation, entry into, or breach consummation of warrantythe Transactions for the recovery of Losses resulting from, (ii) any investigation or examination conducted with respect relating to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making arising out of this Agreement.
(b) Notwithstanding anything to For the contrary set forth herein, for the purposes purpose of determining (i) determining whether there an inaccuracy exists or a breach has occurred with respect to a representation or warranty contained in Article II or Article III (Aother than with respect to Section 2.7(a)) a and (ii) calculating the amount of Losses with respect to any inaccuracy in or breach of any representation or warranty contained in this Agreement or (B) a breach of Agreement, any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “, or similar qualification in any material respect” or other similar qualifications; provided that, the foregoing such representations and warranties will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Frauddisregarded.
(c) No Each Indemnified Party shall be liable more than once for use, and to cause their respective Affiliates to use, Commercially Reasonable Efforts to mitigate any Losses arising out that form the basis of any particular circumstances, even if claim for indemnification by such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses Indemnified Party under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverableVII.
(d) Each In no event will any Indemnifying Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have be responsible or liable for any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations Loss or other amounts under this Article 7VII representing exemplary damages or punitive damages, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed such Losses are paid or payable with respect to in writing by such Nona Third-Recourse PartyParty Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Other Limitations. (a) Notwithstanding anything A liability, which is contingent, shall not constitute a Loss recoverable under this Agreement unless and until such contingent liability becomes an actual liability and is due and payable. However, this Section 9.5.3(a) shall not operate to exclude a Claim made in respect of a contingent liability within the applicable time limits, and setting out the particulars as specified, in Section 9.5.2.
(b) To the extent there is any actual saving by or quantifiable actual financial benefit to the contrary contained Buyer or any Group Company arising from a Loss, no Seller shall be liable for the part of such Loss that is covered by such actual saving or benefit. This includes if any such Loss is a Tax deductible item, or relates to an untaxed reserve, in which case the Claim that the Buyer may make shall be reduced by the tax savings actually made.
(c) If the Buyer or any of the Group Companies has a right to compensation or recovery from a third party (whether by payment, discount, credit, relief or otherwise) relating to a Loss, the Buyer shall use its best efforts to seek compensation or recovery for the Loss from such third party before steps are taken to enforce a Claim against any of the Sellers. If such compensation or recovery is received prior to payment by any of the Sellers with respect to the relevant Claim, such payment shall be reduced by a corresponding amount. If such compensation or recovery is received after payment by the relevant Seller(s) with respect to the relevant Claim, it shall promptly be forwarded or refunded to the relevant Seller(s).
(d) The Buyer shall not be entitled to make a Claim to the extent that:
(i) with regards to breach of Warranties, except for breach of Fundamental Warranties, the fact, matter, circumstance or event giving rise to the Claim was Fairly Disclosed in the Disclosure Material, or was otherwise known or ought to have been known by the Buyer’s Group or any of its Representatives;
(ii) with respect to breach of Warranties, except for breach of Fundamental Warranties, the fact, matter, circumstance or event giving rise to the Claim was reported in the Bring Down of Disclosures;
(iii) a specific provision or allowance for the matter giving rise to the Loss has been made in the Accounts or the Firstan Accounts or the same is otherwise accounted for or reflected in the Accounts or the Firstan Accounts;
(iv) a Loss occurs as a result of the passing of, or change in, any legislation, regulation or administrative practice of any governmental or other regulatory body not in force at the Signing Date, or which takes effect retrospectively;
(v) it relates to a Loss which is recoverable (in full or in part) under an insurance policy or would have been recoverable had the insurance coverage for the Group Companies, which existed at the Closing Date, been maintained;
(vi) the matter, event or circumstance giving rise to the Claim has been made good or has otherwise been compensated for without cost or expense to the Buyer or any of its Affiliates;
(vii) the Claim would not have occurred but for an act, omission or transaction of the Buyer or any of its Affiliates (including, without limitation, the Group Companies from Closing); or
(i) the Loss has been deducted from the Share Price as Leakage in accordance with this Agreement.
(e) For the avoidance of doubt, the Parties Buyer shall not be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party or amount from any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in Sellers under this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member in respect of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the same Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 1 contract
Sources: Share Purchase Agreement (Graphic Packaging International, LLC)
Other Limitations. (a) Notwithstanding anything to the contrary contained in Solely for purposes of calculating Damages under this AgreementArticle 11 (but not for purposes of determining whether or not a Breach of a representation or warranty exists), the Parties any Breach of a representation or warranty or covenant shall be entitled to recover any amounts with respect determined without regard to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) the fact that such Party material, Material Adverse Effect or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreementsimilar qualifier.
(b) Notwithstanding anything Except with respect to the contrary set forth herein, for the purposes of determining any claim with respect to (i) whether there has occurred a fraudulent, willful or intentional misrepresentation or omission, (Aii) Sections 11.2(d), (e) or (f), or (iii) Breach of a breach Fundamental Representation (as to which a claim shall survive for a period of 30 days after the applicable statute of limitations), Liability for Breach of any representation or warranty contained of the representations and warranties made in this Agreement will survive the Closing for a period of eighteen (18) months and thereafter neither party hereto may bring any claim, suit or (B) a breach cause of action against the other party for Breach of any agreement or covenant contained in of the representations and warranties under this Agreement and (ii) Agreement. To the amount of extent that any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” covenants or other similar qualifications; provided thatagreements of Seller or Buyer are performable after the Closing, such covenants or other agreements will survive for the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraudperiods specified.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses All indemnification payments under this Article 7, a member of 11 shall be paid by the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent Indemnifying Person net of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery amounts recovered by the Buyer with respect Indemnified Party (i) under applicable insurance policies after taking into account all deductibles paid in connection therewith or (ii) from any other Person alleged to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverableresponsible therefor.
(d) Each Notwithstanding any contrary provision in this Agreement, in no event shall any Indemnifying Party with insurance coverage be liable to any Indemnified Party for any Damages other than those that may cover Losses shall use commercially reasonable efforts to pursue a claim under directly and naturally arise from or relate to, and are the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate probable and (ii) the foregoing shall not preclude any member reasonably foreseeable result of the Seller Group’s obligation to pay such Losses. IfBreach or alleged Breach of this Agreement (except, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reducedin each case, to the extent not taken into account when Losses were calculated, actually payable by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related an Indemnified Party to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnificationa Third Person, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7excluding speculative damages).
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Bob Evans Farms Inc)
Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding :
(i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained nothing in this Agreement will limit the liability of the Company or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once Parent for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections willful or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no intentional breach of any representation, warrantywarranty or covenant set forth in this Agreement, covenant, any Related Agreements or agreement contained herein will give rise to in any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement certificates or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties other instruments executed and delivered pursuant to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse if the Merger is not consummated;
(ii) nothing herein shall prevent the Indemnified Parties from pursuing any remedies against any Indemnifying Party of a party to this Agreement will have for committing any liability relating fraud with respect to this Agreement or any certificates or other instruments executed and delivered by such Indemnifying Party pursuant to this Agreement or against any Indemnifying Party with actual advance (on or before the Closing) knowledge of the transactions commission of such fraud;
(iii) any Indemnified Party may bring a claim for indemnification for any Loss under this Article VIII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto;
(iv) if an Indemnified Party’s claim under this Article VIII may be brought under different sections of Section 8.2(a), then such Indemnified Party will have the right to bring such claim under any applicable section it chooses in accordance with this Article VIII;
(v) nothing in this Agreement will limit the rights of any party hereto to apply for equitable remedies to enforce the other party or parties’ obligations hereunder; and
(vi) nothing in this Agreement will limit the right of any Indemnified Party to pursue remedies under: (A) the Confidentiality Agreement, (B) the 280G Waivers, (C) the Key Employee Offer Letters, or (D) (1) the Joinder and Waiver Agreements, and (2) the Letters of Transmittal (the agreements covered in clauses “(A)” through “(D)” are referred to herein as the “Excluded Agreements”) against the parties thereto, provided, however, that with respect to the Excluded Agreements covered by clauses (D) the caps and limitations set forth herein except to the extent agreed to in writing by such Non-Recourse PartySection 8.3(a) shall apply.
Appears in 1 contract
Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding :
(i) the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained nothing in this Agreement shall limit the liability of the Company or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraud.
(c) No Party shall be liable more than once Parent for any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections willful or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no intentional breach of any representation, warrantywarranty or covenant set forth in this Agreement, covenant, any Related Agreements or agreement contained herein will give rise in any certificates or other instruments required to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties delivered pursuant to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse if the First Step Merger is not consummated;
(ii) (A) any Indemnifying Party of a party to this Agreement will have committing, or having actual knowledge of, any liability relating fraud or intentional misrepresentation with respect to this Agreement or the transactions contemplated hereby shall indemnify, and hold the Indemnified Parties harmless for, any Losses paid, suffered, incurred or sustained by the Indemnified Parties a result of such fraud or intentional misrepresentation; and (B) none of the transactions set forth herein except Indemnified Party’s equitable or legal claims arising out of fraud or intentional misrepresentation shall be limited or waived by this Article VIII or any other provision in this Agreement with respect to any Person committing such fraud or intentional misrepresentation or any Person who has actual knowledge of such fraud or intentional misrepresentation;
(iii) any Indemnified Party may bring a claim for indemnification for any Loss under this Article VIII notwithstanding the fact that such Indemnified Party had Knowledge of the breach, event or circumstance giving rise to such Loss prior to the extent agreed Closing or waived any condition to the Closing related thereto;
(iv) if an Indemnified Party’s claim under this Article VIII may be brought under different sections of Section 8.2(a), then such Indemnified Party shall have the right to bring such claim under any applicable section it chooses in writing by such Non-Recourse Partyaccordance with this Article VIII;
(v) nothing in this Agreement shall limit the rights of any party hereto to apply for equitable remedies to enforce the other party or parties’ obligations hereunder; and
(vi) nothing in this Agreement shall limit the right of any Indemnified Party to pursue remedies under any Related Agreement against the parties thereto.
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)
Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, (i) no Indemnified Party shall make an indemnification claim hereunder for Damages for which written notice of the Parties underlying claim was not duly delivered to the Indemnifying Party within the applicable time limitation set forth in Section 8.5(a), , (ii) Damages arising from any breach of a representation or warranty shall be entitled calculated without giving effect to recover any amounts limitation as to “materiality” or “Material Adverse Effect” or words of like meaning set forth therein, except with respect to the representations and warranties of the Company set forth in Section 3.7(b) and clause (a) of Section 3.8), (iii) no Seller Indemnifying Party will be liable for any indemnification claim made Damages pursuant to this Article 7 for Section 8.1(a)(ii) in respect of a breach of a covenant or agreement unless the Company (with respect to the Pre-Closing period), such Losses notwithstanding (i) the fact that such Seller Indemnifying Party or any of their respective Affiliates had knowledge or Representatives has committed such breach, (iv) no Seller Indemnifying Party will be liable for any Damages pursuant to this Agreement arising from, in respect of or relating to (A) any state or local sales or use Taxes of the particular misrepresentation Company or its Subsidiaries or (B) the breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreement.
(b) Notwithstanding anything to the contrary agreement set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement with respect to state or local sales or use Taxes of the Company or its Subsidiaries, and (Bv) a no Seller Indemnifying Party will be liable for any fraud or willful breach of any agreement or covenant contained in under this Agreement and unless the Company (ii) with respect to the amount Pre-Closing Period), such Seller Indemnifying Party or any of any Loss suffered by an Indemnified Party related theretotheir Affiliates or Representatives has committed such fraud or willful breach. Notwithstanding anything herein to the contrary, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply except (A) for purposes the right to specifically enforce the provisions of determining the standard that must be met to create an obligation to include items this Agreement as provided in a list set forth in the Seller Disclosure Schedules or Section 11.7, (B) for purposes payment of a claim for Fraud.
Taxes as provided in Section 2.13 and Section 9.1(a), and (cC) No Party with respect to fraud or willful breach, the rights of the Indemnified Parties under this Article VIII shall be liable more than once for any Losses arising out the sole and exclusive remedies of any particular circumstances, even if such circumstances give rise the Indemnified Parties with respect to liability claims under multiple sections or subsections this Agreement after the execution of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnification, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. Further, in the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstancesnone of Parent, thenMerger Sub, subject to the other provisions of this Article 7Company, solely the amount of the Loss, if any, that exceeds the amount reserved Securityholder Representative or accrued on the Closing Statement with respect such facts and circumstances shall be recoverable.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party any Company Securityholder shall have any duty to litigate and (ii) the foregoing shall not preclude other rights or remedies in connection with any member breach of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives Agreement or any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery other liability arising out of the particular facts negotiation, entry into or consummation of the transactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and circumstances for which the insurance proceeds or other sources of recovery were received warranties set forth in this Agreement are contractual in nature only and subject to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely sole and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects exclusive remedies set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigationVIII. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, covenant or agreement contained herein will of the parties in this Agreement shall give rise to any right on the part of any party heretoIndemnified Party, after the consummation of the transactions contemplated herebyClosing, to rescind this Agreement or any of the transactions contemplated hereby.
Transactions. In quantifying the amount of any Damages of the Indemnified Party under this Article VIII, there will be subtracted the amount of any (h1) Unless otherwise insurance proceeds (net of Taxes actually incurred and net of any increased premiums, deductibles or other costs actually incurred relating to the receipt of such proceeds and attributable to any such Damages), other than proceeds received through self‑insurance or insurance provided by Affiliates of such Indemnified Party, actually received by the Indemnified Party with respect to such Damages; provided, however, with respect to any Litigation Losses owed by the Indemnifying Party pursuant to Section 8.1(b), any such insurance proceeds will accrue fully to the benefit of the Indemnifying Party such that such insurance proceeds will reduce in full on a dollar-for-dollar basis any amounts owed by the Indemnifying Party pursuant to Section 8.1(b), and the Indemnifying Party shall be entitled to enforce any rights (including by instituting an Action) of the Indemnified Party to recover any such insurance proceeds with respect to (a) matters relating to or arising out of the Class Action Litigation and (b) other matters for which the Indemnifying Party is required to indemnify the Indemnified Party hereunder, in each case, from insurance carriers and policies of the Company in existence prior to the Closing, provided that in the event Parent submits a claim for insurance from any such insurance carrier which is denied, (X) Parent shall be entitled to recover any amounts it is entitled to be indemnified for pursuant to this Article VIII from the applicable Escrow Amount and (Y) the Indemnifying Party may enforce any rights it may have under such insurance policies, (2) any Tax benefit actually realized by applicable Lawthe Indemnified Party that arises from the incurrence or payment of any such Damages (taking into account any Tax cost actually incurred by the Indemnified Party that arises from the receipt or accrual of any indemnity payment), and (3) third‑party payments actually received by the Indemnified Party with respect to such Damages (net of Taxes actually incurred). Each Indemnified Party shall take, and cause its Affiliates to take, all indemnification paymentsreasonable steps to mitigate Damages, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed it is reasonably feasible to do so, upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. In computing the amount of Tax benefit or Tax cost referred to in writing clause (2) above, (x) the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit, and shall take into account any available Tax attributes (e.g., net operating loss or credit carryforwards), before recognizing any item arising out of the incurrence or payment of any Damages or the accrual or receipt of any indemnity payment hereunder, and (y) the Indemnified Party shall be deemed to have actually realized a Tax benefit or Tax cost to the extent that, and at such time as, the amount of Taxes payable by such Non-Recourse Indemnified Party is reduced below or increased above, as the case may be, the amount of Taxes that such Indemnified Party would be required to pay but for the incurrence or payment of such Damages or the accrual or receipt of the indemnity payment, as the case may be. In the event that the Indemnifying Parties reimburse the Indemnified Party for any Damages prior to the occurrence of any events contemplated by clauses (1), (2) or (3) above, the Indemnified Party will remit to the Indemnifying Party any such amounts that the Indemnified Party subsequently receives or realizes with respect to such Damages. Upon the payment in full of any claim hereunder, the Indemnifying Party will be subrogated to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim. The Indemnified Party shall cooperate with the Indemnifying Party, at the Indemnifying Party’s sole expense, in the assertion by the Indemnifying Party of any such claim against such other Persons.
Appears in 1 contract
Other Limitations. (a) Notwithstanding anything to the contrary contained in A liability, which is contingent, shall not constitute a Loss recoverable under this Agreement, unless and until such contingent liability becomes an actual liability and is due and payable. However, this Section 10.6.4(a) shall not operate to exclude a Claim made in respect of a contingent liability within the Parties shall be entitled to recover any amounts with respect to any indemnification claim made pursuant to this Article 7 for such Losses notwithstanding (i) time limits and setting out the fact that such Party or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warranty, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Parties hereto, (iii) the waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreementparticulars as specified in Section 10.6.2.
(b) Notwithstanding anything To the extent there are any corresponding savings by or net quantifiable financial benefits to Buyer or any Group Company arising from a Loss, Sellers shall not be liable for the portion of the Loss that is covered by such saving or benefit. For example, without limitation, if any Loss is a tax deductible item that results in current cash tax savings, any relevant Claim made by Buyer shall be reduced by an amount equivalent to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) a breach of any representation or warranty contained in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount of any Loss suffered by an Indemnified Party related thereto, the applicable representation, warranty, agreement or covenant shall be read without giving effect to any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for Fraudcash tax savings.
(c) No Party Buyer shall not be liable more than once for entitled to make any Losses arising out of any particular circumstances, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of example, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated Claim to the extent that:
(i) in case of a breach of Warranties (other than Fundamental Warranties), the matter, event or circumstance giving rise to the Claim was Fairly Disclosed in the Disclosure Material);
(ii) the Claim would not have occurred but for any matter or thing done or omitted to be done pursuant to and in compliance with this Agreement or otherwise at the written request or with the written approval of Buyer;
(iii) the same is otherwise actually accounted for and reflected in the Accounts;
(iv) the matter, event or circumstance giving rise to the Claim has actually been made good or has otherwise been actually compensated for without cost or expense to Buyer or any other member of Buyer’s Group;
(v) the Claim relates to a Loss resulting from the passing or amendment of or a change in the official interpretation or application of, any Law or treaty or any administrative practice of any indemnificationgovernmental or other regulatory body not in force at the Closing Date, payment or reimbursement under Article 3 to avoid which takes effect retrospectively; or
(vi) the Claim would not have occurred but for an act, omission or transaction of Buyer or any Person affiliated with, or deriving title from, Buyer (including, without limitation, the Group Companies from Closing), except where the action, omission or transaction constitutes, in all material respects, a double recovery continuation of a practice adopted by the Buyer with respect to those circumstances. Further, in Group Companies or the event any amount has been reserved in the Closing Statement with certain facts and circumstances, and a Loss subsequently occurs with respect to such facts and circumstances, then, subject Sellers prior to the other provisions of this Article 7, solely the amount of the Loss, if any, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverableClosing.
(d) Each Party with insurance coverage that may cover Losses If a Loss relates to a partly owned Group Company, a Seller shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member only be liable for such portion of the Seller Group’s obligation Loss that corresponds to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out ownership of the particular facts and circumstances for which the insurance proceeds or other sources capital of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceedsGroup Company.
(e) The Parties intend for this Article 7 to supersede For the avoidance of doubt, any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent Loss resulting from a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Partyshall be compensable only once.
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Other Limitations. (a) Notwithstanding anything to the contrary contained in this Agreement, the Parties shall be entitled deemed not to recover have suffered or incurred any amounts with respect to any indemnification claim made Losses pursuant to this Article 7 for Section 9.2 or Section 9.3 arising from any item or matter to the extent such Losses notwithstanding item or matter was included in (ior otherwise the calculation thereof was addressed by) the fact that such Party final determination of Cash and Cash Equivalents, Company Indebtedness, Transaction Expenses, Net Working Capital or any of their respective Affiliates had knowledge of the particular misrepresentation or breach of warrantyClosing Cash Payment in accordance with Section 2.6, (ii) any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about as it is the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf intent of the Parties hereto, (iii) that the waiver of any condition based on procedures set forth in Section 2.7 shall provide the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement, undertaking or obligation or (iv) the making of this Agreementsole and exclusive remedies for such claims.
(b) Notwithstanding anything Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to the contrary set forth herein, for the purposes of determining (i) whether there has occurred (A) such liability constituting a breach of more than one representation, warranty or covenant, as applicable. For the avoidance of doubt, any representation claim with respect to any set of facts, events or warranty contained circumstances made under any one or more provisions of Section 9.2 or Section 9.3 in this Agreement or (B) a breach of any agreement or covenant contained in this Agreement and (ii) the amount respect of any Loss suffered by an Indemnified Party related theretoshall not be double-counted and once indemnified, the applicable representation, warranty, agreement or covenant shall not be read without giving effect to indemnifiable a second time under any qualification that is based on materiality, including the words “material,” “Material Adverse Effect,” “in other provision of nor counted more than once toward any material respect” or other similar qualifications; provided that, the foregoing will not apply (A) for purposes of determining the standard that must be met to create an obligation to include items in a list set forth in the Seller Disclosure Schedules or (B) for purposes of a claim for FraudDeductible.
(c) No Party shall be liable more than once for any Losses arising out of any particular circumstancesNOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, even if such circumstances give rise to liability under multiple sections or subsections of this Agreement. By way of exampleNO PARTY SHALL BE ENTITLED TO RECOVER FROM ANY OTHER PARTY FOR ANY LOSSES THAT CONSTITUTE PUNITIVE, if particular circumstances give rise to liability under Article 3 and those circumstances would also give rise to liability for Losses under this Article 7EXEMPLARY, a member of the Seller Group’s liability for those Losses under this Article 7 will be reduced or eliminated to the extent of any indemnificationSPECIAL, payment or reimbursement under Article 3 to avoid a double recovery by the Buyer with respect to those circumstances. FurtherINDIRECT, in the event any amount has been reserved in the Closing Statement with certain facts and circumstancesINCIDENTAL, and a Loss subsequently occurs with respect to such facts and circumstancesCONSEQUENTIAL, thenREMOTE OR SPECULATIVE DAMAGES OR LOST PROFITS, subject to the other provisions of this Article 7EXCEPT, solely the amount of the LossWITH RESPECT TO ANY OF THE FOREGOING CATEGORIES OF DAMAGES, if anyIF SUCH DAMAGES ARE PAYABLE TO A THIRD PERSON WITH RESPECT TO A THIRD PARTY CLAIM AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, that exceeds the amount reserved or accrued on the Closing Statement with respect such facts and circumstances shall be recoverableIN WHICH CASE ANY SUCH DAMAGES SHALL BE CONSIDERED PART OF LOSSES AND BE COVERED BY THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE IX, AS MAY BE APPLICABLE.
(d) Each Party with insurance coverage that may cover Losses shall use commercially reasonable efforts to pursue a claim under the relevant insurance policy; provided, that (i) no Party shall have any duty to litigate and (ii) the foregoing shall not preclude any member of the Seller Group’s obligation to pay such Losses. If, following satisfaction of a Party’s payment obligations under this Article 7, the Party that received payment under this Article 7 actually receives any insurance proceeds or otherwise, such Party will promptly pay over an amount necessary to avoid double recovery arising out of the particular facts and circumstances for which the insurance proceeds or other sources of recovery were received to the Party that made payment. All insurance proceeds required to be paid over will be reduced, to the extent not taken into account when Losses were calculated, by any out-of-pocket costs or expenses, including any increases in premiums that are solely and directly related to such Losses, incurred in connection with obtaining such insurance proceeds.
(e) The Parties intend for this Article 7 to supersede any Law that may otherwise be applicable specifically to contracts of indemnity or matters of indemnification, and this Article 7 is intended to represent a contrary intent, in all manners possible, to the extent that manifestation of a contrary intent is necessary to modify the terms of any Law that might otherwise be applicable concerning the subjects set forth in this Article 7.
(f) Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees to use its commercially reasonable efforts to mitigate any Losses upon becoming aware of any event or circumstance that would reasonably expected to, or does, give rise thereto; provided, that the forgoing will not obligate any such indemnified party to commence litigation. Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Party under this Article 7 for any Losses that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies) net of the costs and expenses of such recovery, including any increases in premiums, and the Indemnified Party shall reimburse the Indemnifying Party in the event of a recovery by such Indemnified Party subsequent to an indemnification payment being made.
(g) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant, or agreement contained herein will give rise to any right on the part of any party hereto, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.
(h) Unless otherwise required by applicable Law, all indemnification payments, except from the R&W Insurance Policy, will be treated as adjustments to the Purchase Price for income Tax purposes.
(i) Notwithstanding any provision of this Agreement or otherwise, the Parties to this Agreement agree on their own behalf and on behalf of their respective Subsidiaries and Affiliates that no Non-Recourse Party of a party to this Agreement will have any liability relating to this Agreement or any of the transactions set forth herein except to the extent agreed to in writing by such Non-Recourse Party.
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