Friday, March 22, 2019, 1:00-2:00pm
Indemnity agreements are central to the risk allocation and limitation of liability system built into most transactional arrangements.
The indemnitor agrees to indemnify the indemnitee for breaches of certain reps, warranties and covenants or on the occurrence of defined events. The scope of liability in these agreements is very carefully defined, often including actual costs but excluding consequential damages or any damages arising from third-party claims. All of the pieces of the indemnity – scope, measure of damages, exclusions and disclaimers of implied or equitable indemnity – must be very carefully considered, negotiated and drafted, or the value of the underlying transaction and the indemnity itself will be lost.
This program provides a practical guide to drafting the key provisions of indemnity agreements in transactional agreements.
- Scope of indemnity – indemnity v. hold harmless, damages v. liabilities, direct v. third-party claims
- Types of losses subject to indemnity – breaches of reps and warranties, covenants, losses, specific circumstances
- Determining recoverable damages and costs, including attorneys’ fees
- Implied or equitable indemnity – and use of disclaimers to limit liability
- Difference between the duty to defend v. indemnification
- Exclusions, limitations, carve-outs from indemnity
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