This excerpt taken from the DYN 8-K filed May 31, 2007.
Section 7.1 Indemnity Obligations. Subject to the limitations and conditions set forth in this Article 7:
(a) Seller shall indemnify, defend and hold harmless Buyer and its Affiliates and their respective directors, officers, employees and agents (collectively with Buyer and its Affiliates, the Buyer Indemnitees) from and against any and all claims, demands or suits by any Person, and all losses, liabilities, damages, obligations, payments, costs and expenses (including reasonable legal fees and expenses and including costs and expenses incurred in connection with investigations and settlement proceedings) (each, an Indemnifiable Loss), as incurred, asserted against or suffered by any Buyer Indemnitee relating to, resulting from or arising out of (i) any breach by Seller of any representation, warranty, covenant or agreement of Seller contained in this Agreement or (ii) any Assigned Contract with respect to any period prior to Closing.
(b) Buyer will indemnify, defend and hold harmless Seller and its Affiliates and their respective directors, officers, trustees, employees and agents (the Seller Indemnitees) from and against any and all Indemnifiable Losses, as incurred, asserted against or suffered by any Seller Indemnitee relating to, resulting from or arising out of (i) any breach by Buyer of any representation, warranty, covenant or agreement of Buyer contained in this Agreement, (ii) any Assigned Contract with respect to any period from and after Closing; or (iii) any Transfer Tax obligations imposed on Seller, the Company or their respective Affiliates for which Buyer is responsible under the terms of this Agreement.
(c) Any Person entitled to receive indemnification under this Agreement having a claim under these indemnification provisions shall make a good faith effort to recover any Indemnifiable Loss from insurers of such Indemnitee under applicable insurance policies so as to reduce the amount of any Indemnifiable Loss hereunder. The amount of any Indemnifiable Loss shall be reduced to the extent that the relevant Buyer Indemnitee or Seller Indemnitee (each, an Indemnitee) receives any insurance proceeds with respect to an Indemnifiable Loss. If the amount of any Indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, will promptly be repaid by the Indemnitee to the Party required to provide indemnification hereunder (the Indemnifying Party) with respect to such Indemnifiable Loss.
(d) To the fullest extent permitted by law, no Party nor any Buyer Indemnitee or any Seller Indemnitee shall be liable to any other Party or any other Buyer Indemnitee or Seller Indemnitee for any claims, demands or suits for consequential, incidental, special, exemplary, punitive, indirect or multiple damages connected with or resulting from any breach of this Agreement (other than breach of this Article 7), or any actions undertaken in connection with or related hereto or thereto, including any such damages based upon breach of contract, tort (including negligence and misrepresentation), breach of warranty, strict liability, statute, operation of law or any other theory of recovery.
(e) The rights and remedies of Seller and its Affiliates and Buyer under Section 5.6(f) and this Article 7 are, solely as between Seller and its Affiliates and Buyer, exclusive and in lieu of any and all other rights and remedies that Seller and its Affiliates and Buyer may have under this Agreement or otherwise for monetary relief with respect to (i) any breach of, or failure to perform, any covenant or agreement set forth in this Agreement by Seller, the Company or their respective Affiliates or Buyer, as applicable, and (ii) any breach of any representation or warranty by Seller or the Company or Buyer. Each Party agrees that the previous sentence shall not limit or otherwise affect any nonmonetary right or remedy that a Party may have under this Agreement or otherwise limit or affect any Partys right to seek equitable relief, including the remedy of specific performance. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 3, BUYER ACKNOWLEDGES AND AGREES THAT NONE OF SELLER, THE COMPANY, AND THEIR RESPECTIVE AFFILIATES, ARE MAKING ANY REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS, OR IMPLIED, CONCERNING THE OPERATION OF THE BUSINESS (INCLUDING ANY RELATING TO LIABILITIES, OPERATIONS OF THE GENERATING FACILITIES, CONDITION, VALUE
OR QUALITY OF THE BUSINESS OR THEIR PROSPECTS (FINANCIAL OR OTHERWISE), RISKS OR OTHER INCIDENTS OF THE BUSINESS) OR WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. BUYER ACKNOWLEDGES AND AGREES THAT EACH OF SELLER AND THE COMPANY SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE ASSETS OF THE COMPANY OR ANY PART THEREOF, AS TO THE WORKMANSHIP THEREOF, THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS, THE APPLICABILITY OF ANY GOVERNMENTAL REQUIREMENTS, INCLUDING BUT NOT LIMITED TO ANY FORMER, CURRENT OR FUTURE ENVIRONMENTAL LAWS, OR WHETHER THE COMPANY POSSESSES SUFFICIENT REAL OR PERSONAL PROPERTY TO OPERATE THE BUSINESS, EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 3. BUYER ACKNOWLEDGES AND AGREES THAT EACH OF SELLER AND THE COMPANY FURTHER SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE ABSENCE OF HAZARDOUS SUBSTANCES OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER FORMER, CURRENT OR FUTURE ENVIRONMENTAL LAWS, WITH RESPECT TO THE OPERATION OF THE BUSINESS, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY BUYER, UNLESS EXPRESSLY PROVIDED IN SECTION 3.9.
(f) Buyer and Seller agree that, notwithstanding Section 7.1(e), each Party shall retain, subject to the other provisions of this Agreement, including Sections 7.1(d) and 9.3, all remedies at law or in equity with respect to (i) fraud or willful or intentional breaches of this Agreement and (ii) gross negligence or willful or wanton acts or omissions to act of any Indemnitee (or any contractor or subcontractor thereof) after the Closing Date.