Drafting Indemnity Agreements in Business & Commercial Transactions - 2019

Originally presented on March 22, 2019

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 will provide you with 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

Speakers: Joel R. Buckberg, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN and William J. Kelly, III, Kelly & Walker LLC

NOTE: This program was originally produced as a telephone seminar and is available on demand in streaming audio. This material qualifies for self-study credit only. Pursuant to Regulation 15.04.5, a lawyer may receive up to six hours of self-study credit in a reporting year. Self-study programs do not qualify for ethics or elimination of bias credit.