Common use of Certain Limitations on Indemnification for Third-Party Claims and Direct Claims Clause in Contracts

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification shall be made by the Seller pursuant to Section 8.2(a) or Section 8.2(c) (i) unless such individual Buyer Indemnified Loss or series of related Buyer Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Buyer Indemnified Losses exceeding the Threshold Amount that would otherwise be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Seller to the extent that the Buyer Indemnified Losses exceed the Deductible. The maximum amount that the Seller shall be required to pay pursuant to Section 8.2(a) and Section 8.2(c) in respect of all Buyer Indemnified Losses shall not exceed the Damages Cap, after which point the Seller shall have no obligation to indemnify the Buyer Indemnitees from and against further Buyer Indemnified Losses pursuant to Section 8.2(a) and Section 8.2(c). The Seller’s obligation to indemnify the Buyer under Section 8.2(b), Section 8.2(d), Section 8.2(e) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (b) No indemnification shall be made by the Buyer pursuant to Section 8.3(a) (i) unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding the Threshold Amount that would be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Buyer to the extent that the Seller Indemnified Losses exceed the Deductible. The maximum amount that the Buyer shall be required to pay pursuant to Section 8.3(a) in respect of all Seller Indemnified Losses shall not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against further Seller Indemnified Losses. The Buyer’s obligations to pay the Seller the Purchase Price and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (c) The limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental Representation. (d) The amount of any Buyer Indemnified Losses shall be reduced by (i) any amount actually received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor and (ii) the amount of any Tax Benefit actually realized by the Buyer Indemnitee relating thereto. Any Indemnified Party having a claim under Article VIII shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will be made promptly to such Indemnifying Party. For purposes of this Section 8.7(d), a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any such Tax Benefit, the Buyer Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Buyer Indemnified Losses.

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification The Sellers shall not be made by the Seller pursuant to Section 8.2(a) or Section 8.2(c) (i) unless such individual Buyer Indemnified Loss or series liable in respect of related any Buyer Indemnified Losses exceeds the Threshold Amount, and (iiunder Section 6.02(g) unless and until the aggregate amount of Buyer Indemnified Losses exceeding under Section 6.02(g) exceeds (i) for the Threshold Amount that would otherwise be subject to indemnification exceeds first year after Closing, one percent (1%) of the DeductiblePurchase Price (the “Basket”) and (ii) thereafter, and, in such event, indemnification shall only be made by the Seller to the extent that the then remaining Basket is greater than one-half percent (0.5%) of the Purchase Price, the Basket will be reduced to one-half percent (0.5%) of the Purchase Price in the aggregate, and the Sellers will be required to pay the amount of Buyer Indemnified Losses exceed in excess of the Deductible. Basket. (b) The maximum amount that the Seller shall Sellers will be required to pay pursuant to Section 8.2(a) and Section 8.2(cpay: (i) in respect of all Buyer Indemnified Losses shall under Section 6.02(f) and Section 6.02(g) in the aggregate will not exceed the Damages CapPurchase Price (less any recoveries from the Insurance Policy), after which point amount the Seller shall Sellers will have no obligation to indemnify the Buyer Indemnitees from or against further Buyer Indemnified Losses pursuant to Section 6.02(f) and Section 6.02(g); and (ii) in respect of all Buyer Indemnified Losses under Section 6.02(g) in the aggregate will not exceed ten percent (10%) of the Purchase Price, after which amount the Sellers will have no obligation to indemnify the Buyer Indemnitees from and against further Buyer Indemnified Losses pursuant to Section 8.2(a) and Section 8.2(c6.02(g). The Seller’s obligation to indemnify the Buyer under Section 8.2(b), Section 8.2(d), Section 8.2(e) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (bc) No indemnification shall be made by the Buyer pursuant to Section 8.3(a) (i) unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding the Threshold Amount that would be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Buyer to the extent that the Seller Indemnified Losses exceed the Deductible. The maximum amount that the Buyer shall Buyers will be required to pay pursuant to Section 8.3(a) in respect of all Seller Indemnified Losses shall under Section 6.03(h) will not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against further Seller Indemnified Losses. The Buyer’s obligations to pay the Seller the Purchase Price and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (c) The limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental RepresentationPrice. (d) The amount of any Buyer Indemnified Losses shall will be reduced by (i) any amount actually received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor therefor, net of any expenses or costs of collection incurred by such Indemnified Party in recovering such amounts, including any increases in premiums under any insurance policies where such increase resulted from any such insurance payments; and (ii) the amount of any Tax Benefit actually realized by the Buyer Indemnitee relating theretoin the same or subsequent taxable year of such Buyer Indemnified Loss. Any Indemnified Party having a claim under this Article VIII VI shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, including the Insurance Policy, in each case as to reduce the amount of any indemnifiable Damages hereunderunder this Agreement. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will shall be made promptly to such Indemnifying Party. For purposes . (e) The amount of this Section 8.7(d)any Seller Indemnified Losses will be reduced by (i) any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Seller Indemnitee) or from any other party alleged to be responsible therefor, a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt expenses or costs of any indemnification paymentcollection incurred by such Indemnified Party in recovering such amounts, including the present value of any Tax detriment resulting increases in premiums under any insurance policies where such increase resulted from the loss of any depreciation such insurance payments; and amortization deductions over time, calculated using a discount rate of 3.5%(ii) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any Tax Benefit actually realized by the Seller Indemnitee in the same or subsequent taxable year of such Seller Indemnified Loss. Any Indemnified Party having a claim under this Article VI shall use commercially reasonable efforts to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages under this Agreement. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax Benefit, the Buyer Indemnitee or other costs incurred in obtaining such recovery or benefit) shall be deemed made promptly to recognize all other items such Indemnifying Party. (f) The procedures set forth in the foregoing provisions of income, gain, loss, deduction or credit before recognizing any item arising from this Section 6.07 will not apply with respect to claims solely against the receipt Insurance Policy. (g) The indemnification obligations under Section 6.02(g) with respect to a breach of any indemnity payment hereunder representation or the incurrence or payment of warranty contained in Section 3.11(d)(i) shall not apply to any Buyer Indemnified LossesLoss to the extent that (i) such Buyer Indemnified Loss is incurred as a direct result of any voluntary investigation that would involve subsurface sampling or excavation by or on behalf of any Indemnified Party, unless such investigation is (A) required pursuant to Environmental Laws or a Government Authority order, (B) conducted in connection with the defense of a Third Party Claim, (C) reasonably necessary to address an actual or suspected imminent threat to human health or the environment or (D) conducted in connection with any construction, expansion, renovation, maintenance or repair at the Real Property that is not undertaken in and does not have an impact on the areas set forth on items (2) and (3) on Section 6.02(c) of the Seller Disclosure Letter; (ii) such Buyer Indemnified Loss is incurred as a direct result of a Buyer’s breach of its obligations in Section 5.01(a), or the Indemnified Parties’ failure to comply with reasonable written and advance requests made by the Indemnifying Parties; or (iii) any Indemnified Party (A) fails to take commercially reasonable measures to minimize risks or to apply commercially reasonable environmental, health and safety standards, (B) communicates or interacts with Government Authorities in a manner that is unreasonable under the standard of a prudent businessman or (C) does not use reasonable efforts to minimize the incurrence and amount of Damages for which the Third Party has indemnification obligations under the Environmental Agreement. (h) The Buyers acknowledge that the Sellers or their respective Affiliates have a claim for indemnification for certain Indemnifiable Environmental Matters under the Environmental Agreement. The indemnification obligations of the Sellers under this Article VI shall not be limited to or by (i) any actual receipt of funds for valid indemnification claims by a Seller or its Affiliates or payment by or on behalf of such Third Party, (ii) any insolvency of or failure to perform by any such Third Party, or (iii) any limitation or disallowance of such valid claim due to a Seller’s or its Affiliates’ actions or omissions, including any failure to comply with the terms of such Environmental Agreement or any contribution to or exacerbation of the conditions subject to indemnification under the Environmental Agreement.

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification shall be made by the Seller pursuant to Section 8.2(a), Section 8.2(c) or Section 8.2(c8.2(d) (i) unless such individual Buyer Indemnified Loss or series of related Buyer Indemnified Losses exceeds the Threshold AmountAmount (and any such Losses relating to or arising out of any individual event, matter or occurrence, or series of related events, matters or occurrences for an amount less than or equal to the Threshold Amount shall not be considered “Losses” for purposes of this Agreement and shall be excluded from the calculation of Losses for purposes of determining whether or not Losses exceeding the Deductible has occurred for purposes of Section 8.7(a)(ii), but the amount of any Losses relating to or arising out of any individual event, matter or occurrence, or series of related events, matters or occurrences for an amount greater than the Threshold Amount shall be considered Losses for their full amount), and (ii) unless and until the aggregate amount of Buyer Indemnified Losses exceeding the Threshold Amount that would otherwise be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Seller to the extent that the Buyer Indemnified Losses exceed the Deductible. The Seller’s obligation to indemnify the Buyer under Section 8.2(a) for a breach of the Company’s representations and warranties set forth in Section 3.17 shall not be subject to (A) the Threshold Amount or (B) the Deductible, and such Buyer Indemnified Losses shall be paid from the first dollar, subject to the Damages Cap. The Seller’s obligation to indemnify the Buyer under Section 8.2(a) for a breach of the Company’s representations and warranties set forth in Section 3.16 shall not be subject to (A) the Threshold Amount or (B) the Deductible, and such Buyer Indemnified Losses shall be paid from the first dollar that exceeds $300,000, subject to the Damages Cap. The maximum amount that the Seller shall be required to pay pursuant to Section 8.2(a), Section 8.2(c) and Section 8.2(c8.2(d) in respect of all Buyer Indemnified Losses shall not exceed the Damages Cap, after which point the Seller shall have no obligation to indemnify the Buyer Indemnitees from and against further Buyer Indemnified Losses. The Seller’s obligation to indemnify the Buyer under Section 8.2(g) shall not be subject to (A) the Threshold Amount or (B) the Deductible, and such Buyer Indemnified Losses pursuant shall be paid from the first dollar, subject to Section 8.2(a) and Section 8.2(c)an aggregate limit at the Specified Matters Damages Cap. The Seller’s obligation to indemnify the Buyer under Section 8.2(b), Section 8.2(d8.2(e), Section 8.2(e8.2(f) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (b) No indemnification shall be made by the Buyer pursuant to Section 8.3(a) (i) unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold Amount, (and any such Losses relating to or arising out of any individual event, matter or occurrence, or series of related events, matters or occurrences for an amount less than or equal to the Threshold Amount shall not be considered “Losses” for purposes of this Agreement and shall be excluded from the calculation of Losses for purposes of determining whether or not Losses exceeding the Deductible has occurred for purposes of Section 8.7(b)(ii), but the amount of any Losses relating to or arising out of any individual event, matter or occurrence, or series of related events, matters or occurrences for an amount greater than the Threshold Amount shall be considered Losses for their full amount), and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding the Threshold Amount that would be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Buyer to the extent that the Seller Indemnified Losses exceed the Deductible. The maximum amount that the Buyer shall be required to pay pursuant to Section 8.3(a) in respect of all Seller Indemnified Losses shall not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against further Seller Indemnified Losses. The Buyer’s obligations to pay and deliver to the Seller the Purchase Price Total Consideration and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (c) (i) The limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental RepresentationRepresentation and (ii) the limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to any Claim for Fraud. (d) The amount of any Buyer Indemnified Losses shall be reduced by (i) any amount actually received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor and (ii) the amount of any Tax Benefit actually realized by directly or indirectly available to the Buyer Indemnitee relating thereto. Any Indemnified Party having a claim under this Article VIII shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) make a good faith effort to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will be made promptly to such Indemnifying Party. For purposes of this Section 8.7(d), a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any such Tax Benefit, the Buyer Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Buyer Indemnified Losses.

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification shall be made by the Seller pursuant to Section 8.2(a) or Section 8.2(c) (i) unless such individual Buyer Indemnified Loss or series of related Buyer Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Buyer Indemnified Losses exceeding the Threshold Amount that would otherwise be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Seller to the extent that the Buyer Indemnified Losses exceed the Deductible. The maximum amount that the Seller shall be required to pay pursuant to Section 8.2(a) and Section 8.2(c) in respect of all Buyer Indemnified Losses shall not exceed the Damages Cap, after which point the Seller shall have no obligation to indemnify the Buyer Indemnitees from and against further Buyer Indemnified 45 Losses pursuant to Section 8.2(a) and Section 8.2(c). The Seller’s obligation to indemnify the Buyer under Section 8.2(b), Section 8.2(d), Section 8.2(e) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (b) No indemnification shall be made by the Buyer pursuant to Section 8.3(a) (i) unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding the Threshold Amount that would be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Buyer to the extent that the Seller Indemnified Losses exceed the Deductible. The maximum amount that the Buyer shall be required to pay pursuant to Section 8.3(a) in respect of all Seller Indemnified Losses shall not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against further Seller Indemnified Losses. The Buyer’s obligations to pay the Seller the Purchase Price and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (c) The limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental Representation. (d) The amount of any Buyer Indemnified Losses shall be reduced by (i) any amount actually received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor and (ii) the amount of any Tax Benefit actually realized by the Buyer Indemnitee relating thereto. Any Indemnified Party having a claim under Article VIII shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will be made promptly to such Indemnifying Party. For purposes of this Section 8.7(d), a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any such Tax Benefit, the Buyer Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Buyer Indemnified Losses. (e) The amount of any Seller Indemnified Losses shall be reduced by (i) any amount actually received by a Seller Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Seller Indemnitee) or from any other party alleged to be responsible therefor and (ii) the amount of any Tax Benefit actually realized by the Seller Indemnitee relating thereto. Any Indemnified Party having a claim under Article VIII shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will be made promptly to such Indemnifying Party. For purposes of this Section 8.7(e), a “Tax Benefit” shall mean a reduction in the Seller Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any such Tax Benefit, the Seller Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Seller Indemnified Losses. (f) For the avoidance of doubt, the Buyer Indemnitees shall not be entitled to any indemnification under this Article VIII if any Tax attributes of the Company or any other Acquired Entity (including net operating loss carryovers, capital loss carryovers, adjusted basis, or credits) are not available to the Company or any other Acquired Entity or any other Person for any Tax period (or portion thereof) beginning after the Closing Date.

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification shall be made by the Seller Selling Parties pursuant to Section 8.2(a7.2(a) or and Section 8.2(c) 7.2(b): (i) for any individual Buyer Indemnified Loss unless such individual Buyer Indemnified Loss or series of related Buyer Indemnified Losses exceeds the Threshold AmountDe Minimis Amount (and excluding any Specific Indemnities Matter (defined below), and (ii) unless and until the aggregate amount of Buyer Indemnified Losses exceeding permitted under clause (i) above (and excluding any Specific Indemnities Matter) exceed the Threshold Amount that would otherwise be subject to indemnification exceeds the Deductible, andTipping Basket, in such which event, indemnification shall only be made by the Seller to Selling Parties starting with the extent that the first dollar of such Buyer Indemnified Losses exceed in excess of fifty percent (50%) of the DeductibleTipping Basket. Notwithstanding anything to the contrary in the preceding sentence, indemnification by the Selling Parties for Damages for each of the matters set forth in Section 4.10, Section 4.11(b), Section 4.14(l), Section 4.16, Section 4.17(a)(ii), Section 4.17(a)(iv), Section 4.17(a)(vi), and Section 4.18(e) of the Disclosure Schedules (taken individually and not in conjunction with any other matter in each aforesaid Section or any other Section of the Disclosure Schedule, but includes any individual matter disclosed in the aforesaid Sections of the Disclosure Schedule by reference to another Section of the Disclosure Schedules; it being clarified that Damages for one or more Proceedings with respect to such individual matter shall be treated for the purposes of this non-obstante proviso as Damages for a single matter) (each such matter, a “Specific Indemnities Matter”) is subject to the following: (A) the Selling Parties shall not be liable to indemnify for a Specific Indemnities Matter unless the Damages for such individual Specific Indemnities Matter exceeds Two Hundred Fifty Thousand Dollars ( $250,000.00) (the “Specific Indemnities Loss Amount”); (B) once the Specific Indemnities Loss Amount has been reached for an individual Specific Indemnities Matter, indemnification can be claimed by any Buyer Indemnitees for such Specific Indemnities Matter starting with the first dollar of Damages for such Specific Indemnities Matter in excess of its Specific Indemnities Loss Amount; provided however, that the Selling Parties shall only be obligated to indemnify Buyer Indemnitees for 50% of the amount of Damages for such Specific Indemnities Matter that exceeds the Specific Indemnities Loss Amount, with Buyer, on behalf of itself, and its Affiliates, hereby agreeing to be liable for the remaining amount of Damages for such Specific Indemnities Matter in excess of its Specific Indemnities Loss Amount; and (C) Buyer shall consult with Seller Representative before choosing to incur out-of-pocket costs and expenses in respect of a Specific Indemnities Matter for which Xxxxx seeks indemnification hereunder, and Xxxxx shall consider any reasonable comments of Seller Representative with respect to Buyer’s plan to address such Specific Indemnities Matter; provided, however that if after such consultation Buyer and Seller Representative disagree on the plan to address the Specific Indemnities Matter, they will select a mutually agreed, independent third party expert on the subject matter of the Specific Indemnities Matter (neither Buyer nor Seller Representative to unreasonably withhold their consent to the selection of such expert) to advise them on a plan to address the Specific Indemnities Matter, with Xxxxx retaining the ultimate discretion on how to address the Specific Indemnities Matter if Buyer and Seller Representative continue to disagree after receiving the advice of such expert. In no event shall Damages for a Specific Indemnities Matter count against the De Minimis Amount or the Tipping Basket. In no event shall the disclosure of a Specific Indemnities Matter in the Disclosure Schedules or elsewhere limit Buyer Indemnities’ rights to indemnification hereunder. The maximum amount that the Seller Selling Parties shall be required to pay pursuant to Section 8.2(a) 7.2(a), Section 7.2(b), and Section 8.2(c7.2(c) in respect of all Buyer Indemnified Losses shall not exceed the Damages Cap, after which point the Seller Selling Parties shall have no obligation to indemnify the Buyer Indemnitees from and against any further Buyer Indemnified Losses pursuant to Section 8.2(a) and Section 8.2(c). The Seller’s obligation to indemnify the Buyer under Section 8.2(b7.2(a), Section 8.2(d7.2(b), Section 8.2(e) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (b) No indemnification shall be made by the Buyer pursuant to Section 8.3(a) (i) unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold Amount, and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding the Threshold Amount that would be subject to indemnification exceeds the Deductible, and, in such event, indemnification shall only be made by the Buyer to the extent that the Seller Indemnified Losses exceed the Deductible. The maximum amount that the Buyer shall be required to pay pursuant to Section 8.3(a) in respect of all Seller Indemnified Losses shall not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against further Seller Indemnified Losses. The Buyer’s obligations to pay the Seller the Purchase Price and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (c) The limitations set forth in Section 8.7(a) and Section 8.7(b) shall not apply to Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental Representation7.2(c). (d) The amount of any Buyer Indemnified Losses shall be reduced by (i) any amount actually received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor and (ii) the amount of any Tax Benefit actually realized by the Buyer Indemnitee relating thereto. Any Indemnified Party having a claim under Article VIII shall use commercially reasonable efforts (provided that no Indemnified Party shall be obligated to threaten or bring any Proceeding) to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses and Tax or other costs incurred in obtaining such recovery or benefit) will be made promptly to such Indemnifying Party. For purposes of this Section 8.7(d), a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing the amount of any such Tax Benefit, the Buyer Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Buyer Indemnified Losses.

Certain Limitations on Indemnification for Third-Party Claims and Direct Claims. (a) No indemnification shall be made by the Seller Selling Parties pursuant to Section 8.2(a) or Section 8.2(c7.2(a) (i) for any individual Buyer Indemnified Loss unless such individual Buyer Indemnified Loss or series of related Buyer Indemnified Losses exceeds the Threshold De Minimis Amount, and (ii) unless and until the aggregate amount of Buyer Indemnified Losses exceeding permitted under clause (i) above exceed the Threshold Amount that would otherwise be subject to indemnification exceeds the Deductible, andTipping Basket, in such which event, indemnification shall only be made by the Seller to Selling Parties starting with the extent that the first dollar of such Buyer Indemnified Losses exceed in excess of fifty percent (50%) of the DeductibleTipping Basket. The maximum amount that the Seller Selling Parties, jointly and severally, shall be required to pay pursuant to Section 8.2(a) and Section 8.2(c7.2(a) in respect of all Buyer Indemnified Losses shall not exceed the Damages Cap, after which point the Seller Selling Parties shall have no obligation to indemnify the Buyer Indemnitees from and against any further Buyer Indemnified Losses pursuant to Section 8.2(a) and Section 8.2(c7.2(a). The Seller’s obligation to indemnify the Buyer under Section 8.2(b), Section 8.2(d), Section 8.2(e) or Section 9.13 shall not be subject to any of the limitations in this Section 8.7. (b) No indemnification shall be made by the Buyer pursuant to Section 8.3(a7.3(a) (i) for any individual Seller Indemnified Loss, unless such Seller Indemnified Loss or series of Seller Indemnified Losses exceeds the Threshold De Minimis Amount, in which event the full amount of such Buyer Indemnified Loss from the first dollar shall count toward the Tipping Basket and (ii) unless and until the aggregate amount of Seller Indemnified Losses exceeding permitted under clause (i) above exceed the Threshold Amount that would be subject to indemnification exceeds the Deductible, andTipping Basket, in such which event, indemnification shall only be made by Buyer starting with the Buyer first dollar of such Seller Indemnified Losses, without regard to the extent that the Seller Indemnified Losses exceed the DeductibleTipping Basket. The maximum amount that the Buyer shall be required to pay pursuant to Section 8.3(a7.3(a) in respect of all Seller Indemnified Losses shall not exceed the Damages Cap, after which point the Buyer shall have no obligation to indemnify the Seller Indemnitees from and against any further Seller Indemnified Losses. The Buyer’s obligations Losses pursuant to pay the Seller the Purchase Price and the Buyer’s obligations to indemnify the Seller under Section 8.3(b) or Section 9.13 shall not be subject to any of the limitations in this Section 8.77.3(a). (c) The limitations set forth in Section 8.7(a7.7(a) and Section 8.7(b7.7(b) shall not apply to (i) Buyer Indemnified Losses or Seller Indemnified Losses, respectively, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Seller Fundamental Representation, Company Fundamental Representation or Buyer Fundamental Representation, (ii) Buyer Indemnified Losses under Section 7.2(b), (c), (d), (e) or (f), (iii) Seller Indemnified Losses under Section 7.3(b), (c), (d) or (e), or (iv) in the event of Fraud. Notwithstanding the preceding sentence, however, except in the event of Fraud, in no event shall any Person be entitled to indemnification under Section 7.2 or Section 7.3 for any amounts in excess of the Purchase Price. (d) The amount of any Buyer Indemnified Losses shall be reduced by (i) any amount actually directly or indirectly received by a Buyer Indemnitee with respect thereto under any insurance coverage (other than self-insurance or insurance coverage provided by any captive insurance company that is an Affiliate of a Buyer Indemnitee) or from any other party alleged to be responsible therefor (net of costs of recovery and (ii) the amount of after giving effect to any Tax Benefit actually realized by the Buyer Indemnitee relating theretoapplicable deduction or retention and insurance premiums attributable to such claims). Any Indemnified Party having a claim under Article VIII VII shall use commercially reasonable efforts (provided that no make a good faith effort to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case, as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery is received or enjoyed by an Indemnified Party after it receives payment under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of costs of recovery and after giving effect to any applicable deduction or retention and insurance premiums attributable to such claims) will be made promptly by such Indemnified Party to the Indemnifying Party. (e) The amount of any Seller Indemnified Losses shall be obligated reduced by any amount directly or indirectly received by a Seller Indemnitee with respect thereto under any insurance coverage or from any other party alleged to threaten be responsible therefor (net of costs of recovery and after giving effect to any applicable deduction or bring any Proceeding) retention and insurance premiums attributable to such claims). Any Indemnified Party having a claim under Article VII shall make a good faith effort to recover any Damages from insurers of such Indemnified Party or its Affiliates under applicable insurance policies, in each case as to reduce the amount of any indemnifiable Damages hereunder. If such a recovery or benefit is received or enjoyed by an Indemnified Party after it receives payment or other credit under this Agreement with respect to any Damages, then a refund equal in aggregate amount of such recovery, reduction or setoff (net of reasonable expenses costs of recovery and Tax after giving effect to any applicable deduction or other costs incurred in obtaining retention and insurance premiums attributable to such recovery or benefitclaims) will be made promptly to such Indemnifying Party. . (f) For purposes the sole purpose of this Section 8.7(d), a “Tax Benefit” shall mean a reduction in the Buyer Indemnitee’s Taxes (calculated net of any Tax detriment resulting from the receipt of any indemnification payment, including the present value of any Tax detriment resulting from the loss of any depreciation and amortization deductions over time, calculated using a discount rate of 3.5%) arising out of any Damages that create a Tax deduction, credit or other Tax benefit. In computing determining the amount of losses under Section 7.2(a) and Section 7.3(b) (and not for determining whether or not any such Tax Benefitinaccuracy in, or breach of, any representation or warranty has occurred), any materiality, Material Adverse Effect or other similar qualifications in the Buyer Indemnitee representations and warranties shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Buyer Indemnified Lossesdisregarded.