Common use of Liability Limits Clause in Contracts

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, with respect to the Specified Matter Indemnified Liabilities: (i) Seller shall be solely liable to the Buyer Indemnified Parties for all Specified Matter Indemnified Liabilities until the aggregate amount of such Specified Matter Indemnified Liabilities exceeds $2,500,000, (ii) Seller and the Company shall each be liable for 50% of all Specified Matter Indemnified Liabilities in excess of $2,500,000 until the aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000, and (iii) the Company shall be solely liable for all Specified Matter Indemnified Liabilities in excess of $9,000,000. (b) The amount of any Indemnified Liabilities shall be limited to the amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable insurance policies (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments). If the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, the Indemnified Party shall reimburse the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recovery.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreementherein, with respect to the Specified Matter Indemnified Liabilities: (i) Seller shall be solely liable to the Buyer Purchaser Indemnified Parties shall not make a claim for all Specified Matter Indemnified Liabilities indemnification under this Article X for Purchaser Losses unless and until the aggregate amount of such Specified Matter Purchaser Losses exceeds Three Million Dollars ($3,000,0000) (the “Purchaser Basket”), in which event the Purchaser Indemnified Liabilities exceeds $2,500,000Parties may only claim indemnification for Purchaser Losses exceeding the Purchaser Basket; provided, however, the Surviving Obligations and the Surviving Representations shall not be subject to the Purchaser Basket. The amount of Purchaser Losses otherwise payable to the Purchaser Indemnified Parties pursuant to this Article X shall be net of (a) any Tax Benefits actually realized by the Purchaser or the Company directly as a result of such Purchaser Losses (any such Tax Benefit to be determined after taking into consideration any Tax effect of the indemnification payment made to the Purchaser with respect to such Purchaser Loss), (iib) Seller and any insurance proceeds actually received by the Purchaser Indemnified Parties under insurance policies maintained by the Company shall each be liable for 50% of all Specified Matter Indemnified Liabilities in excess of $2,500,000 until prior to the aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000Closing Date directly resulting from such Purchaser Losses, and (iiic) any insurance proceeds actually received by the Company shall be solely liable for all Specified Matter Purchaser Indemnified Liabilities in excess of $9,000,000. (b) The amount of Parties under any Indemnified Liabilities shall be limited to the amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable professional liability insurance policies (net whether maintained prior to or on or after the Closing Date) directly resulting from such Purchaser Losses. No liability shall attach to the Company and its Subsidiaries in respect of any costs claim if such claim would not have arisen but for a change in legislation or expenses incurred accounting policies made after the Closing Date or a change in interpretation of the collection thereof, including deductibles, Law as determined by a court or pursuant to an administrative rule-making decision. The sole and net exclusive source of applicable premium adjustments). If funds for satisfaction of all Purchaser Losses shall be the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, the Indemnified Party shall reimburse the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recoveryGeneral Escrow Fund.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, the Purchaser Indemnified Parties shall have no right to indemnification or payment under this Agreement with respect to, or based on, Taxes to the Specified Matter Indemnified Liabilities: extent such Taxes (i) Seller shall be solely liable are attributable to any Tax period other than a Tax period (or portion of a Straddle Period) ending on or before the Closing Date, (ii) are due to the Buyer unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date, (iii) result from any transactions or actions taken by, or omissions by, the Purchaser Indemnified Parties for all Specified Matter or any of their Affiliates (including the Company) after the Closing that are not specifically contemplated by this Agreement, or (iv) were already taken into account in the calculation of Indebtedness or Transaction Expenses, in each case as finally determined hereunder. The Sellers will not have any obligation to indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Liabilities until Parties pursuant to Section 9.1(a) in respect of any Loss unless the aggregate amount of such Specified Matter all Losses incurred or suffered by the Purchaser Indemnified Liabilities Parties pursuant to Section 9.1(a) exceeds $2,500,000100,000, (ii) Seller and at which point the Company shall each be liable for 50% full amount of all Specified Matter such Losses shall be recoverable, starting from the first dollar of such Losses; provided, however, that the foregoing limitations will not apply to claims for indemnification pursuant to Section 9.1(a) in respect of breaches of, or inaccuracies in, the Fundamental Representations or the representations and warranties set forth in Article X (Tax Matters). The Purchaser will not have any obligation to indemnify, defend, reimburse and hold harmless the Seller Indemnified Liabilities Parties in excess respect of $2,500,000 until any Loss unless the aggregate amount of Specified Matter all Losses incurred or suffered by the Seller Indemnified Liabilities Parties exceeds $9,000,000100,000, and (iii) at which point the Company full amount of all such Losses shall be solely liable recoverable, starting from the first dollar of such Losses; provided, however, that the foregoing limitations will not apply to (a) claims for all Specified Matter Indemnified Liabilities in excess of $9,000,000. the purchase price or (b) The amount of any Indemnified Liabilities shall be limited to the amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable insurance policies (net of any costs claims based upon fraud, willful misconduct or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments). If the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, the Indemnified Party shall reimburse the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recoveryintentional misrepresentation.

Liability Limits. (a) Notwithstanding anything herein to the contrary set forth contrary, the Participating Stockholders shall not be liable to the Parent Indemnified Parties for indemnification under Sections 7.1(a)(i), (ii) and (v) and Section 7.1(b): (i) unless and until the Parent Indemnified Parties have incurred Losses under Section 7.1 in excess of $287,500 in the aggregate (the “Deductible Amount”), at which point the Parent Indemnified Parties shall be entitled to be indemnified for the aggregate Losses under Section 7.1 in excess of the Deductible Amount; and (ii) with respect to any individual claim unless the amount of such individual claim exceeds $40,000. (b) Notwithstanding anything herein to the contrary, the Participating Stockholders shall not be liable to the Parent Indemnified Parties for indemnification under Section 7.1 with respect to any claim arising out of related to matters within the actual knowledge of Parent at the Effective Time. (c) Notwithstanding anything herein to the contrary, any Losses recoverable hereunder shall be reduced in amount by any Tax benefits realized in the form of cash proceeds received by Parent, and any amounts recovered from any collateral sources (including under applicable insurance policies and indemnification and other contractual rights), by any Indemnified Party. Parent agrees to use, and to cause each Parent Indemnified Party to use, all reasonable best efforts to realize all Tax benefits and recover all amounts from collateral sources, including making all claims under applicable insurance policies (other than self-insurance policies) and pursuing all indemnification and other contractual rights. (d) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE PARENT INDEMNIFIED PARTIES WILL NOT BE ENTITLED TO RECOVER OR ASSERT ANY CLAIM FOR INDEMNIFICATION UNDER SECTION 7.1 WITH RESPECT TO, NOR WILL THE INDEMNIFIABLE LOSSES HEREUNDER INCLUDE OR BE DEEMED TO INCLUDE, CONSEQUENTIAL DAMAGES OF ANY KIND (REGARDLESS OF THE CHARACTERIZATION THEREOF OR WHETHER OR NOT FORESEEABLE), DAMAGES CONSISTING OF BUSINESS INTERRUPTION LOSSES OR LOST PROFITS, DIMINUTION IN VALUE, DAMAGES COMPUTED ON A MULTIPLE OF EARNINGS, BOOK VALUE, DISCOUNTED CASH FLOW OR ANY SIMILAR BASIS, WHETHER OR NOT USED IN ARRIVING AT THE MERGER CONSIDERATION, OR ANY INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. (e) Notwithstanding anything herein to the contrary, the Parent Indemnified Parties will not be entitled to recover any Losses relating to any matter arising under, or any facts and circumstances relating to or arising out of, a provision of this Agreement to the extent that the Parent Indemnified Parties have already recovered Losses with respect to such matter pursuant to another provision of this Agreement. (f) Notwithstanding anything herein to the contrary, (i) to the extent that the Parent Indemnified Parties are entitled to indemnification under Section 7.1(a)(i) through (iii) and (v) or Section 7.1(b) for any Losses, with respect to such Losses, the Specified Matter Parent Indemnified Liabilities: Parties’ sole and exclusive recourse will be (iA) Seller shall be solely liable first, the right to offset such Losses against the Buyer undisbursed Escrow Shares (net of any valid claims pending against such undisbursed Escrow Shares by any Parent Indemnified Parties for all Specified Matter Indemnified Liabilities until Parties) by canceling that number of Escrow Shares equal in value (valuing each Escrow Share at the Parent Indemnification Share Price) to the aggregate amount of such Specified Matter Indemnified Liabilities exceeds $2,500,000Losses and (B) second, (ii) Seller and after the Company shall each be liable for 50% disbursement or cancelation of all Specified Matter Indemnified Liabilities in excess Escrow Shares, the right to offset any such Losses not offset against the Escrow Shares against any Contingent Payments to the extent payable to the Participating Stockholders; provided, however, that (i) each Participating Stockholder’s obligation to provide indemnification under Section 7.1(b) will be several and not joint and will not exceed such Participating Stockholder’s Participating Stockholder Pro Rata Percentage of $2,500,000 until the aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000, the Escrow Shares (valuing each Escrow Share at the Parent Indemnification Share Price) plus the Contingent Payments payable to such Participating Stockholder; and (iiiii) the Company aggregate amount of all Losses for which the Participating Stockholders shall be solely liable for all Specified Matter Indemnified Liabilities in excess pursuant to Section 7.1 shall not exceed the aggregate amount of $9,000,000the Escrow Shares (valuing each Escrow Share at the Parent Indemnification Share Price) plus the Contingent Payments. (bg) The aggregate amount of any Indemnified Liabilities all Losses for which Parent and the Surviving Corporation shall be limited liable pursuant to Section 7.1 shall not exceed the aggregate amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable insurance policies the Escrow Shares (net of any costs or expenses incurred in valuing each Escrow Share at the collection thereof, including deductibles, and net of applicable premium adjustments). If Parent Indemnification Share Price) plus the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, the Indemnified Party shall reimburse the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recoveryContingent Payments.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreementherein, with respect to the Specified Matter Indemnified Liabilities: (i) Seller shall be solely liable to the Buyer Indemnified Parties shall not make a claim against Caterpillar for all Specified Matter Indemnified Liabilities indemnification under this Article X for Buyer Losses unless and until the aggregate amount of such Specified Matter Buyer Losses exceeds Three Hundred Fifty Thousand Dollars ($350,000) (the "Buyer Basket"), in which event the Buyer Indemnified Liabilities exceeds $2,500,000, (ii) Seller and the Company shall each be liable Parties may claim indemnification for 50% of all Specified Matter Indemnified Liabilities Buyer Losses in excess of Three Hundred Fifty Thousand Dollars ($2,500,000 until the 350,000). The total aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000, and (iii) the Company Caterpillar's liability for Buyer Losses shall be solely liable for all Specified Matter Indemnified Liabilities in excess of limited to Ten Million Dollars ($9,000,00010,000,000) (the "Buyer Cap"); provided, however, Section 10.1(b), the Surviving Obligations and the Surviving Representations shall not be subject to the Buyer Cap. (b) The amount of any Indemnified Liabilities In computing Buyer Losses and Company Losses, lost profits and opportunity costs shall not be limited to recoverable, and recoverable actual damages shall include the amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable insurance policies (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments). If the Indemnifying Party pays or reimburses (or causes necessary to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, return the Indemnified Party to the same economic position it would have been in, with respect to out-of-pocket costs and expenditures, including the purchase price hereunder, absent the condition or event creating the loss, but otherwise shall reimburse not include consequential damages. By way of example, (i) if the Indemnifying Party (or cause the Indemnifying Party Owned Real Property was required to be reimbursedtemporarily closed due to an occurrence described in Section 10.1(f), Buyer Losses would include not only the cost of remediation, but also, for example, the cost of maintaining the facility during the closure, the cost of compensating non-productive employees during the closure and damages due third parties for non-performance by the Buyer as a result of the closure, and (ii) if the Buyer had to permanently stop operating the Business due to a breach of a representation by the Company, Buyer Losses might include, for any amounts actually recovered by such Indemnified Party (net of any costs or example, the original purchase price hereunder plus out-of-pocket expenses incurred by the Buyer in operating the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recoveryBusiness.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreementherein: (a) Subject to Section 11.05(c) below, with respect to the Specified Matter Indemnified Liabilities: (i) Seller shall be solely liable to the Buyer Indemnified Parties for all Specified Matter Indemnified Liabilities shall not be entitled to recover any Buyer Losses under Section 11.01(a) unless and until the aggregate amount of Buyer Losses for which Buyer Indemnified Parties would otherwise be entitled to indemnification under Section 11.01(a) exceed $100,000 (the “Deductible”), at which point Buyer Indemnified Parties shall become entitled to be indemnified for all such Specified Matter Losses incurred by Buyer Indemnified Liabilities exceeds $2,500,000, (ii) Seller and the Company shall each be liable for 50% of all Specified Matter Indemnified Liabilities Parties in excess of $2,500,000 until the aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000, and (iii) the Company shall be solely liable for all Specified Matter Indemnified Liabilities in excess of $9,000,000Deductible. (b) Subject to Section 11.05(c), the aggregate liability of each Seller for indemnification under Section 11.01(a) shall not exceed 50% of the aggregate Purchase Price paid by the Buyer to the particular Seller. (c) The amount limitations in subsections (a) and (b) of this Section 11.05 shall not apply to any Buyer Losses recoverable by Buyer Indemnified Parties as a result of any Indemnified Liabilities shall be limited to breach of a Seller Fundamental Representation or any Buyer Losses resulting from any actual fraud or intentional and willful misrepresentation by the amount of such Indemnified Liabilities that remain after deducting therefrom Sellers. (d) If any amounts actually recovered by any Indemnified Party under applicable insurance policies (net of any costs Buyer Losses or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments). If the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery Seller Losses sustained by an Indemnified Party under applicable are covered by an insurance policiespolicy, or an indemnification, contribution, or similar obligation of another Person (other than an Affiliate of such Indemnified Party), the Indemnified Party shall reimburse use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution, or similar payments; provided, however, that no Indemnified Party shall be required to institute any legal proceeding against any third party. The amount of any Buyer Losses or Seller Losses subject to indemnification under Section 11.01 (Indemnification Obligations of the Sellers) or Section 11.02 (Indemnification Obligations of Buyer), as applicable, shall be determined net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered in cash by the Indemnified Party after deducting therefrom all deductible amounts, increases in premiums specifically tied to such recoveries and out-of-pocket costs and expenses of such recoveries in connection with the facts giving rise to the right of indemnification. If any Indemnified Party actually receives such insurance proceeds or indemnity, contribution, or similar payments after the settlement of any indemnification claim under Section 11.01 (Indemnification Obligations of the Sellers) or Section 11.02 (Indemnification Obligations of Buyer), as applicable, such Indemnified Party shall refund to the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt amount of such insurance recoveryproceeds or indemnity, contribution, or similar payments, up to the amount actually received in connection with such indemnification claim.

Liability Limits. (a) From and after the Effective Time, the Company Stockholders shall have no liability for Losses in excess of the Escrow Shares except for Losses directly or indirectly related to (i) fraud by the Company or the Company Stockholders and (ii) any inaccuracy or misrepresentation in, or breach of, any of the Core Representations (collectively, the “Special Losses”); and the Company Stockholders shall be severally and not jointly liable for all Special Losses up to the Liability Cap. (b) From and after the Effective Time, the Company Stockholders shall have no liability for Losses in excess of the Escrow Shares and the Offset except for Losses directly or indirectly related to fraud by the Company or the Company’s Stockholders. (c) Notwithstanding anything else in this Agreement to the contrary, (i) under no circumstances shall the Company Stockholders be liable for Losses in excess of all Merger Consideration actually received by the Company Stockholders hereunder, excluding the Tax Grant Contingent Payment (the sum of all such Merger Consideration paid by Parent, and in the case of Parent Common Stock, measured using the same OUS Contingent Payment Average Closing Price or PMA Contingent Payment Average Closing Price, as applicable, used in calculating the number of shares of Parent Common Stock then payable under this Agreement, the “Liability Cap”), and (ii) under no circumstances shall any Company Stockholder be required to return any Merger Consideration already paid to such Company Stockholder except for Losses directly or indirectly related to fraud by the Company or the Company’s Stockholders. (d) Notwithstanding anything to the contrary in this Agreement, subject to Section 11.6(b) below, any Losses recoverable hereunder shall be reduced in amount by any Tax benefits and insurance proceeds realized by any Indemnified Party, and Parent and the Indemnified Parties shall, as a condition to receiving any amounts hereunder or otherwise seeking recovery hereunder, use all reasonable efforts to realize such benefits or proceeds. (e) Notwithstanding anything to the contrary in this Agreement, in no event shall the Carve-Out Plan Shares be subject to the obligations set forth in this AgreementArticle XI. (f) After the Effective Time, the Indemnified Parties sole and exclusive remedy with respect to the Specified Matter Indemnified Liabilities: (i) Seller subject matter of this Agreement or any each Company Related Agreement shall be solely liable pursuant to the Buyer Indemnified Parties for all Specified Matter Indemnified Liabilities until the aggregate amount of such Specified Matter Indemnified Liabilities exceeds $2,500,000indemnification provisions set forth in this Article XI, (ii) Seller and the Company shall each be liable for 50% of all Specified Matter Indemnified Liabilities except as set forth in excess of $2,500,000 until the aggregate amount of Specified Matter Indemnified Liabilities exceeds $9,000,000, and (iii) the Company shall be solely liable for all Specified Matter Indemnified Liabilities in excess of $9,000,000Section 12.13. (b) The amount of any Indemnified Liabilities shall be limited to the amount of such Indemnified Liabilities that remain after deducting therefrom any amounts actually recovered by any Indemnified Party under applicable insurance policies (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments). If the Indemnifying Party pays or reimburses (or causes to be paid or reimbursed) any amount of Indemnified Liabilities prior to any recovery by an Indemnified Party under applicable insurance policies, the Indemnified Party shall reimburse the Indemnifying Party (or cause the Indemnifying Party to be reimbursed) for any amounts actually recovered by such Indemnified Party (net of any costs or expenses incurred in the collection thereof, including deductibles, and net of applicable premium adjustments) promptly following such Indemnified Party’s receipt of such insurance recovery.