Common use of Limitation on Indemnities Clause in Contracts

Limitation on Indemnities. Except with respect to the representations and warranties contained in Sections 5.1, 5.3, 5.4, 5.9, 5.12 or 5.18, or Sections 6.1 or 6.2, no claim for indemnification will be made by Purchaser or by the Sellers under Sections 10.3(a)(i), 10.3(b)(i) or 10.4 hereof, as the case may be, with respect to any individual item of liability or damage unless and to the extent that the aggregate of all such claims by Purchaser and LGP under, respectively, this Agreement and the Purchase and Sale Agreement, on the one hand, or by Sellers, on the other hand, shall be in excess of $200,000, whereupon Purchaser or Sellers, as the case may be, shall be liable for all such claims, damages and liabilities, and the maximum aggregate liability of the Sellers, on the one hand, and Purchaser and LGP, on the other hand for such claims, damages and liabilities shall be the Escrow Amount. Payments by an indemnifying party pursuant to Section 10.3 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in Section 10.1, irrespective of whether the subject matter of such claim or action shall have occurred before, on or after such date.

Limitation on Indemnities. Except with respect (a) Notwithstanding anything to the contrary set forth in this Agreement, the Sellers shall not be liable hereunder to the Buyer Indemnified Parties pursuant to Section 11.3, as a result of any breach of any of the representations or warranties of the Sellers and the Companies as set forth in ARTICLE III, any of the representations and warranties contained of the ESOP set forth in ARTICLE V, or any covenants set forth in Sections 5.1, 5.3, 5.4, 5.9, 5.12 7.1(b) and 7.1(i) of this Agreement or 5.18, or Sections 6.1 or 6.2, no claim for indemnification will be made by Purchaser or in any certificate delivered by the Sellers under Companies or the Trustee pursuant to Section 8.2(a) (other than those in Sections 10.3(a)(i3.2, 3.4 and 3.5), 10.3(b)(i) or 10.4 hereof, as the case may be, with respect to any individual item of liability or damage unless and except to the extent that the Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate $1,000,000, and then only to the extent of such excess. (b) The aggregate amount required to be paid by the Sellers pursuant to Section 11.3 as a result of any breach of any of the representations or warranties of the Sellers and the Companies as set forth in ARTICLE III, any of the representations and warranties of the ESOP set forth in ARTICLE V, or any covenants set forth in Sections 7.8 or 7.12 or in any certificate delivered by the Companies or the Trustee pursuant to Section 8.2(a) (other than those in Sections 3.2, 3.4 and 3.5 and the ERISA Representations and the Tax Representations), shall not exceed $12,000,000. (c) The aggregate amount required to be paid by the Sellers pursuant to Section 11.3 as a result of any breach of the ERISA Representations or Tax Representations or the covenants set forth in Sections 7.10(b), 7.10(d), 7.10(e), 10.1(a), 10.1(b), 10.1(c) or 10.1(d) or pursuant to Section 11.3(c), together with all amounts paid as a result of any breach of any of the representations or warranties of the Sellers and the Companies as set forth in ARTICLE III, any of the representations and warranties of the ESOP set forth in ARTICLE V, or any covenants set forth in Sections 7.8 or 7.12 or in any certificate delivered by the Companies, the Trustee or the Sellers pursuant to Section 8.2, shall not exceed the Indemnity Holdback. (d) The aggregate amount required to be paid by any individual Seller pursuant to Sections 11.3 and 11.4 shall not exceed such Seller’s share of the Net Purchase Price as set forth on Exhibit B attached hereto. (e) All liabilities of the Sellers under Section 11.3 (other than with respect to a breach by Xxxxxxx of the covenants provided in Section 10.2(a)) shall be paid first out of the cash portion of the Indemnity Holdback in accordance with the Escrow Agreement, and on the date that is twenty four (24) months following the Closing Date any amount remaining in the cash portion of the Indemnity Holdback shall be distributed to the Sellers, except to the extent that claims have been asserted within such period. To the extent not paid out of the cash portion of the Indemnity Holdback, liabilities of the Sellers under (i) Section 11.3(a) arising from breaches of the ERISA Representations or Tax Representations, (ii) Section 11.3(b) arising from breaches of ESOP-related covenants and (iii) Section 11.3(c) shall be paid pursuant to the terms of the Escrow Agreement by Purchaser surrender to the Buyer of that number of shares of Buyer Preferred Stock which when multiplied by the Preferred Stock Per Share Price is equal to the amount due. The Buyer’s right to receive payment in shares of Buyer Preferred Stock shall expire on the date that is twenty four (24) months following the date of the filing of the final Form 5500 Annual Report relating to the termination of the ESOP, except to the extent that any claims have been asserted and LGP undernot resolved prior to such date. All liabilities of an individual Seller under Section 11.4 shall, respectivelyat the option of the Buyer, this be payable out of the Indemnity Holdback, which will not increase the amount of the Indemnity Holdback. (f) Subject to the provisions of Section 11.8(e) and the Escrow Agreement and the Purchase and Sale Agreement, on the one hand, or by Sellers, on the other hand, shall be in excess of $200,000, whereupon Purchaser or Sellers, as the case may be, shall be liable for all such claims, damages and liabilities, and the maximum aggregate liability of the Sellers, on the one hand, and Purchaser and LGP, on the other hand for such claims, damages and liabilities shall be the Escrow Amount. Payments by an indemnifying party pursuant Buyer’s ability to Section 10.3 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered receive indemnification payments by the indemnified party from any third party with respect thereto. Notwithstanding anything to surrender of Buyer Preferred Stock, (i) the contrary contained in this Agreement, no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, several liability (for breach indemnification or otherwise) of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances each individual Seller with respect to the subject matter matters governed by Section 11.3 (other than with respect to a breach by Xxxxxxx of the covenants provided in Section 10.2(a)) shall be computed as set forth on the Schedule 11.8(f) (the “Indemnification Schedule”), a copy of which shall be delivered no later than two business days prior to Closing, and (ii) it is agreed that with respect to the matters in Section 11.3 the Buyer shall not be entitled to claim against any particular Seller an amount which is greater than such Seller’s share of the total value of such claim on or before based upon the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as percentages for each Seller set forth in Section 10.1the Indemnification Schedule hereto. For the avoidance of doubt, irrespective solely with respect to the cash and securities that constitute Indemnity Holdback, the Sellers obligations shall be joint and several until the distribution of whether the subject matter of such claim or action shall have occurred before, on or after such dateIndemnity Holdback.

Limitation on Indemnities. Except with respect to the representations and warranties contained in Sections 5.1, 5.3, 5.4, 5.9, 5.12 or 5.18, or Sections 6.1 or 6.2, no (a) No claim for indemnification will be made by Purchaser Parent, on the one hand, or by Company, on the Sellers other hand, under Sections 10.3(a)(i), 10.3(b)(iSection 6.2(a) or 10.4 (b) hereof, as the case may berespectively, with respect to any individual item of liability or damage unless and to the extent that the aggregate of all such claims by Purchaser and LGP under, respectively, this Agreement and the Purchase and Sale Agreement, on the one hand, Parent or by Sellers, on the other hand, shall be in excess of $200,000, whereupon Purchaser or SellersCompany, as the case may be, shall be liable in excess of Thirty Thousand Dollars ($30,000) (the "Basket") and any indemnity claim shall be for all such claimsonly the amounts in excess of the Basket. (b) The cumulative, damages and liabilities, and the maximum aggregate liability of the Sellers, Parent on the one hand, hand and Purchaser and LGP, the Merging Parties on the other hand for such claimsall breaches of the representations and warranties under Article II and III, damages and liabilities respectively, of this Agreement, shall be the Escrow Amountproduct of 100,000 multiplied by the closing price of the Shares as quoted on the NASDAQ NMS on the Closing Date or the trading date most recently preceding the Closing Date (collectively, the "Cap"). The aggregate liability of each individual Shareholder shall equal the result of multiplying the Cap by a fraction, the numerator of which is the number of Shares received by the Shareholder as such Shareholder's portion of the Purchase Price and the denominator of which is 100,000 (as adjusted for stock dividends, splits and similar recapitalization events). Notwithstanding any other provision of this Agreement there shall be no Basket or Cap with respect to the representations and warranties in Sections 3.5 and 3.8. (c) Payments by an indemnifying party pursuant to Section 10.3 6.2 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered reasonably recoverable by the indemnified party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in Section 10.16.1, irrespective of whether the subject matter of such claim or action shall have occurred before, on or after such date. Any payment made by Company to Parent, as the case may be, under this Article VI shall constitute a reduction of the Purchase Price for all purposes, including Federal, state and local tax as well as financial accounting purposes. (d) The Merging Parties hereby severally agree that any economic or monetary loss or damage caused to Parent arising from any misrepresentation by the Company, any breach of any representation, warranty, or covenant contained herein, or any default in or breach of any term or condition of this Agreement by the Company ("Damages"), shall give Parent the right, in addition to each and every other remedy Parent may have at law or in equity, including without limitation Parent's general indemnification rights, subject to the restrictions set forth below, to cancel the number of shares, including all shares subject to the Warrant, to the extent of the Damages incurred by the Parent with the calculation of the number of the shares to be canceled, calculated at the greater of (i) the closing price of the Shares as quoted on the NASDAQ NMS on the Closing Date or most recently preceding trading date (adjusted for stock dividends, splits and similar recapitalization events), or (ii) the closing price of Parent's common stock on the NASDAQ National Market (or if not then listed for trading on the NASDAQ National Market, the primary securities exchange on which Parent's common stock is then traded), at the time Damages are paid for by Parent (as per subsection (ii)(2), below). If and at such time as any shares are canceled pursuant to this Section, the Merging Parties shall promptly surrender to Parent the Shares, and the Parent shall issue a new share certificate reflecting the reduced number of Shares. Provided, however, that no such reduction of Exchanged Shares shall be made until the following procedures shall have been completed: (i) If there occurs an event that Parent asserts is an indemnifiable event pursuant to this Agreement, Parent shall notify Company promptly. If such event involves (x) any claim or (y) the commencement of an action or proceeding by a third person, Parent will give Company prompt written notice of such claim or the commencement of such action or proceeding. Such notice shall be a condition precedent to any liability of the Company hereunder; PROVIDED, that the failure to provide prompt notice as provided herein will limit Parent's cancellation rights hereunder only to the extent that such failure prejudices Company. (ii) The Merging Parties shall have received a certificate signed by Parent ("Certificate"): (A) stating that Parent has paid Damages, or the Damages are such that they may be reasonably ascertainable by the parties, in an aggregate stated amount, and stating that Parent believes that it is entitled to cancel the number of Shares pursuant to and in the manner contemplated by this Agreement with respect to such amount, and (B) specifying in reasonable detail the individual items of Damages included in the amount so stated and the amount and date each such item was paid (if applicable), Parent shall, subject to the Merging Parties' rights to object to such reduction of the Shares pursuant to (iii) hereafter, be entitled to cancel the number of shares by the amount of such claim for Damages. (iii) The Merging Parties shall have thirty (30) days after their receipt of a Certificate from Parent to object in writing to such claim for cancellation of the shares. After the expiration of such thirty (30) day period, if no Merging Party has made an objection in writing, Parent shall be entitled to cancel the number of shares by the amount of its claim for Damages, however, no such reduction shall be made if a Merging Party has made a timely objection to such claim pursuant to this subsection (iii). If a Merging Party disputes its being liable for such Damages, the matter will be resolved pursuant to Section 8.4 and Parent shall be limited to monetary indemnification as a remedy unless otherwise mutually agreed by the parties in writing. If a Merging Party disputes the amount of Damages, but not the liability therefore, then if such Merging Party later substantially prevails in the determination of Damages, such Merging Party shall retain the right to satisfy such Damages in Shares at the price calculated in this subsection (d). (iv) Each Merging Party may use Shares to pay any undisputed Damages, using the same price per share as set forth in this subsection (d).

Limitation on Indemnities. Except with respect Any provision of this Agreement to the representations and warranties contained in Sections 5.1, 5.3, 5.4, 5.9, 5.12 or 5.18, or Sections 6.1 or 6.2contrary notwithstanding, no claim for indemnification will by any Purchaser against Seller and/or the Shareholders (which, for the purposes of this sentence only, shall be made by Purchaser considered a collective body, and shall be referred to as the "Seller Group" and shall be considered a single party), or by the Sellers under Sections 10.3(a)(iSeller Group against Purchaser, shall be valid and assertible unless the amount of such claim exceeds Two Thousand Five Hundred Dollars ($2,500.00) (the "Minimum Claim Amount") and unless and until the aggregate amount of all claims exceeds Twenty-Five Thousand Dollars ($25,000.00) (the "Basket Amount"), 10.3(b)(i) or 10.4 hereof, as the case and then such party may be, with respect to any individual item of liability or damage unless and only seek indemnification to the extent all claims exceed the Basket Amount; provided however, that all claims shall count toward the aggregate Basket Amount, regardless of all such claims by Purchaser and LGP under, respectively, whether they exceed the Minimum Claim Amount. Notwithstanding any provision of this Agreement to the contrary notwithstanding, the Minimum Claim Amount and the Purchase and Sale AgreementBasket Amount shall not apply to: (i) the failure of Purchaser to perform, on the one hand, pay or by Sellers, on the other hand, shall be in excess of $200,000, whereupon Purchaser or Sellers, as the case may be, shall be liable for all such claims, damages and liabilities, and the maximum aggregate discharge any liability of the Sellers, on the one hand, and Purchaser and LGP, on the other hand for such claims, damages and liabilities shall be the Escrow Amount. Payments by an indemnifying party assumed pursuant to Section 10.3 shall be limited 1.3; (ii) the failure of Seller to perform, pay or discharge any liability not assumed by Purchaser pursuant to Section 1.3; (iii) any claim relating to Seller's non-compliance with the amount provisions of any liability bulk transfer law or damage that remains the WARN Act; (iv) the operation of the Meridian Business after deducting therefrom the Closing; (v) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party party's failure to comply with respect thereto. Notwithstanding anything to the contrary contained in its affirmative obligations under this Agreement, no claim by ; or (vi) Seller's indemnification obligations under Section 10.3(f) above or any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as representations and warranties set forth in the first sentence of Section 10.1, irrespective 3.24 or the first and second sentences of whether the subject matter of such claim or action shall have occurred before, on or after such dateSection 3.7.

Limitation on Indemnities. Except with respect to the representations and warranties contained in Sections 5.12.01(a), 5.3(b), 5.4(q), 5.9, 5.12 or 5.18(u), or Sections 6.1 2.02 (a), (b), (c) or 6.2(e), or Sections 2.03(a), (b), (c) or (e) of this Agreement, no claim for indemnification will be made by Purchaser Fiserv and/or Buyer or by the Sellers Seller under Sections 10.3(a)(i), 10.3(b)(iSection 5.03(a)(i) or 10.4 hereof, as the case may be, (b)(i) hereof with respect to any individual item of liability or damage (A) unless and to the extent that the aggregate of all such claims by Purchaser and LGP under, respectively, this Agreement and the Purchase and Sale Agreement, on the one hand, Fiserv and/or Buyer or by SellersSeller, on as the other handcase may be, shall be in excess of $200,000250,000, whereupon Purchaser Fiserv and/or Buyer or SellersStock Purchase Execution Version Seller, as the case may be, shall be liable for all such claims, damages and liabilities, liabilities in excess of $250,000 up to a maximum amount equal to Seven Million Dollars ($7,000,000) and (B) unless the maximum aggregate liability claim for indemnification or notice of a claim that is reasonably expected to be a valid claim for indemnification is provided under this Agreement on or before the second anniversary of the Sellers, Closing Date and results in a valid claim for indemnification on or before the one hand, and Purchaser and LGP, on third anniversary of the other hand for such claims, damages and liabilities shall be the Escrow AmountClosing Date. Payments by an indemnifying party pursuant to Section 10.3 5.03 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant covenant, or agreement on which such claim or action is based ceases to survive as set forth in Section 10.15.01, irrespective of whether the subject matter of such claim or action shall have occurred before, on or after such date.

Limitation on Indemnities. Except with respect to the representations and warranties contained in Sections 5.1, 5.3, 5.4, 5.9, 5.12 or 5.18, or Sections 6.1 or 6.2, no No claim for ------------------------- indemnification will be made by Purchaser Fiserv and Buyer or the Company, or by the Sellers JWGFC and Seller, under Sections 10.3(a)(i), 10.3(b)(iSection 5.03(a)(i) or 10.4 hereof, as the case may be, (b)(i) hereof with respect to any individual item of liability or damage unless and to the extent that the aggregate of all such claims by Purchaser Fiserv and LGP under, respectively, this Agreement and Buyer or the Purchase and Sale Agreement, on the one handCompany, or by Sellers, on the other hand, shall be in excess of $200,000, whereupon Purchaser or SellersJWGFC and Seller, as the case may be, shall be in excess of $250,000, and neither Fiserv and Buyer or the Company, nor JWGFC and Seller, as the case may be, shall be required to pay or be liable for all the first $250,000 in aggregate amount of such claims, damages and liabilities, and the maximum aggregate liability of the Sellers, on the one hand, and Purchaser and LGP, on the other hand for such claims, damages and liabilities shall be the Escrow Amount. Payments by an indemnifying party pursuant to Section 10.3 5.03 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered reasonably recoverable by the indemnified party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in Section 10.1this Agreement, irrespective of whether the subject matter of such claim or action shall have occurred before, on or after such date.