Common use of Limitation on Losses Clause in Contracts

Limitation on Losses. With respect to indemnification claims under this Section 11: (1) No party to this Agreement shall have an obligation for indemnification under this Section 11 unless the aggregate Losses (other than Losses to which neither the Cap nor the Basket apply, as described in sub paragraph 5 of this Section 11.5) suffered by the Seller Indemnitees or Buyer Indemnitees, as the case may be, under Sections 11.1 or 11.2, respectively, exceed $2,000,000 (the “Basket”). Losses to which the Basket applies, as described in the preceding sentence, are hereinafter referred to as the “Basket Losses.” At such time as their Basket Losses exceed $2,000,000 in the aggregate, the Seller Indemnitees or Buyer Indemnitees, as applicable, shall be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (and not merely the portion of such Basket Losses exceeding $2,000,000). (2) The maximum aggregate amount of Losses for which Seller and the Principals on the one hand, and Buyer on the other hand, shall be liable under this Section 11 shall be $50,000,000 (the “Cap”). (3) The amount of any Losses incurred or suffered by any Seller Indemnitees or Buyer Indemnitees (i) shall be increased by any Tax incurred or reasonably expected to be incurred as a result of or related to any such Losses, including any Tax related to the inclusion in gross income of insurance proceeds or a payment, and (ii) shall be reduced by any Tax benefit realized or reasonably expected to be realized as a result of or related to any such Losses. (4) The amount of any Loss incurred or suffered by any Seller Indemnitees or Buyer Indemnitees shall be reduced by any insurance proceeds or other third party recoveries received by such Indemnitees in connection with the breach, failure or other event which gave rise to such Loss (net of any costs incurred by such Indemnitees in connection with the collection of such insurance proceeds or other third party recoveries). (5) Notwithstanding the foregoing, neither the Cap nor the Basket shall apply to any Losses arising out of, or related to, (i) any breach of any representation or warranty contained in Sections 4.1 (Due Organization and Qualification), 4.3 (Authority to Execute), 4.11 (Judgments and Proceedings), 4.13 (Contracts), 4.17 (Intangibles), 4.18 (Title), 4.24 (No Broker), 5.1 (Organization), 5.2 (Authorization) or 5.5 (No Broker), (ii) any breach of any of the covenants to be performed under this Agreement by any of the parties hereto after the Closing, or (iii) the Excluded Liabilities. (6) Seller shall only be entitled to indemnification for Losses resulting from a breach by Buyer of the representations or warranties set forth in Section 5.6 of this Agreement with respect to any Buyer Stock which is issued as Earn-Out Consideration.

Limitation on Losses. With respect to indemnification claims under this Section 11: (1a) No party to this Agreement shall have an obligation for indemnification under this Section 11 unless the aggregate Losses (other than Losses to which neither the Cap nor the Basket applyNOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, as described in sub paragraph 5 of this Section 11.5) suffered by the Seller Indemnitees or Buyer IndemniteesTHE LIABILITY FOR INDEMNIFICATION OF ANY INDEMNIFYING PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE ACTUAL DAMAGES OF THE PARTY ENTITLED TO INDEMNIFICATION AND SHALL NOT OTHERWISE INCLUDE INCIDENTAL, as the case may beCONSEQUENTIAL, under Sections 11.1 or 11.2INDIRECT, respectivelySPECIAL, exceed $2,000,000 (the “Basket”). Losses to which the Basket appliesPUNITIVE, as described in the preceding sentenceEXEMPLARY OR OTHER SIMILAR DAMAGES, are hereinafter referred to as the “Basket Losses.” At such time as their Basket Losses exceed $2,000,000 in the aggregate, the Seller Indemnitees or Buyer Indemnitees, as applicable, shall be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (and not merely the portion of such Basket Losses exceeding $2,000,000)OTHER THAN COMPENSATORY DAMAGES. (2) The maximum aggregate amount of Losses for which Seller and the Principals on the one hand, and Buyer on the other hand, shall be liable under this Section 11 shall be $50,000,000 (the “Cap”). (3b) The amount of any Losses incurred or suffered payable under this Article IX by any Seller Indemnitees or Buyer Indemnitees the indemnifying party shall be reduced (i) shall be increased by any Tax incurred amounts actually recovered by the indemnified parties under insurance policies or reasonably expected from any other Person alleged to be incurred as a result of or related to responsible for any such Losses, including net of any Tax related expenses incurred by such indemnified party in collecting such amounts; provided, however, that nothing herein shall require any indemnified party to the inclusion in gross income of insurance proceeds or a paymentseek to obtain such recoveries, and (ii) shall be reduced by to take account of any Tax benefit of the indemnified parties arising from the incurrence of the Loss giving rise to the payment of any such indemnified amount, to the extent such Tax benefit is realized in the current and all future taxable years that the Losses are incurred. In computing the amount of any net Tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, deduction or reasonably expected credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Losses, and the Losses shall only be reduced at the time such Tax benefit is realized by the indemnified party. A Tax benefit will be considered to be realized on (A) the date on which the Tax benefit is received as a result refund of or related to any such Losses. (4) The amount of any Loss incurred or suffered by any Seller Indemnitees or Buyer Indemnitees shall be reduced by any insurance proceeds or other third party recoveries received by such Indemnitees in connection with the breach, failure or other event which gave rise to such Loss (net of any costs incurred by such Indemnitees in connection with the collection of such insurance proceeds or other third party recoveries). (5) Notwithstanding the foregoing, neither the Cap nor the Basket shall apply to any Losses arising out of, or related to, (i) any breach of any representation or warranty contained in Sections 4.1 (Due Organization and Qualification), 4.3 (Authority to Execute), 4.11 (Judgments and Proceedings), 4.13 (Contracts), 4.17 (Intangibles), 4.18 (Title), 4.24 (No Broker), 5.1 (Organization), 5.2 (Authorization) or 5.5 (No Broker), (ii) any breach of any of the covenants to be performed under this Agreement by any of the parties hereto after the ClosingTaxes, or (iiiB) to the Excluded Liabilities. (6) Seller shall only be entitled to indemnification extent that the Tax benefit is not received as a refund of Taxes but rather is claimed as an item that reduces liability for Losses resulting from a breach by Buyer Taxes, the due date of the representations or warranties set forth Tax Return that reflects such change in Section 5.6 of this Agreement with respect to any Buyer Stock which is issued as Earn-Out Considerationliability for Taxes.

Limitation on Losses. With respect to indemnification claims The provisions for indemnity under this Section 1110.2(a)(i) shall be effective only when: (1a) No party to this Agreement shall have an obligation the claim for indemnification is brought within the Applicable Survival Period; (b) the Losses related to any individual event or fact, or series of related events or facts, exceed an amount equal to $15,000.00 in the aggregate (the “Covered Losses”); provided, however, all Losses suffered or incurred as a result of a breach of the Fundamental Representations, fraud or intentional misrepresentation shall not be subject to the requirement that such Losses exceed the Covered Losses threshold; (c) such Covered Losses for which indemnification is sought exceed $300,000.00 in the aggregate (the “Threshold”), in which case a Buyer Indemnified Party shall be entitled to indemnification of all of its Losses in excess of the Threshold; provided, however, all Losses suffered or incurred as a result of a breach of the Fundamental Representations, fraud or intentional misrepresentation shall not be subject to the requirement that such Losses exceed the Threshold. For the avoidance of doubt, any Losses that do not exceed the Covered Losses amount, other than any such Losses suffered or incurred as a result of a breach of the Fundamental Representations, fraud or intentional misrepresentation, shall not be counted for purposes of determining whether the Threshold has been met; and (d) except with respect to any Losses related to fraud, intentional misrepresentation, a breach of any Fundamental Representation, or an intentional breach of any covenant or obligation of the Seller contained in this Agreement, in no event shall the cumulative indemnification obligation of Seller under this Section 11 unless ARTICLE X exceed an amount equal to fifteen percent (15%)of the aggregate Losses Closing Payment, in the aggregate. (other than Losses to which neither e) In addition, for purposes of determining the Cap nor amount of Loss under this ARTICLE X, all of the Basket apply, as described representations and warranties of Seller set forth in sub paragraph 5 ARTICLE III of this Section 11.5) suffered by the Seller Indemnitees or Agreement, and of Buyer Indemniteesset forth in ARTICLE IV of this Agreement, as the case may be, under Sections 11.1 or 11.2, respectively, exceed $2,000,000 (the “Basket”). Losses to which the Basket applies, as described in the preceding sentence, are hereinafter referred to as the “Basket Losses.” At such time as their Basket Losses exceed $2,000,000 in the aggregate, the Seller Indemnitees or Buyer Indemnitees, as applicable, shall be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (read and not merely the portion of such Basket Losses exceeding $2,000,000). (2) The maximum aggregate amount of Losses for which Seller and the Principals on the one hand, and Buyer on the other hand, shall be liable under this Section 11 shall be $50,000,000 (the “Cap”). (3) The amount of any Losses incurred or suffered by any Seller Indemnitees or Buyer Indemnitees (i) shall be increased by any Tax incurred or reasonably expected to be incurred as a result of or related interpreted without giving effect to any such Losses, including any Tax related to the inclusion in gross income of insurance proceeds or a payment, and (ii) shall be reduced by any Tax benefit realized or reasonably expected to be realized as a result of or related to any such Losses“materiality” qualifiers. (4) The amount of any Loss incurred or suffered by any Seller Indemnitees or Buyer Indemnitees shall be reduced by any insurance proceeds or other third party recoveries received by such Indemnitees in connection with the breach, failure or other event which gave rise to such Loss (net of any costs incurred by such Indemnitees in connection with the collection of such insurance proceeds or other third party recoveries). (5) Notwithstanding the foregoing, neither the Cap nor the Basket shall apply to any Losses arising out of, or related to, (i) any breach of any representation or warranty contained in Sections 4.1 (Due Organization and Qualification), 4.3 (Authority to Execute), 4.11 (Judgments and Proceedings), 4.13 (Contracts), 4.17 (Intangibles), 4.18 (Title), 4.24 (No Broker), 5.1 (Organization), 5.2 (Authorization) or 5.5 (No Broker), (ii) any breach of any of the covenants to be performed under this Agreement by any of the parties hereto after the Closing, or (iii) the Excluded Liabilities. (6) Seller shall only be entitled to indemnification for Losses resulting from a breach by Buyer of the representations or warranties set forth in Section 5.6 of this Agreement with respect to any Buyer Stock which is issued as Earn-Out Consideration.

Limitation on Losses. With respect The Losses giving rise to any indemnification claims under this Section 11: (1) No party obligation hereunder shall be limited to this Agreement shall have an obligation for indemnification under this Section 11 unless the aggregate Losses (other than Losses to which neither the Cap nor the Basket apply, as described in sub paragraph 5 of this Section 11.5) actual loss suffered by the Seller Indemnitees or Buyer IndemniteesIndemnified Party (i.e., as the case may be, under Sections 11.1 or 11.2, respectively, exceed $2,000,000 (the “Basket”). Losses to which the Basket applies, as described in the preceding sentence, are hereinafter referred to as the “Basket Losses.” At such time as their Basket Losses exceed $2,000,000 in the aggregate, the Seller Indemnitees or Buyer Indemnitees, as applicable, shall be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (and not merely the portion of such Basket Losses exceeding $2,000,000). (2) The maximum aggregate amount of Losses for which Seller and the Principals on the one hand, and Buyer on the other hand, shall be liable under this Section 11 shall be $50,000,000 (the “Cap”). (3) The amount of any Losses incurred or suffered by any Seller Indemnitees or Buyer Indemnitees (i) shall be increased by any Tax incurred or reasonably expected to be incurred as a result of or related to any such Losses, including any Tax related to the inclusion in gross income of insurance proceeds or a payment, and (ii) shall be reduced by any Tax benefit realized or reasonably expected to be realized as a result of or related to any such Losses. (4) The amount of any Loss incurred or suffered by any Seller Indemnitees or Buyer Indemnitees shall be reduced by any insurance proceeds or other third party recoveries payment or recoupment actually received, realized or retained by the Indemnified Party as a result of the events giving rise to an Action for indemnification), net of the actual reduction in income Tax liability of the Indemnified Party (or the Affiliated Group of which it is a member) occasioned by such loss or damage, but including any costs, fees or expenses reasonably incurred by the Indemnified Party. Upon the request of the Indemnifying Party, the Indemnified Party shall provide the Indemnifying Party with information sufficient to allow the Indemnifying Party to calculate the amount of the indemnity payment in accordance with this Section 6.5. If and to the extent that an Indemnifying Party has made an indemnification payment to an Indemnified Party pursuant to this Section 6.5 with respect to a Loss and the Indemnified Party has been and will be fully indemnified and compensated for such Loss from a Party other than the Indemnifying Party, the Indemnified Party shall pay to the Indemnifying Party: (i) the amount of any payment irrevocably received by such Indemnitees in connection the Indemnified Party or any Affiliate thereof from a party other than the Indemnifying Party with the breach, failure or other event which gave rise respect to such Loss Loss, and (net ii) the amount of any costs incurred by such Indemnitees in connection with the collection of such insurance proceeds or other third party recoveries). (5) Notwithstanding cash receipts actually received by the foregoingIndemnified Party or any of the Indemnified Party’s Affiliates with respect to such Loss or the matter that gave rise to the Loss, neither the Cap nor the Basket shall apply to any Losses arising out of, or related to, such amounts described in subparagraphs (i) any breach of any representation or warranty contained in Sections 4.1 (Due Organization and Qualification), 4.3 (Authority to Execute), 4.11 (Judgments and Proceedings), 4.13 (Contracts), 4.17 (Intangibles), 4.18 (Title), 4.24 (No Broker), 5.1 (Organization), 5.2 (Authorization) or 5.5 (No Broker), (ii) above shall be net of reasonable attorneys’ fees and other collection costs related to such payments and recoveries, and no right of subrogation shall accrue to any breach of any insurer hereunder. In no event shall an Indemnified Party be required to pay over, under this Section 6.5, an amount in the aggregate in excess of the covenants indemnity payment previously payable to be performed under this Agreement by any of the parties hereto after the Closing, or (iii) the Excluded Liabilities. (6) Seller shall only be entitled to indemnification for Losses resulting from a breach by Buyer of the representations or warranties set forth in Section 5.6 of this Agreement Indemnifying Party with respect to any Buyer Stock which is issued as Earn-Out Considerationthe Losses in issue.