Common use of Limitation on Purchaser’s Indemnification Obligations Clause in Contracts

Limitation on Purchaser’s Indemnification Obligations. Purchaser’s obligations pursuant to the provisions of Section 10.4 are subject to the following limitations: (a) Seller Indemnitees shall not be entitled to indemnification under Section 10.4(a) on any individual claim unless and until the Damages associated with such claim exceed $25,000, at which point an indemnification claim can be made for the entire amount of such individual claim, subject to the other terms of this Article X. Any individual claim that does not have Damages in excess of $25,000 will not count toward the calculation of the Deductible. (b) Seller Indemnitees will not be entitled to recover under Section 10.4(a) until the total amount of Damages that Seller Indemnitees would recover under Section 10.4(a), but for this Section 10.5(b), exceeds the Deductible. Once the total amount of Damages that Seller Indemnitees would recover under Section 10.4(a), but for this Section 10.5(b), exceeds the Deductible, Seller Indemnitees will be entitled to recover only the amount of such Damages in excess of the Deductible. (c) Seller Indemnitees will not be entitled to recover Damages pursuant to Section 10.4(a), in the case of any claim, for any amount of Damages, when aggregated with any amounts previously paid or to be paid pursuant to this Article X, in excess of $100,000,000. (d) The amount of any recovery by Seller Indemnitees pursuant to Section 10.4 will be reduced by the present value of any refund of Taxes paid or reduction in the amount of Taxes due, reflecting an appropriate discount for the timing and receipt or realization of such refund or reduction resulting from the incurrence of Damages for which Seller Indemnitees are entitled to recover from Purchaser pursuant to Section 10.4, computed at the highest marginal tax rates applicable to the recipient of such refund of or reduction in Taxes. (e) The amount of any recovery by Seller Indemnitees pursuant to Section 10.4 will be reduced by the amounts recovered by Seller Indemnitees under any applicable insurance policies recovered by Seller Indemnitees as a result of the facts that entitled the Seller Indemnitees to recover from Purchaser pursuant to Section 10.4. Each Seller Indemnitee agrees to make all claims and to collect any amounts recoverable under applicable insurance policies and to seek recovery under all applicable insurance policies for all Damages to the extent such Damages are covered by any insurance policy of such Seller Indemnitee. In the event that an insurance is made by any Seller Indemnitee with respect to any Damages for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to Purchaser. (f) In no event will Seller be entitled to indemnification for the same Damages from more than one source. (g) For purposes of calculating Damages hereunder arising out of, relating to or resulting from a breach or inaccuracy of any representation or warranty (but not for purposes of determining the existence of any breach (including any inaccuracy) of any representation, warranty, covenant or agreement), any materiality or material adverse effect qualifications in the representations or warranties shall be ignored. (h) Notwithstanding the above, the limitations set forth in this Section 10.4 shall not apply with respect to claims or Damages arising from Purchaser’s fraud or intentional misrepresentation in connection with the transactions contemplated by this Agreement or any other Transaction Document.

Limitation on Purchaser’s Indemnification Obligations. Purchaser’s obligations pursuant to the provisions of Section 10.4 8.5 are subject to the following limitations: (a) Seller Indemnitees shall not be entitled to indemnification recover under Section 10.4(a8.5(a) unless a claim has been asserted by written notice delivered to Purchaser on any individual claim unless or before September 15, 2011 (except with respect to those representations and until warranties which survive beyond September 15, 2011, for which written notice must be delivered prior to the Damages associated expiration of the survival period of such representation or warranty), specifying the details of the alleged misrepresentation or breach of warranty with such claim exceed $25,000reasonable particularity, at which point an indemnification claim can be made for the entire sections of this Agreement alleged to have been breached, the amount of such individual claimDamages claimed, subject to and all the other terms relevant facts and circumstances of this Article X. Any individual claim that does not have Damages in excess of $25,000 will not count toward the calculation of the Deductiblewhich Seller has knowledge. (b) The aggregate liability of Purchaser for Damages with respect to any indemnification claim of Seller Indemnitees will under Section 8.5 shall not exceed the Purchase Price set forth in Section 1.2. (c) Seller Indemnitees shall not be entitled to recover under Section 10.4(a8.5 (i) until with respect to consequential damages of any kind, indirect, special, exemplary and punitive damages, in each case unless arising from a Third Party Claim; or (ii) to the total amount of Damages that Seller Indemnitees would recover under Section 10.4(a), but for this Section 10.5(b), exceeds extent the Deductible. Once the total amount of Damages that Seller Indemnitees would recover under Section 10.4(a), but for this Section 10.5(b), exceeds the Deductible, Seller Indemnitees will be entitled to recover only the amount of such Damages in excess subject matter of the Deductible. claim is covered by insurance held by Seller (c) Seller Indemnitees will not be entitled to recover Damages pursuant to Section 10.4(anet of actual out-of-pocket expenses incurred in obtaining such amounts, any co-payment, retrospective premium adjustment and increased premiums resulting from such claim), in the case of any claim, for any amount of Damages, when aggregated with any amounts previously paid or to be paid pursuant to this Article X, in excess of $100,000,000.; and (d) The amount of any recovery by Seller Indemnitees pursuant to Section 10.4 will 8.5 shall be reduced by the present value of any refund of Taxes paid or reduction in the amount of Taxes dueforeign, reflecting an appropriate discount for the timing federal, state and/or local Tax benefits inuring to, and receipt or realization of such refund or reduction resulting from the incurrence of Damages for which actually realized by, Seller Indemnitees are entitled to recover from Purchaser pursuant to Section 10.4and increased by any foreign, computed at the highest marginal tax rates applicable to the recipient of such refund of or reduction in Taxes. (e) The amount of any recovery by Seller Indemnitees pursuant to Section 10.4 will be reduced by the amounts recovered by Seller Indemnitees under any applicable insurance policies recovered federal, state and/or local Tax cost actually incurred by Seller Indemnitees as a result of the state of facts that which entitled the Seller Indemnitees to recover from Purchaser pursuant to Section 10.4. Each Seller Indemnitee agrees to make all claims and to collect any amounts recoverable under applicable insurance policies and to seek recovery under all applicable insurance policies for all Damages to the extent such Damages are covered by any insurance policy of such Seller Indemnitee8.5. In the event that an insurance is made any foreign, federal, state and/or local Tax benefits are actually realized by any the Seller Indemnitee Indemnitees with respect to any Damages recovery pursuant to Section 8.5 for which any such Person has Seller Indemnitees have previously been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will such Tax benefits shall be made promptly to Purchaser. (f) . In no the event will that any foreign, federal, state and/or local Tax cost is actually incurred by Seller be entitled to indemnification for the same Damages from more than one source. (g) For purposes of calculating Damages hereunder arising out of, relating to or resulting from a breach or inaccuracy of any representation or warranty (but not for purposes of determining the existence of any breach (including any inaccuracy) of any representation, warranty, covenant or agreement), any materiality or material adverse effect qualifications in the representations or warranties shall be ignored. (h) Notwithstanding the above, the limitations set forth in this Section 10.4 shall not apply Indemnitees with respect to claims or Damages arising from Purchaser’s fraud or intentional misrepresentation in connection with any recovery payment pursuant to Section 8.5 for which such Seller Indemnitees have previously been indemnified hereunder, then Purchaser shall promptly pay the transactions contemplated by this Agreement or any other Transaction Documentamount of such Tax cost to Seller.

Limitation on Purchaser’s Indemnification Obligations. Purchaser’s obligations pursuant to the provisions of Section 10.4 7.5 are subject to the following limitations: (a) The Seller Indemnitees shall not be entitled to indemnification recover under Section 10.4(a7.5(a) on with respect to any individual claim (or group of related claims arising out of the same incident or occurrence) unless and until the Damages associated with such claim (or group of related claims arising out of the same incident or occurrence) exceed $25,00020,000, at which point an indemnification claim can be made for and then may recover only to the entire amount extent of such individual claim, subject excess with respect to such claim (or group of related claims arising out of the other terms of this Article X. same incident or occurrence). Any individual claim that does not have involve Damages in excess of $25,000 will 20,000 shall not count toward the calculation of the Purchaser Deductible. (b) The Seller Indemnitees will shall not be entitled to recover under Section 10.4(a7.5(a) until the total amount of Damages that Seller Indemnitees Purchaser would recover under Section 10.4(a)7.5, but for this Section 10.5(b7.6(b), exceeds one percent (1%) of the Purchase Price (the “Purchaser Deductible. Once ”), and then only for the total amount of Damages excess over the Purchaser Deductible (provided that Seller Indemnitees would recover the Purchaser Deductible shall not apply to recovery under Section 10.4(a7.5(a) for breaches of Sections 2.2(b) or 2.2(f), but for this Section 10.5(b), exceeds the Deductible, Seller Indemnitees will be entitled to recover only the amount of such Damages in excess of the Deductible. (c) The Seller Indemnitees will shall not be entitled to recover Damages pursuant to under Section 10.4(a), 7.5 in the case respect of any claim for indemnification unless such claim has been asserted by written notice, specifying the details of the alleged misrepresentation or breach of warranty or covenant with reasonable specificity, the sections of this Agreement alleged to have been breached, and a good faith estimate of the Damages claimed, delivered to Purchaser on or prior to the expiration of any applicable Survival Period for such claim, for any amount of Damages, when aggregated with any amounts previously paid or to be paid pursuant to this Article X, in excess of $100,000,000. (d) The Seller Indemnitees shall not be entitled to recover under Section 7.5: (i) WITH RESPECT TO CONSEQUENTIAL DAMAGES OF ANY KIND, DAMAGES CONSISTING OF BUSINESS INTERRUPTION OR LOST PROFITS (REGARDLESS OF THE CHARACTERIZATION THEREOF), DAMAGES FOR DIMINUTION IN VALUE OF THE BUSINESS, DAMAGES COMPUTED ON A MULTIPLE OF EARNINGS, BOOK VALUE OR ANY SIMILAR BASIS WHICH MAY HAVE BEEN USED IN ARRIVING AT THE PURCHASE PRICE, AND INDIRECT, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES; and (ii) with respect to any matter if (A) the Net Working Capital, Cash and Cash Equivalents or Indebtedness set forth in the Closing Purchase Price Statement was or could have been adjusted for such matter and Seller did not dispute the amount of any recovery by Seller Indemnitees the adjustment in the Closing Purchase Price Statement or the dispute as to the amount of the adjustment was resolved pursuant to Section 10.4 will be reduced by 1.7, or (B) the present value of any refund of Taxes paid Net Working Capital, Cash and Cash Equivalents or reduction Indebtedness set forth in the amount Closing Purchase Price Statement was not adjusted for such matter, Seller disputed such adjustment, and the dispute was resolved in favor of Taxes due, reflecting an appropriate discount for the timing and receipt or realization of such refund or reduction resulting from the incurrence of Damages for which Seller Indemnitees are entitled to recover from Purchaser pursuant to Section 10.4, computed at the highest marginal tax rates applicable to the recipient of such refund of or reduction in Taxes1.7. (e) The amount of any recovery by Seller Indemnitees pursuant to Section 10.4 will be reduced by the amounts recovered by Seller Indemnitees under any applicable insurance policies recovered by Seller Indemnitees as a result of the facts that entitled the Seller Indemnitees to recover from Purchaser pursuant to Section 10.4. Each Seller Indemnitee agrees to make all claims and to collect any amounts recoverable under applicable insurance policies and to seek recovery under all applicable insurance policies for all Damages to the extent such Damages are covered by any insurance policy of such Seller Indemnitee. In the event that an insurance is made by any Seller Indemnitee with respect to any Damages for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to Purchaser. (f) In no event will Seller be entitled to indemnification for the same Damages from more than one source. (g) For purposes of calculating Damages hereunder arising out of, relating to or resulting from a breach or inaccuracy of any representation or warranty (but not for purposes of determining the existence of any breach (including any inaccuracy) of any representation, warranty, covenant or agreement), any materiality or material adverse effect qualifications in the representations or warranties shall be ignored. (h) Notwithstanding the above, the limitations set forth in this Section 10.4 shall not apply with respect to claims or Damages arising from Purchaser’s fraud or intentional misrepresentation in connection with the transactions contemplated by this Agreement or any other Transaction Document.