Common use of Limitations of Indemnity Clause in Contracts

Limitations of Indemnity. Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause exceeds $125,000 (the “Deductible”), in which event Sellers shall be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i); and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18-month anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.7(b) and Section 5.1 (Title to Stock) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior to the three-year anniversary of the Closing Date. In no event shall the amount payable under Section 9.1(a)(i) exceed $4,000,000 (the “Cap”); provided, however, that the Cap for a breach of Section 4.7(b) and Section 5.1 (Title to Stock), shall be 100% of the Purchase Price. Notwithstanding anything herein to the contrary, the Deductible shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.17 (Federal Health Care Program and Third Party Payor Participation), Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 (Environmental Matters) or Section 4.34 (Brokers; Certain Expenses), and neither the Deductible nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to the contrary, in no event shall the amount payable with respect to claims for indemnification related to Excluded Liabilities (other than claims with respect to Section 4.14 (Taxes) and fraud, for which the Cap shall not apply) exceed $7,500,000, in the aggregate (the “Aggregate Cap”).

Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i8.1(a)(i) unless and until the aggregate amount otherwise payable in by Seller or the absence of this clause Shareholders exceeds $125,000 * (the “Deductible”), in which event Sellers Seller or the Shareholders shall only be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i)such Deductible; and (iia) no claim for indemnification under Section 9.1(a)(i8.1(a)(i) shall first be asserted after the 18-month two year anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.7(b) 4.1 (Organization, Qualification and Section 5.1 Authority), 4.7 (Title to StockTransferred Assets), 4.9 (Environmental and Safety Matters), 4.12 (Seller’s Employee Benefits), 4.17 (Tax Returns; Taxes), or 4.21 (Legal and Other Compliance) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior . Subject to the three-year anniversary of the Closing Date. In following sentence, in no event shall the amount payable under Section 9.1(a)(i8.1(a)(i) exceed $4,000,000 the aggregate of the * payable to Seller under this Agreement (the “Cap”); provided, however, that the Cap for a breach of Section 4.7(b) and Section 5.1 (Title to Stock), shall be 100% of the Purchase Price. Notwithstanding anything herein to the contrary, the Deductible shall not apply to a claim for (i) breach of any representation and warranty set forth in Section 4.3 Sections 4.1 (Authorization; Binding ObligationsOrganization, Qualification and Authority), Section 4.13 4.9 (Employee Benefit Plans; ERISAEnvironmental and Safety Matters), Section 4.14 4.12 (TaxesSeller’s Employee Benefits), Section 4.17 (Federal Health Care Program and Third Party Payor Participation), Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 (Environmental Matters) or Section 4.34 4.14 (Brokers; Certain Expenses), 4.17 (Tax Returns; Taxes), or 4.21 (Legal and neither Other Compliance) and (ii) Losses arising from or relating to Excluded Warranty Work. Neither the Deductible nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to the contrary, in no event shall the amount payable with respect to claims for indemnification related to Excluded Liabilities (other than claims with respect to Section 4.14 (Taxes) and fraud, for which the Cap shall not apply) exceed $7,500,000, in the aggregate (the “Aggregate Cap”).

Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause exceeds $125,000 200,000 (the “Deductible”), in which event Sellers shall only be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i)such Deductible; and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18-month two year anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.3 (Authorization; Binding Obligations), Sections 4.7(b) and Section 5.1 (Title to Stock), or Tax matters under Section 4.14 (Taxes) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; and provided further, further that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), related to a breach of Section 4.17 (Federal Health Care Program and Third-Third Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), or Section 4.19 (Compliance with Health Care LawsMedicare, Medicaid; Company’s Legal and Billing Compliance) may be asserted made by Buyer at any time prior to the three-year anniversary of date which is 36 months after the Closing Date; and provided further that a claim for indemnification related to a breach of Sections 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA) or Section 4.23 (Environmental Matters) may be made by Buyer at any time prior to the first to occur of the date which is 48 months after the Closing Date or the date on which the statute of limitations applicable thereto expires. In no event shall the amount payable under Section 9.1(a)(i9.1(a) exceed a total amount of $4,000,000 3,850,000 (the “Cap”); provided, however, that and in no event shall the Cap for a breach of amount payable under Section 4.7(b9.1(a) and Section 5.1 (Title by any Seller exceed an amount equal to Stock), shall be 100% such Seller’s Pro Rata Share of the Purchase PriceCap. Notwithstanding anything herein to the contrary, (1) the Deductible shall not apply to a claim for breach of any representation and warranty set forth in Section Sections 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), or Section 4.34 (Brokers; Certain Expenses), (2) a total of up to $50,000 of the Deductible shall be applied against any claim of a breach of any representation and warranty set forth in Section 4.17 (Federal Health Care Program and Third Party Payor Participation), and Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 (Environmental Matters) or Section 4.34 (Brokers; Certain Expenses)with the remaining amounts of such claims not subject to the Deductible, and (3) neither the Deductible nor the Cap shall apply to a claim in the event of actual fraud. (b) Claims for fraud or any Excluded Liability. Notwithstanding anything herein indemnification by Buyer under this Article IX shall be reduced to the contraryextent of any insurance proceeds received by or paid on behalf of the Indemnitee from any insurance policy in effect immediately prior to the Closing (the “Pre-Closing Insurance Policies”) (and for clarification, in no event shall not from insurance policies bound by Buyer following the amount payable Closing with respect to the Company) covering the occurrence(s) that is or are the basis for such claims. In addition, where applicable, Buyer agrees to, and shall cause the Company to, submit all claims covered by the Pre-Closing Insurance Policies to the respective insurance carrier and pursue recovery from the insurers under such Pre-Closing Insurance Policies in accordance with the terms of such policies. (c) An Indemnitor’s (as defined in Section 9.3) liability shall be limited to the direct Losses suffered or incurred by the Indemnitee (as defined in Section 9.3), and an Indemnitor shall not be liable for any special, incidental, indirect, or consequential Losses of any kind (including any lost or anticipated profits) suffered or incurred by the Indemnitee, regardless of the form of claim or action and whether based on contract, warranty, tort (including negligence), strict liability, or other theory of liability, and even if the Indemnitor has been advised or otherwise made aware of the possibility of such Losses; provided that this provision shall not limit the liability of an Indemnitor for any consequential damages actually paid by an Indemnitee to a Third Party. (d) The liability of Sellers under the indemnification provisions of this Article IX shall be recovered first from the Escrow Fund other than for claims for indemnification breach of any representations and warranties set forth in Article V and for claims related to Excluded Liabilities (other than claims with respect to breach of the Section 4.14 (Taxes) and fraud7.6, for which only the Cap breaching Seller shall not applybe directly liable. (e) exceed $7,500,000, in Buyer shall make commercially reasonable efforts to mitigate the aggregate (the “Aggregate Cap”)amount of Losses.

Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause exceeds $125,000 75,000 (the “Deductible”), in which event Sellers shall only be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i)such Deductible; and (iia) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18-month two year anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.3 (Authorization; Binding Obligations), 4.7(b) and Section 5.1 (Title to StockInterests) and 5.1 (Ownership of Interests), 4.13 (Employee Benefit Plans; ERISA), 4.14 (Taxes), 4.17 (Reimbursement Approvals), 4.18 (Health Care Regulatory Litigation), 4.19 (Medicare, Medicaid; Company’s Legal and Billing Compliance), 4.23 (Environmental Matters) and 4.35 (Compliance with Laws) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior to the three-year anniversary of the Closing Date. In no event shall the amount payable under Section 9.1(a)(i) exceed $4,000,000 the Purchase Price payable to Sellers (the “Cap”); provided, however, that and in no event shall the Cap for a breach of amount payable under Section 4.7(b9.1(a)(i) and Section 5.1 (Title by any Seller exceed an amount equal to Stock), shall be 100% such Seller’s Pro Rata Share of the Purchase PriceCap. Notwithstanding anything herein to the contrary, the Deductible shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.17 (Federal Health Care Program and Third Party Payor ParticipationReimbursement Approvals), Section 4.19 (Compliance with Health Care Medicare, Medicaid; Company’s Legal and Other LawsBilling Compliance), Section 4.22 4.23 (Environmental Matters) or Section 4.34 (Brokers; Certain Expenses), ) and neither the Deductible nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to fraud. (b) The liability of Sellers under the contrary, in no event indemnification provisions of this Article IX shall be recovered first from the amount payable with respect to Escrow Fund other than for claims for indemnification related to Excluded Liabilities (other than claims with respect to breach of any representations and warranties set forth in Article V and Section 4.14 (Taxes) and fraud, for which the Cap shall not apply) exceed $7,500,000, in the aggregate (the “Aggregate Cap”)7.6.

Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause by Sellers exceeds $125,000 * (the “Deductible”), in which event Sellers shall only be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i)such Deductible; and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18-month two year anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.3 (Authorization; Binding Obligations), 4.7(b) and Section 5.1 (Title to Stock) and 5.1 (Ownership of Capital Stock), 4.13 (Employee Benefit Plans; ERISA), 4.14 (Taxes), 4.20 (Environmental Matters) and 4.31 (Compliance with Laws) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior . Subject to the three-year anniversary of the Closing Date. In following sentence, in no event shall the amount payable under Section 9.1(a)(i) exceed $4,000,000 the aggregate of the * payable to Sellers under this Agreement (the “Cap”); provided, however, that and in no event shall the Cap for a breach of amount payable under Section 4.7(b9.1(a)(i) and Section 5.1 (Title by any Seller exceed an amount equal to Stock), shall be 100% such Seller’s Pro Rata Share of the Purchase PriceCap. Notwithstanding anything herein to the contrary, the Deductible shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.17 (Federal Health Care Program and Third Party Payor Participation), Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 4.20 (Environmental Matters) or Section 4.34 4.30 (Brokers; Certain Expenses), ) and neither the Deductible nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to fraud. (b) The liability of Sellers under the contrary, in no event indemnification provisions of this Article IX shall be recovered first from the amount payable with respect to Escrow Fund other than for claims for indemnification related to Excluded Liabilities (other than claims with respect to breach of any representations and warranties set forth in Article V and Section 4.14 (Taxes) and fraud, for which the Cap shall not apply) exceed $7,500,000, in the aggregate (the “Aggregate Cap”)7.2.

Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause exceeds $125,000 150,000 (the “DeductibleBasket”), in which event Sellers shall be liable for all amounts in excess of the Deductible (including such $150,000) payable under Section 9.1(a)(i); and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18two-month year anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.7(bSection 4.3 (Authorization; Binding Obligations), Section 4.7(c) and Section 5.1 5.2 (Title to Stock), and Section 4.14 (Taxes) may be asserted at any time prior to the expiration of the statute of limitations applicable theretotime; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), ) and Section 4.34 (Compliance with Laws)) may be asserted at any time prior to the three-year anniversary of the Closing Date; and provided, further, that a claim for indemnification under Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior to the threefour-year anniversary of the Closing Date. In no event shall the amount payable under Section 9.1(a)(i) exceed $4,000,000 3,000,000 (the “Cap”); provided, however, that the Cap for a breach of Section 4.7(b4.7(c) and Section 5.1 5.2 (Title to Stock), ) shall be 100% of the Purchase Price. Notwithstanding anything herein to the contrary, the Deductible Basket shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.17 (Federal Health Care Program and Third Third-Party Payor Participation), Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 (Environmental Matters) or Section 4.34 (Brokers; Certain Expenses), ) and neither the Deductible Basket nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to the contrary, in no event shall the amount payable with respect to claims for indemnification for a breach of Section 4.14 (Taxes), Section 7.5 (Tax Matters) or related to Excluded Liabilities (other than claims with respect to Section 4.14 items (Taxesvii) and fraud, (x) for which the Cap shall not apply) exceed $7,500,00012,000,000, in the aggregate (the “Aggregate Cap”).