Common use of Limitations on Indemnification by Buyer Clause in Contracts

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification Payments pursuant to Section 7.5 shall be payable limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder. (b) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller Indemnified Party in or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect of to any breach of any representation representation, warranty or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification covenant with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller Indemnified Party with respect to any the use of intellectual property of third parties on vehicles, signage and other claims arising under provisions of Section 6.3similar usage on the Purchased Assets before or after the Closing.

Limitations on Indemnification by Buyer. (i) The right of Buyer shall not be obligated to indemnify the Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to and Fearxxxxxxx xxx Seller Losses arising from the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach inaccuracy of any representation or warranty made by the Buyer in this Agreement, herein or in any certificate, schedule certificate or exhibit other document delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), hereto unless and until the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full aggregate amount of such claims Seller Losses exceeds $25,000, in which case the Buyer shall be recoverable obligated to indemnify the Seller and Fearxxxxxxx xxx the amount of such Seller Losses aggregating in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Dateexcess of $25,000; provided, however, that the limitation limitations of this clause (i) shall not apply to claims for indemnification arising out of or in connection with or based upon the inaccuracy or breach of the Buyer's representations set forth in Section 4.4. (ii) The Buyer's aggregate liability for indemnification for all provisions under this Agreement shall under no circumstances exceed the Asset Acquisition Consideration received by Fearxxxxxxx xxxer this Agreement, valued as of the Measurement Date. (iii) A claim for breach of warranty, representation or covenant may not be made under this Agreement and the Buyer shall not be liable for indemnification under this section, unless notice of the Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date Loss on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute such claim or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto is based is given in writing or through telex or telecopier by the Seller or Fearxxxxxxx xx the Buyer reasonably promptly after the Seller or Fearxxxxxxx, xx the case may be, shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice become aware of the applicable claim is given; and (c) The limitations herein Seller Loss, but in any event, with respect to claims of Seller Warranty Claims Loss arising under Sections 9.3(c)(i) and (ii), within one year after the Closing Date. (iv) Subject to the limitations on indemnification set forth in Sections (i)-(iii) above, if any event shall not limit occur which would otherwise entitle the rights Seller and Fearxxxxxxx xx assert a claim for indemnification hereunder, no Seller Losses shall be deemed to have been sustained by the Seller or Fearxxxxxxx, xx the case may be, to the extent of (i) any tax savings realized by the Seller Indemnified Party or Fearxxxxxxx xxxh respect thereto or (ii) any net proceeds received by the Seller or Fearxxxxxxx xxxm any insurance policy with respect thereto, to any other claims arising under provisions of Section 6.3which policies the Seller and Fearxxxxxxx xxxll resort prior to asserting a claim for indemnification hereunder.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification Notwithstanding any provision to the contrary contained in this Agreement, Buyer shall be payable under no liability to indemnify the Seller Indemnified Parties under Section 11.1 and no claim under Section 11.1 shall: (i) be made to the extent that such claim relates to a liability of the Seller Indemnified Parties arising out of or relating to any act, omission, event or occurrence connected with: (A) the use, ownership or operation of any of the Facilities prior to the Closing Date, or (B) the use, operation or ownership of any of the Purchased Assets prior to the Closing Date, other than as specifically included in the Assumed Liabilities; (ii) be made to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Buyer pursuant to Section 11.3; and (iii) with respect to matters encompassed by Section 11.1(i), accrue to the Seller Indemnified Party Parties unless and only to the extent that (A) the liability of Buyer in respect of any breach single claim exceeds Ten Thousand Dollars ($10,000) and (B) the total liability of any representation or warranty made by Buyer in this Agreement, or respect of all claims in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties the aggregate exceeds Five Hundred Thousand Dollars (collectively, $500,000) (the "Seller Warranty ClaimsAggregate Amount"), unless in which event the Seller Indemnified Parties shall be entitled to seek indemnification under Section 11.1 (i) for all claims only in an amount of Seller Losses which exceed the Seller Aggregate Amount. (b) Subject to the limitations set forth in Section 11.2(a), the total liability of all claims Buyer for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 11.1(i), in the aggregate, whereupon the full amount of such claims shall be recoverable limited to an amount equal to Fifty Million Dollars ($50,000,000). Notwithstanding anything to the contrary, the limitations contained in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (iSection 11.2(b) shall not apply to Seller Warranty Claims involving any indemnification claims arising under Section 11.1(i) as a result of the intentional misrepresentation or fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. Buyer. (c) If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Buyer hereunder, Seller shall have given notice of use its commercially reasonable best efforts to recover such facts to Buyer, then sum from such third party and any sum recovered will reduce the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice amount of the applicable claim is given; and (c) The limitations herein with respect claim. If Buyer pays to Seller Warranty Claims shall not limit the rights of any a Seller Indemnified Party with an amount in respect of a claim, and the Seller Indemnified Party subsequently recovers from a thirty party a sum which is referable to any other claims arising under provisions that claim, Seller shall cause the Seller Indemnified Party to promptly repay to Buyer so much of Section 6.3the amount paid to it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller and the Seller Indemnified Party in obtaining payment in respect of that claim and in recovering that sum from the third party.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall Buyer will have no Liability pursuant to Section 7.3(a)(i) (i) unless and until the Seller Indemnitees have suffered aggregate Adverse Consequences by reason of all such breaches indemnifiable pursuant to Section 7.3(a)(i) in excess of the Threshold, after which point Buyer will be payable obligated to any indemnify the Seller Indemnitees from and against all indemnifiable Adverse Consequences from and including [****] (for the avoidance of doubt, Adverse Consequences will not apply towards the Threshold if they are claimed by a Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreementany provision other than Section 7.3(a)(i)) and (ii) for any individual claim or series of related claims, or any third-party claim, action or proceeding asserted or instituted or unless and until the Seller Indemnitees have suffered aggregate indemnifiable Adverse Consequences arising out of any matter such claim or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total series of all related claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b7.3(a)(i) Indemnification with respect to Seller Warranty Claims such representations and warranties in excess of the Eligible Claim Threshold (provided, that, any claim or series of related claims not exceeding such amount shall expire on not be aggregated to count towards the Indemnification Cut-Off DateThreshold and shall not be indemnifiable under Section 7.3(a)(i)); provided, however, that the foregoing limitations shall not apply with respect to any breach of any of the Buyer Fundamental Representations or any claim based on Fraud. (b) The aggregate maximum Liability of Buyer pursuant to Section 7.3(a)(i) shall not exceed the Cap; provided, however, that the foregoing limitation shall not apply with respect to any breach of any of the Buyer Fundamental Representations. Buyer’s aggregate maximum Liability pursuant to Section 7.3(a)(i), with respect to inaccuracies in or breaches of the Buyer Fundamental Representations, and Section 7.3(a)(iii), collectively, will not exceed an aggregate amount, which, if added to all other amounts paid as indemnification payments by Buyer under Section 7.3(a)(i) and Section 7.3(a)(iii), collectively, is equal to $[****]. Notwithstanding the foregoing, the limitations set forth in this clause (iSection 7.5(b) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3claim based on Fraud.

Limitations on Indemnification by Buyer. (a) The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 8.4(a) shall be subject to the following provisionsprovision: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (bi) Indemnification with respect to all Seller Warranty Indemnifiable Claims shall expire on twelve (12) months after the Indemnification Cut-Off DateClosing; provided, however, that the limitation limitations of this clause (i) shall not apply to to: (A) Seller Warranty Indemnifiable Claims (1) involving or arising from fraud or intentional misrepresentation, misrepresentation or (2) arising under Sections 8.4(b) or 8.4(c) for which the period for making such claims shall expire on the date on which is three (3) months after the termination of the applicable statute of limitations limitations, including any extension thereof, relating thereto terminates. thereto; or (B) Seller Indemnifiable Claims arising under Section 8.4(a) if the underlying claim results from a breach of the representations and warranties in Section 3.1(b) for which the period for making such claims shall be indefinite. (ii) If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Indemnifiable Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given. (iii) No indemnification shall be payable with respect to Seller Indemnifiable Claims not involving fraud or intentional misrepresentation if such Seller Indemnifiable Claims arise solely under Section 8.4(a) unless the total of all Seller Indemnifiable Claims shall exceed $500,000 in the aggregate (the "Buyer Basket"), whereupon the amount of such claim in excess of $500,000 shall be recovered in accordance with the terms hereof; andprovided, however, that Seller Indemnifiable Claims arising under Sections 8.4(b), 5.14 and 8.4(c) shall not be subject to such Buyer Basket and provided further that the Buyer Basket shall not be applicable to amounts recoverable under Section 8.4(a) if the underlying claim arises as a result of a breach of the representations and warranties in Section 3.1(b). (iv) Buyer shall not be obligated to indemnify Seller Indemnified Parties in respect of Seller Indemnifiable Claims not involving fraud or intentional misrepresentation if such Seller Indemnifiable Claims arise solely under Sections 8.4(a) or 5.14(a) after the cumulative amount of all Seller Indemnifiable Claims exceeds $20,000,000 (the "Maximum Buyer Liability Amount"). The limitations on liability of the Maximum Buyer Liability Amount shall not be applicable and shall be calculated exclusive of any recovery under (A) Seller Indemnifiable Claims arising under Sections 8.4(b) (including, without limitation, where the underlying claim results from a breach of the covenants in Section 5.14(b), (c), (d), (e), (f) or (g) but not including Section 5.14(a)) or 8.4(c) or (B) amounts recoverable under Section 8.4(a) if the underlying claim arises as a result of breach of the representations and warranties in Section 3.1(b). (v) Any indemnification payable with respect to a Seller Indemnifiable Claim shall be (A) net of any insurance proceeds actually received by Seller with respect to such Loss and (B) net of any tax benefits actually realized (through receipt of a refund or actual reduction of tax liability) as a result of (i.e., which would not have been received or credited but for) the Loss to which such indemnification payment relates. (b) Notwithstanding anything to the contrary in the foregoing section, Buyer shall in no event be liable to BIB or any Stockholder for any consequential, special or indirect damages suffered by BIB or any Stockholder under any provision of this Agreement, even if advised of the possibility of such. (c) The limitations herein with respect Except to the extent any Losses are incurred by the Seller Warranty Claims shall not limit Indemnified Party resulting from any fraudulent or intentional misrepresentation by any of the rights Buyer (prior to the Closing Date), the sole and exclusive monetary remedy of any Seller Indemnified Party with respect to any other and all claims relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in this Article 8. In furtherance of the foregoing, each Seller Indemnified Party hereby waives, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action it may have against Buyer arising under provisions or based upon any Law (including, without limitation, any such rights, claims or causes of Section 6.3action arising under or based upon common law or otherwise).

Limitations on Indemnification by Buyer. The right Notwithstanding the foregoing Section 5.3, the rights of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), Section 5.3(a) unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements 5.3(a) shall exceed $50,000 in the aggregate, whereupon Seller shall be entitled to recover the full aggregate amount of such claims shall be recoverable in accordance with the terms hereof;, and not just those claims in excess of the foregoing amount. Individual claims involving Damages of less than $2,000 shall not be indemnified and shall not be applied in determining whether the aggregate Damages exceed the foregoing threshold. No such limitations shall apply to claims made by Seller with respect to Sections 5.3(b), (c), (d) and (e) of this Agreement. (b) Indemnification No indemnification shall be payable to Seller pursuant to Section 5.3(a) for amounts in excess of 70% of the Purchase Price in the aggregate. No such limitation shall apply to claims made by Seller with respect to Sections 5.3(b), (c), (d) and (e) of this Agreement. (c) No indemnification shall be payable to Seller Warranty Claims shall expire on pursuant to Section 5.3(a) with respect to any claim asserted by Seller after the Indemnification Cut-Off Termination Date; provided, however, that the limitation of this clause (i) foregoing shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to resulting from any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice breach of the applicable claim is given; and (c) The limitations herein representations and warranties contained in Sections 3.1 and 3.2, with respect to which Seller Warranty Claims shall not limit the rights of any be entitled to assert claims without limitation as to time. (d) No indemnification shall be payable to Seller Indemnified Party pursuant to Section 5.3(c) with respect to any other claims arising under provisions of Section 6.3claim asserted by Seller after the Termination Date. Seller shall be entitled to indemnification pursuant to Sections 5.3(b), (d) and (e) without limitation as to time.

Limitations on Indemnification by Buyer. The Notwithstanding the --------------------------------------- foregoing, the right of Seller --------------------------------------- Equityholder Indemnified Parties to indemnification under Section 6.3 9.03 shall be subject to the following provisions: (a) No Subject to the exceptions set forth in Subsection 9.04(d), the Buyer's aggregate liability for indemnification under this Agreement shall not exceed an amount equal to the Cap. (b) Subject to the exceptions set forth in Subsection 9.04(d), no indemnification shall be payable pursuant to Subsection 9.03(b) above to any Seller Equityholder Indemnified Party Party, unless the cumulative amount of all claims for indemnification pursuant to Section 9.03 ("Equityholder Claims") shall exceed ------------------- the Deductible, whereupon only the amount of such claims in respect excess of such Deductible shall be recoverable by the Equityholder Indemnified Parties. For the sole purpose of calculating the amount of Equityholder Claims arising out of any breach of any representation or warranty made by Buyer or Sub, references to material adverse effect or materiality (or other correlative terms) shall be disregarded. (c) Subject to the exceptions set forth in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"Subsection 9.04(d), unless the total of all claims for no indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification payable to a Equityholder Indemnified Party with respect to Seller Warranty Claims shall expire on claims under Subsection 9.03(b) which are asserted after the Indemnification Cut-Off Expiration Date; provided, however, provided that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud if on or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration Expiration Date a specific -------- state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable a claim for indemnification under Subsection 9.03(b) and a Seller Equityholder Indemnified Party shall have given written notice to Buyer of such facts to Buyerknown by such Equityholder Indemnified Party at such time, then the right to indemnification with respect thereto to such claim shall remain in effect without regard to when such matter shall have been be finally determined and disposed of, according to the date on which notice of the applicable claim is given; and. (cd) The limitations herein with respect to Seller Warranty Claims contained in Subsections 9.04(a), 9.04(b) and 9.04(c) of this Section 9.04 shall not limit apply to the rights indemnification obligations of any Seller Indemnified Party with respect to any other claims Buyer arising under provisions Subsection 9.03(a). The limitations contained in Subsections 9.04(b) of this Section 6.39.04 shall not apply to adjustments required to be made pursuant to Sections 1.13 and 1.

Limitations on Indemnification by Buyer. The right Notwithstanding anything contained in Section 10.2, the indemnification obligations of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be Buyer are subject to the following provisionslimitations: (a) No Buyer shall not be required to indemnify any Seller Indemnified Person in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i), unless and until the aggregate amount of all such Losses for which indemnification is being claimed equals or exceeds the Deductible (at which point Buyer shall be payable responsible for the full amount of all such Losses in excess of the Deductible); provided that the Deductible shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (b) Buyer shall not be required to indemnify the Seller Indemnified Persons in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i) to the extent that the aggregate amount of such Losses exceeds the Cap; provided that the Cap shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (c) Payments by Buyer in respect of any Loss 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 received or reasonably expected to be received by the Seller Indemnified Persons in respect of any such claim. Notwithstanding the foregoing, nothing herein shall be construed as requiring any Seller Indemnified Person to seek recovery under insurance policies or indemnity, contribution or other similar agreements. (d) In no event shall any Buyer be liable to any Seller Indemnified Party in respect Persons for any punitive, incidental, consequential, special or indirect damages, including loss of any future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf diminution of Buyer as part of or pursuant to this Agreement, value or any third-party claim, action or proceeding asserted or instituted or arising out damages based on any type of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3multiple.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 6.3, when aggregated with all claims made under Section 6.3 of the Affiliate Agreements Agreements, shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification With respect to the matters described in Section 6.2(a), Buyer will have no liability with respect to such matters until Seller Indemnitees have suffered Adverse Consequences by reason of all such breaches in excess of the Threshold, after which point Buyer will be obligated to indemnify Seller Indemnitees from and against all Adverse Consequences from dollar one; provided, that the foregoing limitations shall be payable to any Seller Indemnified Party not apply in respect of any breach Adverse Consequences relating to (a) breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or warranty made by Buyer in this Agreement, (b) any intentional or in any certificate, schedule fraudulent breach of a representation or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof;warranty. (b) Indemnification with With respect to Seller Warranty Claims the matters described in Section 6.2(a), the aggregate maximum liability of Buyer shall expire on be the Indemnification Cut-Off DateCap; provided, however, that the foregoing limitation shall not apply in respect of this clause any Adverse Consequences relating to (i) shall not apply to Seller Warranty Claims involving fraud breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or (b) any intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute or fraudulent breach of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute representation or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; andwarranty. (c) The limitations herein If any Adverse Consequences sustained by a Buyer Indemnitee are covered by an insurance policy, such Buyer Indemnitee shall use commercially reasonable efforts to collect such insurance proceeds. If a Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments prior to being indemnified with respect to Seller Warranty Claims shall not limit such Adverse Consequence under this Article 6, the rights of any Seller Indemnified Party payment under this Article 6 with respect to such Adverse Consequence shall be reduced by the amount of such insurance proceeds or indemnity, contribution or similar payments, less reasonable attorney’s fees and other reasonable expenses incurred in connection with such recovery. If a Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments after being indemnified with respect to some or all of such Adverse Consequence, such Buyer Indemnitee shall pay to the Representative (or return such amount to the Escrow Account if the Escrow Account remains in place at such time) the lesser of (i) the amount of such insurance proceeds or indemnity, contribution or similar payment, less reasonable attorney’s fees and other reasonable expenses incurred in connection with such recovery and (ii) the aggregate amount paid by the Sellers to any other claims arising under provisions of Buyer Indemnitee with respect to such Adverse Consequence. Nothing in this Section 6.36.5(c) shall neither party shall create or be deemed to create any obligation on any party hereto to obtain or maintain any specific insurance policy.