Common use of Limitations on Indemnification Obligation Clause in Contracts

Limitations on Indemnification Obligation. The indemnification obligations of this Article 13 are subject to the following limitations: (a) No indemnification pursuant to Section 13.1 shall be made unless the aggregate amount of Losses incurred by the Buyer Indemnified Parties exceeds One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the “Buyer Threshold Amount”), and, in such event, indemnification shall be made only to the extent that the aggregate amount of Losses incurred by the Buyer Indemnified Parties exceeds the Buyer Threshold Amount; provided that, the Buyer Threshold Amount shall not limit indemnification with respect to Losses related to breaches of the Fundamental Representations or any facts or circumstances which constitute fraud or intentional misrepresentation or failure to perform or satisfy any of the Non-Assumed Obligations. (b) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to Section 13.1 with respect to Indemnification Matters other than those involving the Excluded Liabilities, exceed Three Million and No/100 Dollars ($3,000,000.00). (c) If any representation, warranty or covenant which is qualified by materiality or Material Adverse Effect is breached, the amount of any Loss related to a breach of any such representation or warranty shall be determined without regard to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth therein.

Limitations on Indemnification Obligation. The Notwithstanding anything in this Agreement to the contrary, the liability of Sellers and Posteluk to the Buyer Indemnified Parties with respect to claims for indemnification obligations of this Article 13 are pursuant to Section to 5.2 is subject to the following limitationsfollowing: (a) No indemnification pursuant Sellers and Posteluk shall not be liable to Section 13.1 shall be made unless the aggregate amount of Losses incurred by the Buyer Indemnified Parties exceeds One Hundred Fifty Thousand and No/100 Dollars ($150,000.00for Losses arising under Section 5.2(a) (the “Buyer Threshold Amount”), and, in such event, indemnification shall be made only to the extent that the amounts otherwise indemnifiable for such breaches exceeds an aggregate amount maximum of Losses incurred by $640,000; provided, however, that the Buyer Indemnified Parties exceeds the Buyer Threshold Amount; provided that, the Buyer Threshold Amount foregoing limitation shall not limit indemnification with respect apply to claims for Losses related to breaches arising from (i) a breach of the Fundamental Representations representations and warranties set forth in Article 2 or Sections 3.1, 3.2, 3.3, 3.4, 3.5, or 3.15 or (ii) any facts Excluded Liability or circumstances which constitute fraud or intentional misrepresentation or failure Lien not otherwise assumed hereby by Buyer, including any Third Party Claim relating to perform or satisfy any of the Non-Assumed ObligationsExcluded Liability. (b) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related Sellers and Posteluk shall not be liable to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to for Losses arising under Section 13.1 with respect to Indemnification Matters other than those involving 5.2(a) until and unless the Excluded Liabilitiesaggregate amounts indemnifiable for such breaches exceeds $60,000. In the event the Buyer Indemnified Parties’ claim for Losses, in the aggregate, exceed Three Million and No/100 Dollars ($3,000,000.00)60,000, the Buyer Indemnified Parties shall be entitled to indemnification hereunder for all such Losses. (c) If Sellers and Posteluk shall not be liable to the Buyer Indemnified Parties for Losses arising under Section 5.2(a) unless the claim therefor is asserted in writing on or prior to the expiration of the applicable survival period. (d) Notwithstanding anything contained herein to the contrary, no Buyer Indemnified Party shall be entitled to make any representationclaims for indemnification with respect to any matter to the extent (i) the Purchase Price has been adjusted after the date hereof to reflect such matter or Buyer has unsuccessfully asserted a claim pursuant to Section 1.6 to adjust the Purchase Price with respect to such matter or (ii) any reserve with respect thereto was included on the Closing Statement or the Balance Sheet (but only to the extent of such reserve amount). (e) Buyer shall use its commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Losses for which indemnification is provided to the Buyer Indemnified Parties by Sellers and Posteluk under this Article 5, warranty including its commercially reasonable efforts to pursue insurance proceeds or covenant which is qualified other reimbursement or indemnity arrangements; provided that, nothing herein shall be deemed to require Buyer to pursue any such other legal rights and remedies prior to bringing any claim for indemnification hereunder. (f) Except with regard to indemnification for claims actually paid to third parties, Losses payable by materiality or Material Adverse Effect is breachedan Indemnifying Party under this Article 5 shall not include punitive damages, the amount of any Loss damages related to mental or emotional distress, exemplary damages or damages calculated as a breach multiple of any such representation or warranty shall be determined without regard to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinearnings.

Limitations on Indemnification Obligation. The Sellers and Owners shall not be liable for indemnification obligations to Buyer under Section 5.2(a) of this Article 13 are subject to the following limitations: (a) No indemnification pursuant to Section 13.1 shall be made unless Agreement until the aggregate amount of Losses incurred by the all Indemnification Claims of Buyer Indemnified Parties under Section 5.2(a) exceeds One Hundred Fifty Thousand and No/100 Dollars ($150,000.00100,000) (the “Buyer Threshold Amount”), and, in such event, indemnification at which time Buyer shall be made only entitled to the extent that recover the aggregate amount of Losses incurred by all Indemnification Claims, including the Buyer Indemnified Parties exceeds the Buyer Threshold Amount; provided that. Buyer shall provide the Sellers and Owners with notice of all Indemnification Claims included in the Threshold Amount. The maximum liability of the Sellers under this Agreement for indemnification obligations under Section 5.2(a) shall not exceed twenty five percent (25%) of the Purchase Price (such maximum liability amount, the Buyer “Cap”). Notwithstanding anything to the contrary in this Agreement, the Threshold Amount and the Cap shall not limit indemnification with respect to Losses related to breaches apply in the event of the Fundamental Representations or any facts or circumstances which constitute fraud or fraud, intentional misrepresentation or failure to perform willful and knowing breach of a provision by the indemnifying party, or satisfy in the event of a breach of a Fundamental Representation. Without limiting the effect of any other limitation contained in this Article V, for purposes of the Non-Assumed Obligations. (b) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to Section 13.1 with respect to Indemnification Matters other than those involving the Excluded Liabilities, exceed Three Million and No/100 Dollars ($3,000,000.00). (c) If any representation, warranty or covenant which is qualified by materiality or Material Adverse Effect is breached, computing the amount of any Loss related Damages incurred by any Indemnified Person under this Article V, there shall be deducted an amount equal to a breach the amount of any such representation or warranty shall be determined without regard to amounts the Indemnified Person actually collects from third parties in connection with any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinDamages for which indemnification is sought.

Limitations on Indemnification Obligation. The Notwithstanding anything in this Agreement to the contrary, the liability of the Sellers to the Buyer Indemnified Parties with respect to claims for indemnification obligations of this Article 13 are pursuant to Section 9.2 shall be subject to the following limitations: (a) No indemnification pursuant The Sellers shall not, in the aggregate, be liable to Section 13.1 shall be made unless the aggregate amount of Losses incurred by the Buyer Indemnified Parties exceeds One Hundred Fifty Thousand and No/100 Dollars ($150,000.00for Losses arising under Section 9.2(a) (other than with respect to Fundamental Representations or for actual fraud in the making of representations or warranties of the Sellers in this Agreement (“Buyer Threshold AmountFraud”), and, in such event, indemnification shall be made only ) to the extent that the aggregate amount otherwise indemnifiable for such breaches exceeds an amount equal to ten percent (10.00%) of Losses incurred by the Purchase Price; and, the Sellers shall not, in the aggregate, be liable to the Buyer Indemnified Parties exceeds the Buyer Threshold Amount; provided that, the Buyer Threshold Amount shall not limit indemnification for Losses arising under Section 9.2(a) with respect to Losses related to breaches of the Fundamental Representations or any facts or circumstances which constitute fraud or intentional misrepresentation or failure Fraud to perform or satisfy any of the Non-Assumed Obligationsextent that the amount otherwise indemnifiable for such Losses exceeds an amount equal to the Purchase Price. (b) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related The Sellers shall not be liable to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to for Losses arising under Section 13.1 9.2(a) (other than with respect to Indemnification Matters other than those involving Fundamental Representations or Fraud for which recovery shall not be so limited) until and unless the Excluded Liabilitiesaggregate amounts indemnifiable for such breaches exceeds $25,000. In the event the Buyer Indemnified Parties’ claim for Losses, in the aggregate, exceed Three Million and No/100 Dollars ($3,000,000.00)25,000, the Buyer Indemnified Parties shall be entitled to the entire amount of such Losses back to the first dollar. (c) If The Sellers shall not be liable to the Buyer Indemnified Parties for Losses arising under Section 9.2(a) unless the claim therefor is asserted in writing on or prior to the expiration of the applicable representation and/or warranty. (d) A Seller shall not be liable to the Buyer Indemnified Parties for any representation, warranty Losses arising under Section 9.2 based upon or covenant which is qualified by materiality arising out of (i) any inaccuracy in or Material Adverse Effect is breached, the amount breach of any Loss related of the representations or warranties of the other Seller set forth in Article III of this Agreement; or (ii) the other Seller’s breach of its covenants contained in Section 6.7 of this Agreement. (e) The Sellers shall not be liable to a the Buyer Indemnified Parties for any Losses arising under Section 9.2 based upon or arising out of any inaccuracy in or breach of any of the representations or warranties contained in Article IV of this Agreement if the Buyer had knowledge of such inaccuracy or breach prior to the Closing, by reason of the fact that an director, officer or other Representative of Buyer or Parent had actual knowledge any inaccuracy in or breach of any such representation or warranty was inaccurate as of the Closing. (f) In no event shall any Seller be liable to any Buyer Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple. (g) All indemnification payments pursuant to this Article IX shall be determined without regard deemed to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinbe adjustments to the Purchase Price.

Limitations on Indemnification Obligation. The Seller shall not be liable for indemnification obligations of this Article 13 are subject to Buyer under Sections 10.2(a)(i), and Buyer shall not be liable for indemnification to the following limitations: (a) No indemnification pursuant to Seller under Section 13.1 shall be made unless 10.2(b)(i), under this Agreement until the aggregate amount of Losses incurred by all Claims of Buyer or the Buyer Indemnified Parties Seller under Sections 10.2(a)(i) or 10.2(b)(i), as the case may be, exceeds One Hundred Fifty Five Thousand and No/100 Dollars ($150,000.005,000) (the “Buyer Threshold Amount”), andat which time Buyer or the Seller, in such eventas the case may be, indemnification shall be made only entitled to the extent that recover the aggregate amount of Losses incurred all Claims, including the Threshold Amount. Buyer shall provide the Seller, and the Seller shall provide Buyer, with Notice of all Claims included in the Threshold Amount. The maximum liability of Buyer or the Seller under this Agreement for indemnification obligations under Sections 10.2(a)(i) or 10.2(b)(i), as the case may be, shall not exceed the Purchase Price (such maximum liability amount, the “Cap”). Notwithstanding the foregoing, the Threshold Amount and the Cap shall not apply: (i) in the event of fraud or willful misrepresentation by the Buyer Indemnified Parties exceeds the Buyer Threshold Amountindemnifying party; provided that, the Buyer Threshold Amount shall not limit or (ii) to indemnification obligations for Damages in connection with respect to Losses related to breaches of the Fundamental Representations or any facts or circumstances which constitute fraud or intentional misrepresentation or failure to perform or satisfy any of the Non-Assumed Obligations. (b) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to Section 13.1 with respect to Indemnification Matters other than those involving the Excluded Liabilities, exceed Three Million and No/100 Dollars ($3,000,000.00). (c) If any representation, warranty or covenant which is qualified by materiality or Material Adverse Effect is breached, the amount of any Loss related to a breach of any such covenants of the Company or the Seller, including, without limitation, 6.55 (“Tax Covenants”) and 6.7 (“Confidentiality Obligations”). For the sole purpose of calculating the amount of monetary damages that Buyer may be entitled to under this Article X (as opposed to determining if there has been a breach of a representation or warranty warranty), the representations and warranties of the Company and the Seller shall not be deemed qualified by any references to materiality, Material Adverse Effect or Knowledge. All indemnification payments under Section 10.2 shall be determined without regard deemed adjustments to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinthe Purchase Price.

Limitations on Indemnification Obligation. The Notwithstanding anything in this Agreement to the contrary, the liability of the Seller Parties to the Buyer Indemnified Parties with respect to claims for indemnification obligations of this Article 13 are pursuant to Section 9.2(a) (but not with respect to the Fundamental Representations for which recover shall not be so limited) is subject to the following limitations: (a) No indemnification pursuant The Seller Parties shall not, in the aggregate, be liable to Section 13.1 shall be made unless the aggregate amount of Losses incurred by the Buyer Indemnified Parties exceeds One Hundred Fifty Thousand and No/100 Dollars ($150,000.00for Losses arising under Section 9.2(a) (the “Buyer Threshold Amount”), and, in such event, indemnification other than with respect to Fundamental Representations for which recovery shall be made only limited to the amount of the Purchase Price) except to the extent that the amounts indemnifiable for such breaches exceeds an aggregate amount maximum equal ten percent (10%) of Losses incurred by the Purchase Price (the “Deductible”). In the event the Buyer Indemnified Parties’ claim for Losses, in the aggregate, exceed the Deductible, the Buyer Indemnified Parties exceeds shall be entitled to recover for all Losses. (b) The aggregate liability of each Seller Party for Losses under Section 9.2(a) shall not exceed thirty-five (35%) of the Buyer Threshold AmountPurchase Price (the “Standard Indemnification Cap”); provided thatprovided, however, the Buyer Threshold Amount foregoing Standard Indemnification Cap shall not limit indemnification with respect apply to Losses related to breaches a breach of the Fundamental Representations or any facts or circumstances which constitute in the case of fraud or intentional misrepresentation or failure to perform or satisfy any misrepresentation. The aggregate liability of the Non-Assumed Obligations. (b) In the absence each Seller Party for Losses in respect of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to Section 13.1 with respect to Indemnification Matters other than those involving the Excluded Liabilities, exceed Three Million and No/100 Dollars ($3,000,000.00). (c) If any representation, warranty or covenant which is qualified by materiality or Material Adverse Effect is breached, the amount of any Loss related to a breach of any such representation a Fundamental Representation shall not exceed the Purchase Price (the “Fundamental Indemnification Cap”); provided, however, the foregoing Fundamental Indemnification Cap shall not apply in the case of fraud or warranty shall be determined without regard to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinintentional misrepresentation.

Limitations on Indemnification Obligation. The Sellers shall not be liable for indemnification obligations of this Article 13 are subject to Buyer under Sections ?10.2(a)(i), and Buyer shall not be liable for indemnification to the following limitations: (a) No indemnification pursuant to Sellers under Section 13.1 shall be made unless ?10.2(b)(i), under this Agreement until the aggregate amount of Losses incurred by all Claims of Buyer or the Buyer Indemnified Parties Sellers under Sections ?10.2(a)(i) or ?10.2(b)(i), as the case may be, exceeds One Hundred Fifty Five Thousand and No/100 Dollars ($150,000.005,000) (the “Buyer Threshold Amount”), andat which time Buyer or the Sellers, in such eventas the case may be, indemnification shall be made only entitled to the extent that recover the aggregate amount of Losses incurred all Claims, including the Threshold Amount. Buyer shall provide the Sellers, and the Sellers shall provide Buyer, with Notice of all Claims included in the Threshold Amount. The maximum liability of Buyer or the Sellers under this Agreement for indemnification obligations under Sections ?10.2(a)(i) or ?10.2(b)(i), as the case may be, shall not exceed the Purchase Price (such maximum liability amount, the “Cap”). Notwithstanding the foregoing, the Threshold Amount and the Cap shall not apply: (i) in the event of fraud or willful misrepresentation by the Buyer Indemnified Parties exceeds the Buyer Threshold Amountindemnifying party; provided that, the Buyer Threshold Amount shall not limit or (ii) to indemnification obligations for Damages in connection with respect to Losses related to breaches (x) a breach of the Fundamental Representations representations and warranties contained in Sections ?3.1?3.1 (“No Violation; Authorization”), ?3.4 (“Capitalization”), ?3.13 (“Employee Plans; ERISA”), ?3.16 (“Taxes”) and Section ?3.22 (“Environmental Claims”) or any facts or circumstances which constitute fraud or intentional misrepresentation or failure to perform or satisfy any of the Non-Assumed Obligations. (by) In the absence of intentional misrepresentation, fraud or criminal matters on the part of Seller or Losses related to breaches of the Fundamental Representations, in no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnified Parties pursuant to Section 13.1 with respect to Indemnification Matters other than those involving the Excluded Liabilities, exceed Three Million and No/100 Dollars ($3,000,000.00). (c) If any representation, warranty or covenant which is qualified by materiality or Material Adverse Effect is breached, the amount of any Loss related to a breach of any such covenants of the Company or the Sellers, including, without limitation, ?6.55 (“Tax Covenants”) and 6.7 (“Confidentiality Obligations”). For the sole purpose of calculating the amount of monetary damages that Buyer may be entitled to under this Article X (as opposed to determining if there has been a breach of a representation or warranty warranty), the representations and warranties of the Company and the Sellers shall not be deemed qualified by any references to materiality, Material Adverse Effect or Knowledge. All indemnification payments under Section ?10.2 shall be determined without regard deemed adjustments to any materiality qualification (including terms such as “material” and “Material Adverse Effect”) set forth thereinthe Purchase Price.