Common use of Limitations on Indemnification Obligations Clause in Contracts

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Indemnitees to indemnification pursuant to the provisions of Section 7.02 are subject to the following limitations: (a) Notwithstanding anything in this Article VII to the contrary and subject to Section 7.04(b): (i) The Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(a)(i) until the total amount which the Buyer Indemnitees would recover under this Article VII exceeds the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (ii) The Seller Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.

Limitations on Indemnification Obligations. The rights No Claim may be made against Seller on the one hand, or Buyer, on the other hand, for indemnification pursuant to this Article XI with respect to any individual Claim, unless the aggregate of (i) all Claims of the Buyer Indemnitees and Indemnified Parties with respect to Section 11.2 or (ii) all Claims of the Seller Indemnitees Indemnified Parties with respect to indemnification pursuant Section 11.3, shall exceed $100,000 and, in such event Seller on the one hand, or Buyer, on the other hand shall be required to pay the provisions aggregate amount of Section 7.02 are any such Claims, subject to the limitations described in the following limitations: sentence. Additionally, except as otherwise provided herein, (a) Notwithstanding anything in this Article VII the aggregate amount of all Claims payable by Seller to the contrary Buyer Indemnified Parties shall not exceed $1,000,000, and subject (b) the aggregate amount of all Claims payable by Buyer to Section 7.04(b): (i) the Seller Indemnified Parties shall also not exceed $1,000,000. The foregoing notwithstanding, any and all Claims by a Buyer Indemnitees Indemnified Party against Seller for indemnification relating to any claim by a customer, in connection with his Transferring Client Account, for claims arising or accruing prior to the Closing Date shall not be entitled to recover Losses pursuant to Section 7.02(a)(i) until the total amount which the Buyer Indemnitees would recover under this Article VII exceeds the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses subject to, or included in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from calculating the limitations of the Basketcontained in this Section 11.5. (ii) The Seller Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.

Limitations on Indemnification Obligations. The rights of the Any recovery by Buyer Indemnitees and Seller Indemnitees to for indemnification pursuant to the provisions of Section 7.02 are subject to the following limitationsshall be limited as follows: (a) Notwithstanding anything Buyer shall not be entitled to any recovery unless a claim for indemnification is made in this Article VII accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the contrary and subject to time period of survival set forth in Section 7.04(b): 7.3; (ib) The Buyer Indemnitees shall not be entitled to recover Losses pursuant to any amount for indemnification claims under Section 7.02(a)(i7.1(a)(i) unless and until the total amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 (the “Deductible”), in which event (subject to clause (c) below) the entire amount which that Buyer is entitled to recover in respect of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer Indemnitees would recover for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Article VII exceeds Agreement (the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof)“Cap”) ; provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (ii) The Seller Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); providedhowever, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the such limitations of the Basket. in (b) The provisions of Section 7.04(aand (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to (i) Losses asserted under Sections 7.02(a)(iiPurchased Assets) or 4.11 (a)(iii) or Sections 7.02(b)(ii) or (b)(iiiNo Finder), (ii) . No Claims and Losses arising out of shall be included in determining whether the fraud or intentional misrepresentation of Deductible has been reached unless a Party, or (iii) any Liability Valid Claim Notice seeking indemnification for Taxessuch Claims and Losses has been given by Buyer to Seller.

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Indemnitees to indemnification pursuant to the provisions of Section 7.02 are subject to the following limitations: (a) Notwithstanding anything in this Article VII to the contrary and subject to Section 7.04(b): (i) The Buyer Indemnitees Seller shall not be obligated to indemnify Purchaser for any Losses incurred by Purchaser or other Indemnified Parties of the Purchaser under Section 8.2 until the Losses for which Purchaser is entitled to indemnification under this Agreement exceed $75,000 in the aggregate, in which case, upon exceeding such threshold amount, Purchaser shall be entitled to recover all such Losses pursuant to Section 7.02(a)(i) until the total amount which the Buyer Indemnitees would recover under this Article VII exceeds the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of including such Basket and the Losses in excess thereofinitial threshold amount); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (ii) The Seller Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (b) Except as provided in Section 8.6(d), notwithstanding anything contained in this Agreement to the contrary, in no event shall (i) Seller’s liability for Losses (other than Losses relating to the breach of covenants to be performed by Seller prior to the Closing) exceed, in the aggregate, $2,500,000, or (ii) Purchaser’s liability for Losses (specifically excluding Losses related to Purchaser’s failure to pay any portion of the Purchase Price payable in accordance with this Agreement) exceed, in the aggregate, the lesser of (x) (A) any unpaid portion of the Earn-out Payment or (B) the total amount of the Assumed Liabilities, whichever is greater, and (y) $2,500,000. (c) The provisions amount of any Losses for which indemnification is provided under this Agreement shall be net of any amounts actually recovered by the Indemnified Parties from third parties (including amounts recovered under insurance policies) with respect to such Losses. (d) The limitations set forth in this Section 7.04(a) 8.6 shall not apply to (i) Losses asserted a party’s indemnification obligations under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses this Agreement arising out of the of, relating to or resulting from fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxesby such party.

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Purchaser Indemnitees to indemnification pursuant to the provisions of Section 7.02 9.2.1 are subject to the following limitations: (a) Notwithstanding anything in this Article VII to Section 9.5.1 the contrary amount of any and subject to Section 7.04(b): all Losses will be determined net of (i) The Buyer any amounts actually recovered by the Purchaser Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses, provided that the Purchaser Indemnitees shall have used commercially reasonable efforts to recover under such insurance policies or other collateral sources, and (ii) any Tax benefits recognized with respect to such Losses; Section 9.5.2 in valuing a Loss, no adjustment shall be made as a result of any multiple, increase factor, or any other premium over fair market value, book or historical value which may have been paid by the Purchaser for the Common Stock whether or not such multiple, increase factor or other premium had been used by the Purchaser at the time of, or in connection with, calculating or preparing its bid, its proposed purchase price for the Common Stock or its final purchase price for the Common Stock; Section 9.5.3 the Purchaser Indemnitees will not be entitled to recover Losses pursuant to Section 7.02(a)(i9.2.1(i) until the total amount which the Buyer Purchaser Indemnitees would recover under Section 9.2.1(i) (as limited by the provisions of Sections 9.5.1 and 9.5.2, but for this Article VII Section 9.5.3), exceeds $375,000 (the Basket (at which time “Deductible”) and then only for the Buyer Indemnitees shall be entitled to full indemnification with respect to excess over the amount of such Basket and the Losses in excess thereof)Deductible; provided, however, that notwithstanding the foregoing, the Basket Deductible shall not apply to recovery for a breach of Losses pursuant to any Fundamental Representation; Section 9.5.4 the Fundamental Representations which shall be exempt from the limitations of the Basket. (ii) The Seller Purchaser Indemnitees shall will not be entitled to recover Losses pursuant to Section 7.02(b)(i9.2.1 (i) until if the total amount which aggregate claims actually paid by the Seller Indemnitees would recover under such Section exceeds on account thereof exceed $7,000,000 (the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof“Cap”); provided, however, that notwithstanding the foregoing, the Basket Cap shall not apply to recovery for a breach of Losses pursuant to the any Fundamental Representations which shall be exempt from the limitations of the Basket. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.Representation;

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Parent Indemnitees to indemnification pursuant to the provisions of Section 7.02 8.2(a) other than with respect to fraud or intentional misrepresentation are subject to the following limitations: (a) Notwithstanding anything in this Article VII to the contrary amount of any and subject to Section 7.04(b): all Losses will be determined net of (i) The Buyer any amounts recovered or reasonably expected to be recovered by the Parent Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses and (ii) any Tax benefits realized with respect to such Losses in accordance with the principles of Section 5.10(g); (b) in valuing a Loss, no adjustment shall be made as a result of any multiple, increase factor, or any other premium over fair market value, book or historical value which may have been paid by Parent and/or Newco in connection with the valuation of the Company Securities for purposes of the Merger whether or not such multiple, increase factor or other premium had been used by Parent and/or Newco at the time of, or in connection with, calculating or preparing their bid or in calculating the Enterprise Value or the final Purchase Price; (c) in no event shall Loss include any consequential, indirect, lost profits, punitive and exemplary damages (other than to the extent consequential, indirect, punitive or exemplary damages are paid in a Third Party Claim); (d) the Parent Indemnitees will not be entitled to recover Losses pursuant to Section 7.02(a)(i8.2(a) until the total amount which the Buyer Parent Indemnitees would recover under clause (i) of Section 8.2(a) (as limited by the provisions of Sections 8.4(a) and 8.4(e)), but for this Article VII Section 8.4(d), exceeds One Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00) (the Basket (at which time “Deductible”) and then only for the Buyer Indemnitees shall be entitled to full indemnification with respect to excess over the amount of such Basket and the Losses in excess thereof)Deductible; provided, that however, that, notwithstanding anything herein to the foregoingcontrary, the Basket foregoing limitation in this Section 8.4(d) shall not apply to recovery in respect of Losses pursuant to arising out of Section 8.2(a)(iv) or any breach by the Fundamental Representations which shall be exempt from the limitations Company of the Basket.Sections 3.2 or 5.10(a); (iie) The Seller Parent Indemnitees shall not be entitled to recover Losses indemnification pursuant to Section 7.02(b)(i8.2 if (i) until Parent could have mitigated or prevented such Loss (including seeking indemnification or other redress pursuant to the total amount terms of any contract to which the Seller Indemnitees would recover under Company is a party and by which the Company has the right to seek indemnification from any third party), or (ii) such Section exceeds Loss is due to Parent or the Basket Surviving Corporation filing a Tax return, or taking a position for Tax purposes, that is inconsistent with a position taken on a Tax return that was filed on or before the Closing Date; and (f) at which any time the Seller Parent Indemnitees shall (x) will be entitled to full indemnification with respect to recover no more than the amount of such Basket cash then in the Escrow Account and (y) pursuant to this Agreement, will not be entitled to recover Losses from any source other than the Losses Escrow Account. Notwithstanding anything contained herein to the contrary, after the Closing, on the date that the amount of cash in excess thereof); provided, that notwithstanding the foregoingEscrow Account is reduced to zero, the Basket Parent Indemnitees shall not apply have no further rights to recovery indemnification under this Article VIII, other than for claims of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxesmisrepresentation.

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Purchaser Indemnitees to indemnification pursuant to the provisions of Section 7.02 7.2.1 are subject to the following limitations: (a) Notwithstanding anything in this Article VII to Section 7.4.1 the contrary amount of any and subject to Section 7.04(b): all Losses will be determined net of (i) The Buyer any amounts recovered by Purchaser Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses, net of any reasonable out-of-pocket expenses incurred in collecting such proceeds or payment and increases in premiums attributable to such recovery, and (ii) any Tax benefit actually realized with respect to such Losses within twelve (12) months following the date on which the Claim is made by Purchaser Indemnitee hereunder (it being understood that any such Tax benefit that actually is realized after the payment pursuant to this section (and within the period specified above) shall not be netted from such payment, but shall be paid by the applicable Purchaser Indemnitee within twenty (20) days after such Tax benefit actually is realized) (for the avoidance of doubt, this Section 7.4 shall in no way be construed to require any Purchaser Indemnitee to make available its Tax Returns (or any other information it deems confidential) to Seller or any other Person); Section 7.4.2 [Intentionally omitted]; Section 7.4.3 Purchaser Indemnitees will not be entitled to recover Losses pursuant to Section 7.02(a)(i7.2.1(a) until the total amount which the Buyer Purchaser Indemnitees would recover under this Article VII Section 7.2.1(a) (as limited by the provisions of Sections 7.4.1), exceeds $110,000 (the Basket “Deductible”) and then only for the excess over the Deductible; provided, however, the Deductible will not apply in the case of fraud on the part of the party making such representation or warranty; provided, further, any amounts recovered by Purchaser Indemnitees under Sections 7.2.1(b), (c), or (d) or in the case of fraud shall count when determining whether the Deductible has been exceeded for purposes of claims under Section 7.2.1(a). Section 7.4.4 the Indemnity Escrow Funds, at which time any given time, shall be the Buyer sole source of recovery with respect to any Losses that the Purchaser Indemnities are entitled to recover from Seller or any of its Affiliates for Losses pursuant to Sections 7.2.1(a), and (d) (except in the case of fraud on the part of Seller or the Company) and in no event shall the Purchaser Indemnitees shall be entitled to full indemnification with respect to recover from Seller or any of its Affiliates more than the amount of such Basket and the Losses Indemnity Escrow Funds in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery respect of Losses pursuant to Sections 7.2.1(a), and (d) (except in the Fundamental Representations which shall be exempt from case of fraud on the limitations part of the Basketparty making such representation or warranty) (for the avoidance of doubt, notwithstanding anything contained herein to the contrary after the Closing, on the date that the amount of cash in the Indemnity Escrow Account is reduced to zero, Purchaser Indemnitees shall have no further rights to indemnification from Seller under Sections 7.2.1(a), and (d) (except in the case of fraud on the part of the party making such representation or warranty)); Section 7.4.5 In no event shall Seller or any of its Affiliates have any liability pursuant to this Agreement, the Documents or any other certificate or instrument delivered pursuant hereto, or the transactions related hereto or thereto in the aggregate in excess of the proceeds received by such Person directly or indirectly as a result of the payment of proceeds to Seller pursuant to Article II of this Agreement, as adjusted. (ii) The Seller Section 7.4.6 Purchaser Indemnitees shall not be entitled to recover Losses to the extent such Losses were included in any item taken into account in the determination of Purchase Price (for which the sole remedy shall be pursuant to Section 7.02(b)(i) until 2.3); Section 7.4.7 Purchaser Indemnitees and Seller Indemnitees, as applicable, shall use commercially reasonable efforts to mitigate any of their respective Losses; provided that the total amount which the Seller Indemnitees would recover under costs of any such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect commercially reasonable mitigation efforts, subject to the limitations set forth in this Agreement, shall constitute indemnifiable Losses hereunder; Section 7.4.8 in any case where a Purchaser Indemnitee recovers under insurance policies or from other collateral sources any amount in respect of a matter for which such Purchaser Indemnitee was indemnified pursuant to Section 7.2.1 of this Agreement, such Purchaser Indemnitee shall promptly pay over to Seller the amount so recovered (after deducting therefrom all reasonable and out-of-pocket expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by or on behalf of Seller in respect of such Basket matter (taking into account any reduction pursuant to Section 7.4.1), and the Losses (ii) any reasonable out-of-pocket expenses incurred by Seller in excess thereof)pursuing or defending any claim arising out of such matter; provided, that and Section 7.4.9 notwithstanding the foregoing, for the Basket purposes of determining whether there has been a breach of a representation or warranty or covenant and for calculating the amount of any Losses related thereto, the representations and warranties and covenants shall be read without regard to any Material Adverse Effect or other materiality qualifiers contained therein; provided that the foregoing shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basketrepresentations and warranties set forth in Section 3.6.2. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.

Limitations on Indemnification Obligations. The rights of the Buyer Indemnitees and Seller Indemnitees to indemnification pursuant Notwithstanding anything to the provisions of Section 7.02 are subject to the following limitations:contrary herein or otherwise, (a) Notwithstanding anything in this Article VII to none of the contrary and subject to Section 7.04(b): (i) The Buyer Indemnitees Indemnified Persons or Seller Indemnified Persons shall not be entitled to recover or assert any claim under Section 7.1 or Section 7.2, respectively, until the total amount of Losses in respect of such claim or series of related claims thereunder exceed on a cumulative basis an amount equal to Ten Thousand Dollars ($10,000) (the “De Minimis Threshold Amount”) after which all such Losses shall be recoverable from dollar-one; (b) the maximum aggregate liability of Seller for any and all Indemnified Losses pursuant to Section 7.02(a)(i) until 7.1 shall not exceed an amount equal to the total amount which the Buyer Indemnitees would recover under this Article VII exceeds the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations aggregate value of the Basket.Deferred Total Payment actually received, or to be actually received prior to any set-off in accordance with Section 7.1(c), by Seller; and (iic) The Buyer’s sole recourse hereunder to Seller Indemnitees shall not be entitled to recover for any and all Indemnified Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees 7.1 shall be entitled to full indemnification with respect set off any such Indemnified Losses to the amount extent actually incurred or actually suffered, against any payments due to Seller hereunder of any Deferred Cash Payment, any Deferred Stock Payment and/or any Deferred Sublicensing Consideration (for the avoidance of doubt, Buyer acknowledges and agrees that Buyer shall have no right of direct recourse to Seller or its Affiliates for any such Basket and the Indemnified Losses other than such right of set-off in excess thereof); provided, that notwithstanding accordance with the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket). (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.

Limitations on Indemnification Obligations. The rights In addition to any other limitations contained in Section 16.05 and this Article XVII hereof, the obligations of the Buyer Indemnitees Ceding Company and Seller Indemnitees the Reinsurer to indemnify any Reinsurer Indemnified Party or Ceding Company Indemnified Party, as the case may be, are subject to, and limited by, the following; provided, however, that the limitations set forth in Section 17.04(a) through Section 17.04(d) shall only apply to indemnification pursuant by the Ceding Company of any Reinsurer Indemnified Parties or indemnification by the Reinsurer of any Ceding Company Indemnified Parties on account of 00000000.38 Losses relating to the provisions In-Force Block (it being agreed that, for purposes of this Section 7.02 are subject 17.04, the projections set forth on Schedule X shall be deemed to apply solely to the following limitations:In-Force Block): (a) Notwithstanding anything Solely with respect to Losses attributable to the In-Force Block, the Ceding Company shall be obligated to provide indemnification pursuant to Section 17.01(a)(i), only if the aggregate dollar amount of Losses with respect to all misrepresentations and breaches of warranty referred to in Section 17.01(a)(i) applicable to such Losses exceeds an amount equal to [*], and then only for the amount of such Losses that exceeds [*]. (b) Solely with respect to Losses attributable to the In-Force Block, the maximum aggregate liability of the Ceding Company for indemnification for all such Losses pursuant to Section 17.01(a)(i) applicable to the In-Force Block shall not exceed [*]. (c) Solely with respect to Losses attributable to the In-Force Block, the Reinsurer shall be obligated to provide indemnification pursuant to Section 17.01(b)(i) only if the aggregate dollar amount of Losses with respect to all misrepresentations and breaches of warranty referred to in Section 17.01(b)(i) applicable to such Losses exceeds an amount equal to [*], and then only for the amount of such Losses that exceeds [*]. (d) Solely with respect to Losses attributable to the In-Force Block, the maximum aggregate liability of the Reinsurer for indemnification for all such Losses pursuant to Section 17.01(b)(i) applicable to the In-Force Block shall not exceed [*]. (e) The Ceding Company and the Reinsurer shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to indemnify the other party under this Article XVII, including by using commercially reasonable efforts to mitigate the amount of any Losses for which it is entitled to seek indemnification hereunder, whether by seeking claims against a non-affiliated third party, an insurer or otherwise. (f) Upon making any indemnification payment, the Indemnifying Party will, to the extent of such payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the Loss to which the payment relates. Each such Indemnified Party and Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation rights. (g) The amount of any Losses sustained by an Indemnified Party and owed by an Indemnifying Party shall be reduced by any amount to which such Indemnified Party collects with respect thereto under any insurance or reinsurance coverage, or from any other party alleged to be responsible therefor (less the out-of-pocket amount of the expenses reasonably incurred by the Indemnified Party in procuring such recovery, including the present value of any reasonably determined prospective increase in insurance premiums). The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under such insurance or reinsurance coverage and from such other party alleged to have responsibility. If the Indemnified Party receives an amount under insurance or reinsurance coverage or from such other party with respect to Losses sustained at any time subsequent to any indemnification actually having been paid pursuant to this Article XVII, then such Indemnified Party shall promptly reimburse by that amount (less the out-of-pocket amount of the expenses reasonably incurred by the Indemnified Party in procuring such recovery, including the present value of any reasonably determined prospective increase in insurance premiums) the applicable Indemnifying Party for any such indemnification payment actually made by such Indemnifying Party. (h) The indemnities provided for in this Article VII to XVII shall be the contrary sole and subject to Section 7.04(b): (i) The Buyer Indemnitees exclusive remedy of the parties hereto and their respective officers, directors, employees, agents, Affiliates, successors, and permitted assigns for any breach of any representation or warranty or 46753330.38 any breach, nonfulfillment or default in the performance of any of the covenants or agreements contained in this Agreement, and the parties shall not be entitled to recover Losses pursuant a rescission of this Agreement or to Section 7.02(a)(i) until the total amount any further indemnification rights or claims of any nature whatsoever in respect thereof (including any common law rights of contribution), all of which the Buyer Indemnitees would recover under this Article VII exceeds the Basket (at which time the Buyer Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basketparties hereto hereby waive. (ii) The Seller Indemnitees shall not be entitled to recover Losses pursuant to Section 7.02(b)(i) until the total amount which the Seller Indemnitees would recover under such Section exceeds the Basket (at which time the Seller Indemnitees shall be entitled to full indemnification with respect to the amount of such Basket and the Losses in excess thereof); provided, that notwithstanding the foregoing, the Basket shall not apply to recovery of Losses pursuant to the Fundamental Representations which shall be exempt from the limitations of the Basket. (b) The provisions of Section 7.04(a) shall not apply to (i) Losses asserted under Sections 7.02(a)(ii) or (a)(iii) or Sections 7.02(b)(ii) or (b)(iii), (ii) Losses arising out of the fraud or intentional misrepresentation of a Party, or (iii) any Liability for Taxes.