Common use of Limitations on Indemnification of Buyer Indemnitees Clause in Contracts

Limitations on Indemnification of Buyer Indemnitees. Notwithstanding anything herein to the contrary, the right of the Buyer Indemnitees to indemnification under this Article VIII is limited as follows: (a) The Buyer Indemnitees will not be entitled to indemnification with respect to the matters described in Section 8.2 for any Damages until the total of all such Damages suffered by the Buyer Indemnitees exceeds the sum of One Hundred Thousand Dollars ($100,000) (the "Basket"), in which event the Buyer Indemnitees will be entitled to indemnification from the Indemnification Escrow Amount for all Damages in excess of the Basket. (b) All claims for Damages made by any Buyer Indemnitee pursuant to Section 8.2 shall be satisfied solely out of the Indemnification Escrow Amount, subject to the terms of the Escrow Agreement. In no event shall the Seller be liable for Damages pursuant to this Article VIII in excess of the Indemnification Escrow Amount. (c) The Buyer Indemnitees' right to indemnification pursuant to Section 8.2 on account of any Damages shall be reduced by all insurance or other third party indemnification proceeds actually received by the Buyer Indemnitees. The Buyer shall use commercially reasonable efforts to claim and recover any Damages suffered by the Buyer Indemnitees under any such insurance policies or other third party indemnities; provided that the Buyer shall not be required to initiate any Action or expend any material amounts in connection therewith. (d) Except with respect to Damages actually awarded to a third party in an action brought against a Buyer Indemnitee, the Buyer Indemnitees shall not be entitled to indemnification pursuant to Section 8.2 hereof for punitive damages, or for lost profits, consequential, incidental, exemplary or special damages.

Limitations on Indemnification of Buyer Indemnitees. Notwithstanding anything herein to the contrary, the right of the Buyer Indemnitees to indemnification under this Article VIII and reimbursement is limited as follows: (a) The Subject to Section 7.11, the Buyer Indemnitees will not be entitled to indemnification with respect to the matters described in Section 8.2 7.2(a)(i) for any Damages until the total of all such Damages suffered by the Buyer Indemnitees exceeds the sum of One Hundred Thousand Dollars (an amount equal to $100,000) 2,062,500 (the "“Basket"”), in which event the Buyer Indemnitees will be entitled to indemnification from the Indemnification Escrow Amount or reimbursement for all Damages in excess of the BasketBasket and up to a maximum amount equal $4,125,000 (the “Cap”); provided that the foregoing limitations do not apply to Damages arising out of any breach or inaccuracy of any Fundamental Representations. (b) All Seller’s maximum aggregate liability for all claims for Damages made by any Buyer Indemnitee pursuant to Section 8.2 under Article VII shall be satisfied solely out of the Indemnification Escrow Amount, subject to the terms of the Escrow Agreement. In in no event shall exceed the Seller be liable for Damages pursuant to this Article VIII in excess of the Indemnification Escrow AmountFinal Net Purchase Price. (c) The Buyer Indemnitees' ’ right to indemnification pursuant to Section 8.2 7.2 and Section 7.8 on account of any Damages shall be (i) reduced by all receipt of applicable payments under insurance policies (other than from the Representation and Warranty Insurance Policy) or other from third party indemnification proceeds actually received by parties not affiliated with the Buyer Indemnitees, and (ii) reduced by the amount of any Tax benefit and increased by any Tax detriment (including any Tax detriment that results from the receipt of the payment for such Damages pursuant to Section 7.2 or Section 7.8), in each case, that is actually realized (on a “with and without basis”) through a reduction, credit, or increase of Taxes of the Company or any Buyer Indemnitee. The Buyer shall use commercially its reasonable best efforts to claim and recover any Damages suffered by the Buyer Indemnitees under any such insurance policies or other third party indemnities; provided that the Buyer amount deemed to be recovered will be net of (i) costs and expenses incurred in obtaining such payments, which shall not be required (without duplication) constitute Damages subject to initiate indemnification hereunder and (ii) in the case of insurance policies, any Action or expend any material amounts increase in connection therewiththe premium (and retro premium adjustments) for such policies to the extent directly arising out of such Damages. (d) Except with respect The Buyer Indemnitees shall be entitled to reimbursement or indemnification under this Article VII for (i) Damages actually awarded to a third party in an action a Legal Proceeding brought against a Buyer Indemnitee and (ii) Damages that are the reasonably foreseeable consequence of the underlying breach. The Buyer Indemnitees shall not be entitled to reimbursement or indemnification under this Article VII for punitive damages or exemplary damages, or consequential damages that are not the reasonably foreseeable consequence of the underlying breach, in each case other than to the extent that such Damages are actually awarded to a third party in a Legal Proceeding brought against such Buyer Indemnitee. (e) Notwithstanding anything to the contrary in this Article VII, the rights and obligations of the Buyer Indemnitees with respect to indemnification or reimbursement pursuant to this Article VII for any and all Tax matters shall be governed by Section 7.8, except that Section 7.1, the Cap, Xxxxxxx 0.0, xxxxxxxxxx (x), (x), (x), (x), (x), (x) (but only as it relates to Section 7.8(a)(i)(B)) and (h) of this Section 7.5 and Section 7.6 shall also apply. (f) The Buyer Indemnitees shall not be entitled to recover Damages in respect of any claim or otherwise obtain reimbursement or restitution more than once with respect to any claim hereunder. Without limiting the foregoing, notwithstanding anything to the contrary in this Agreement, the Buyer Indemnitees shall not be entitled to indemnification pursuant with respect to Section 8.2 hereof for punitive damagesany Damages as a result of, or based upon or arising from, any claim or liability to the extent such claim or liability is taken into account in determining the Final Net Purchase Price in accordance with Section 1.6. (g) Other than with respect to the Fundamental Representations, Seller shall not be required to indemnify any Buyer Indemnitee under Section 7.2(a)(i) in respect of any individual claim for lost profitsDamages or series of related claims for Damages incurred or suffered by such Buyer Indemnitee, consequentialunless such Damages exceed $50,000 (the “Per-Claim Threshold”), incidentalin which case all such Damages shall be indemnifiable claims and subject to indemnification hereunder counted against the Basket; and any individual claim for Damages (or series of related claims for Damages) less than the Per-Claim Threshold (unless it is part of a series of related Damages that aggregate to the Per-Claim Threshold) shall not be aggregated for purposes of calculating whether or not Damages of the Buyer Indemnitees exceed the Basket. (h) For the avoidance of doubt, exemplary the Buyer Indemnitees’ sole recourse with respect to any claims for Damages under this Agreement following the first anniversary of the Closing Date shall be to seek recovery under the Representation and Warranty Insurance Policy; provided that this Section 7.5 shall not (a) prohibit (i) injunctive relief (including specific performance) or special damagesother equitable relief with respect to any covenant or agreement contained in this Agreement for which performance remains outstanding in accordance with its terms or (ii) any other remedy available at law or in equity for any fraud committed or made by the Company or Seller in connection with the transactions contemplated by this Agreement, or (b) operate to interfere with or impede the right of the Buyer Indemnitees’ to bring claims for Damages arising from a breach by Seller of any covenant or agreement of Seller for which performance following the Closing Date remains outstanding in accordance with its terms; provided further that this Section 7.5(h) shall not be construed to impair, prevent or limit any right to indemnification under this Article VII with respect to any claim made by the Buyer Indemnitee in accordance with Section 7.7 prior to the first anniversary of the Closing Date that is not fully and finally resolved prior to the first anniversary of the Closing Date, which claim shall survive until it is finally and fully resolved.

Limitations on Indemnification of Buyer Indemnitees. Notwithstanding any other provisions of this Agreement, the indemnification of Buyer Indemnitees provided for in this Agreement shall be subject to the limitations and conditions set forth in this Section 9.2. (a) Except as set forth below, any claim by a Buyer Indemnitee for indemnification pursuant to clause (a) of Section 9.1 of this Agreement shall be required to be made by delivering notice to Sellers' Representative no later than the expiration of eighteen (18) months after the Closing Date. Notwithstanding the foregoing, (i) any claim for indemnification based upon, resulting from or arising out of any inaccuracy in or breach of any representation or warranty made by any Seller in Article 3 or Section 4.2 [Capital Stock] or 4.4 [Noncontravention] may be made at any time; and (ii) any claim for indemnification based upon, resulting from or arising out of any inaccuracy in or breach of any representation or warranty contained in Section 4.7 [Taxes] may be made until the expiration of the applicable statute of limitations; and (iii) any claim for indemnification based upon, resulting from or arising out of any inaccuracy in or breach of any representation or warranty contained in Section 4.6(H) or 4.9 [Employee Plans and Other Compensation Arrangements] may be made for five (5) years after the Closing. In addition, any claim by a Buyer Indemnitee for indemnification pursuant to clause (b) of Section 9.1 of this Agreement shall be required to be made by delivering notice to Sellers' Representative no later than the expiration of eighteen (18) months after Buyer or senior officers of the Company become aware of any breach or nonperformance of any covenant or obligation made or incurred by Sellers or Sellers' Representative. Notwithstanding anything herein in this Section 9.2 to the contrary, the right foregoing time limitations shall not preclude a Buyer Indemnitee from providing notice of a potential claim within the applicable time limitation before any Loss has been suffered if the facts or circumstances giving rise to the potential Loss have been identified with reasonable specificity in the notice and the notice shall not be deficient by reason of the Buyer Indemnitees to indemnification under this Article VIII is limited as follows: (a) The Buyer Indemnitees will not be entitled to indemnification with respect to the matters described in Section 8.2 for any Damages until the total of all such Damages suffered by the Buyer Indemnitees exceeds the sum of One Hundred Thousand Dollars ($100,000) (the "Basket"), in which event the Buyer Indemnitees will be entitled to indemnification from the Indemnification Escrow Amount for all Damages in excess of the Basketforegoing. (b) All Except for (i) claims for Damages made by indemnification in respect of breaches of representations and warranties contained in Article 3 or Section 4.2 [Capital Stock], 4.4 [Noncontravention] or 4.19 [Brokerage], or the covenants and agreements contained in Article 2 or any other covenants or agreements providing for the responsibility of the parties to pay any specific amounts (except for the Sellers' obligation to indemnify Buyer Indemnitee for Losses pursuant to Section 8.2 8.1.9 which shall be satisfied solely out of the Indemnification Escrow Amount, subject to the terms of the Escrow Agreement. In no event shall the Seller be liable limitations set forth in this Section 9.2(b)); or (ii) claims for Damages pursuant to this Article VIII in excess of the Indemnification Escrow Amount. indemnification under clause (c) The Buyer Indemnitees' right to indemnification pursuant to of Section 8.2 on account of any Damages shall be reduced by all insurance or other third party indemnification proceeds actually received by the Buyer Indemnitees. The Buyer shall use commercially reasonable efforts to claim and recover any Damages suffered by the Buyer Indemnitees under any such insurance policies or other third party indemnities; provided that the Buyer shall not be required to initiate any Action or expend any material amounts in connection therewith. (d) Except with respect to Damages actually awarded to a third party in an action brought against a Buyer Indemnitee9.1, the Buyer Indemnitees shall not be entitled to indemnification under clause (a) or (b) of Section 9.1 until the aggregate amount of all of Buyer Indemnitees' claims for indemnification exceeds an amount equal to $250,000 (the "Indemnification Threshold") and thereafter Buyer Indemnitees shall be entitled to indemnification only for amounts in excess of the Indemnification Threshold. (c) Except for (i) claims for indemnification in respect of breaches of representations and warranties contained in Article 3 or Section 4.2 [Capital Stock], 4.4 [Noncontravention] or 4.19 [Brokerage], or breaches of the covenants and agreements contained in Article 2 or willful breaches of any other covenants or agreements providing for the responsibility of the parties to pay specific amounts (except for Sellers' obligation to indemnify Buyer for Losses pursuant to Section 8.2 hereof 8.1.9 which shall be subject to the limitations set forth in this Section 9.2(c)); or (ii) for punitive claims for indemnification under clause (c) of Section 9.1, the maximum indemnification amount to which Buyer Indemnitees may be entitled under clause (a) or (b) of Section 9.1 shall be an amount equal to five percent (5%) of the Enterprise Value (the "Aggregate Indemnification Limit"); provided, however, that (i) the maximum amount which Buyer Indemnitees may recover from any individual Seller with respect to any particular claim shall be limited to an amount equal to such Seller's pro rata share of such claim determined in accordance with the allocations set forth on Schedule 2.6 hereto, and (ii) the maximum amount which Buyer may recover from any individual Seller with respect to all claims asserted hereunder (in the aggregate) shall be limited to Seller's pro rata share of the Aggregate Indemnification Limit, determined in accordance with the allocations set forth on Schedule 2.6. (d) For purposes of this Agreement, Buyer shall not be entitled to "double recovery" with respect to any claim for indemnification. Buyer shall make the Company's books and records relating to such claims available to Sellers' Representative and make the Company's employees available for interviews and similar matters to assist Sellers' Representative with respect to such claims. (e) All claims for indemnification shall be limited to actual and incidental damages, liabilities, losses and expenses (including reasonable attorneys' and accounting fees) incurred without reference to any valuation methodology used by Buyer Indemnitees or Sellers. In the event that a Buyer Indemnitee makes a claim for lost profitsindemnification which is determined by a court of competent jurisdiction to be without reasonable basis in law or fact, consequentialBuyer Indemnitee shall bear all reasonable costs and expenses (including court costs and reasonable attorneys' and accounting fees), incidentalincurred by Sellers in investigating and defending against such claim. (f) Notwithstanding anything herein to the contrary, exemplary Buyer Indemnitees shall not be entitled to indemnification for any Loss relating to a breach of Section 4.10 (other than any Loss indemnified pursuant to Section 9.1(c)(ii) hereof or special damagesa willful or intentional misrepresentation or omission made To Sellers' Knowledge); it being understood that the Company shall look solely to the Pollution and Remediation Legal Liability Policy described on Schedule 4.22 for such matters.

Limitations on Indemnification of Buyer Indemnitees. Notwithstanding anything herein to the contrary, the right of the Buyer Indemnitees to indemnification under this Article VIII and reimbursement from the Indemnification Escrow Amount is limited as follows: (a) The Buyer Indemnitees will not be entitled to indemnification with respect to the matters described in Section 8.2 7.2(a) (other than the Fundamental Representations) for any Damages until the total of all such Damages suffered by the Buyer Indemnitees exceeds the sum of One Hundred Thousand Dollars ($100,000) 975,000 (the "“Basket"”), in which event the Buyer Indemnitees will be entitled to indemnification or reimbursement from the Indemnification Escrow Amount for all Damages in excess of the Basket. Notwithstanding the foregoing, no claim for indemnification may be made by the Buyer Indemnitees pursuant to Section 7.2(a) (other than the Fundamental Representations) for any individual item or series of related items unless the amount of Damages with respect to such item or series of related items shall exceed $25,000. If the amount of Damages with respect to any individual item or series of related items does not exceed $25,000, the amount of such Damages shall not be taken into account in determining whether or not, or the extent to which, the Basket has been exceeded. (b) All Seller’s maximum aggregate liability for Damages with respect to the matters described in Section 7.2(a) (other than the Fundamental Representations) or Section 7.8 shall in no event exceed the Indemnification Escrow Amount and all claims for Damages made by any Buyer Indemnitee pursuant with respect to the matters described in Section 8.2 7.2(a) (other than the Fundamental Representations) or Section 7.8 shall be satisfied solely out of the Indemnification Escrow Amount, subject . Seller’s maximum aggregate liability for Damages with respect to the terms matters described in Section 7.2(d) shall in no event exceed the Additional Escrow Amount and all claims for Damages made by any Buyer Indemnitee with respect to the matters described in Section 7.2(d) shall be satisfied solely out of the Additional Escrow AgreementAmount. In The maximum aggregate liability of Seller for all claims for Damages made by any Buyer Indemnitee under Section 7.2(b) (together with any liability under Section 7.2(a), 7.2(c), 7.2(d) and Section 7.8) shall in no event shall exceed the Seller be liable for Damages pursuant to this Article VIII in excess of the Indemnification Escrow AmountAggregate Consideration. (c) The Buyer Indemnitees' ’ right to indemnification pursuant to Section 8.2 Sections 7.2 and 7.8 on account of any Damages shall be (i) reduced by all receipt of applicable payments under insurance policies or other from third party indemnification proceeds actually received parties not affiliated with the Buyer Indemnitees (net of the expenses of recovery thereof) and (ii) reduced by the amount of any Tax benefit actually realized through a reduction of Taxes payable or refund of Taxes paid by the Company or any Buyer IndemniteesIndemnitee in the tax year in which the Damages are incurred or in the immediately succeeding tax year, which reduction is directly attributable to the deductibility of such Damages (as calculated on a “with and without basis”), net of any Taxes, costs and expenses payable with respect to the receipt or accrual of any such refund or reduction of Taxes by the Company or any Buyer Indemnitee. The Buyer shall use commercially its reasonable best efforts to claim and recover any Damages suffered by the Buyer Indemnitees under any such insurance policies or other third party indemnities; provided that the Buyer it shall not be required to initiate litigation against any Action insurer or expend other third party. Seller shall have no right to audit any material amounts Tax Returns of the Company or any Buyer Indemnitee for the purpose of determining any reduction pursuant to clause (ii) above but, promptly upon request by Seller, Buyer’s Chief Financial Officer shall provide a certificate to Seller containing a detailed calculation of the Tax benefits described in connection therewithclause (ii) above, if any, prepared in good faith. (d) Except with respect to Damages actually awarded to a third party in an action brought against a Buyer Indemnitee, the Buyer Indemnitees shall not be entitled to any reimbursement or indemnification pursuant to Section 8.2 hereof under this ARTICLE VII from the Escrow Agreement for punitive damages, or for lost profits, consequential, incidental, exemplary or special damages. (e) Notwithstanding anything to the contrary in this ARTICLE VII, the rights and obligations of the Buyer Indemnitees with respect to indemnification or reimbursement pursuant to this ARTICLE VII for any and all Tax matters shall be governed by Section 7.8, except that Section 7.1, Section 7.4 and paragraphs (b), (c), (d) and (f) of this Section 7.5 shall also apply. (f) The Buyer Indemnitees shall not be entitled to recover Damages in respect of any claim or otherwise obtain reimbursement or restitution more than once with respect to any claim hereunder. Without limiting the foregoing, notwithstanding anything to the contrary in this Agreement, Buyer shall not be entitled to indemnification with respect to any Damages as a result of, or based upon or arising from, any claim or liability to the extent such claim or liability is taken into account in determining the Final Working Capital in accordance with Section 1.6.