Common use of Monetary Limitations on Indemnification Clause in Contracts

Monetary Limitations on Indemnification. (i) Sellers shall not be obligated hereunder to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv), Section 7.2(a)(vii), Section 7.2(a)(viii) and Section 7.2(a)(ix) unless and until the aggregate amount of Indemnifiable Damages exceeds the General Basket Amount, and thereafter Buyer Indemnified Parties shall be entitled to indemnity hereunder only with respect to any such amounts in excess of the General Basket Amount; provided that such limitation shall not apply to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.1 (Organization, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property), Section 3.4(d) (Personal Property) and Section 3.12 (Taxes). (ii) The maximum aggregate obligation of Sellers to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification (A) pursuant to Section 7.2(a)(ii) shall not exceed Two Hundred Fifty Million Dollars ($250,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.1 (Organization, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property) and Section 3.4(d) (Personal Property), (B) pursuant to Section 7.2(a)(ii), Section 7.2(a)(vii) and Section 7.2(a)(viii) shall not exceed, in the aggregate, Ninety Million Dollars ($90,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.3 (Environmental Matters) and Section 3.10 (Labor and Employment Matters; ERISA), for Specified Pre-Signing Environmental Matters and for Specified Pre-Closing Environmental Matters, respectively, (C) pursuant to Section 7.2(a)(ii) shall be unlimited with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.12 (Taxes) and (D) pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv) and Section 7.2(a)(ix) shall not exceed Twenty-Five Million Dollars ($25,000,000) with respect to Indemnifiable Damages for any other breach of a representation or warranty, for Pre-Closing Service Matters and for the matters set forth on Schedule 7.2(a)(ix), respectively; provided that, with respect to Indemnifiable Damages for indemnification pursuant to clause (B) in this clause (ii), subject to the limitation contained in Section 7.2(g)(i) above and the aggregate limit set forth in clause (B) of this clause (ii), Sellers and Buyers shall contribute and share in each item of Indemnifiable Damages pursuant to such clause (B) as follows: Beginning with the Closing Date through the first anniversary of the Closing Date Sellers shall bear 100% and Buyers shall bear 0% of each item of Indemnifiable Damages Beginning after the first anniversary of the Closing Date through the second anniversary of the Closing Date Sellers shall bear 75% and Buyers shall bear 25% of each item of Indemnifiable Damages After the second anniversary of the Closing Date Sellers shall bear 50% and Buyers shall bear 50% of each item of Indemnifiable Damages (iii) The liability of either Sellers or Buyers under this Section 7.2 shall (A) be offset dollar for dollar by any cash recovery actually made (net of reasonable out-of-pocket expenses incurred in obtaining such recovery and, in the case of insurers, the amount of any retrospective or other current increase in premium that is directly attributable to the payment of such cash recovery) by the Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, from any unaffiliated third party (including insurers) on account of the item of Indemnifiable Damages involved (and no right of subrogation shall accrue to any such third party), and (B) be offset by any Tax benefit (net of Taxes, the reasonable out-of-pocket expenses incurred in obtaining such benefit and any Tax detriment) inuring to the indemnified party therefrom and realized in the taxable year in which the Indemnifiable Damages were incurred. The parties hereto agree to pursue diligently and in good faith any recovery from any such third party with respect to any item of Indemnifiable Damages involved unless such party determines that the pursuit of such recovery would not be likely to result in any substantial net recovery, but payments for Indemnifiable Damages shall not be postponed pending any such receipts or recoveries. Any such receipts or recoveries received by an indemnified party after a payment for Indemnifiable Damages shall be promptly paid over to the Indemnitor in an amount not to exceed the amount paid by the Indemnitor to the indemnified party with respect to such item of Indemnifiable Damages. (iv) The maximum aggregate obligation of Buyers to indemnify any Seller Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification pursuant to Section 7.2(b)(ii) shall not exceed Seventy-Five Million Dollars ($75,000,000). (v) Notwithstanding anything in this Agreement to the contrary, none of the foregoing limitations shall apply in the case of fraud, criminal activity, or intentional misconduct.

Monetary Limitations on Indemnification. (ia) Sellers shall not be obligated hereunder to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv), Section 7.2(a)(vii), Section 7.2(a)(viii) and Section 7.2(a)(ix) unless and until the aggregate No amount of Indemnifiable Damages exceeds the General Basket Amount, and thereafter Buyer Indemnified Parties indemnity shall be entitled to indemnity hereunder only with respect to any such amounts in excess of the General Basket Amount; provided that such limitation shall not apply to Indemnifiable Damages based on a breach of a representation payable by Equity Seller or warranty set forth in Section 3.1 (Organization, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property), Section 3.4(d) (Personal Property) and Section 3.12 (Taxes). (ii) The maximum aggregate obligation of Sellers to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification (A) pursuant to Section 7.2(a)(ii) shall not exceed Two Hundred Fifty Million Dollars ($250,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.1 (Organization, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property) and Section 3.4(d) (Personal Property), (B) pursuant to Section 7.2(a)(ii), Section 7.2(a)(vii) and Section 7.2(a)(viii) shall not exceed, in the aggregate, Ninety Million Dollars ($90,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.3 (Environmental Matters) and Section 3.10 (Labor and Employment Matters; ERISA), for Specified Pre-Signing Environmental Matters and for Specified Pre-Closing Environmental MattersAsset Seller, respectively, (C) pursuant to Section 7.2(a)(ii) shall be unlimited with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.12 (Taxes) and (D) pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv) and Section 7.2(a)(ix) shall not exceed Twenty-Five Million Dollars ($25,000,000) with respect to Indemnifiable Damages for any other breach of a representation or warranty, for Pre-Closing Service Matters and for the matters set forth on Schedule 7.2(a)(ix), respectively; provided that, with respect to Indemnifiable Damages for indemnification pursuant to clause (B) in this clause (ii), subject to the limitation contained in Section 7.2(g)(i) above and the aggregate limit set forth in clause (B) of this clause (ii), Sellers and Buyers shall contribute and share in each item of Indemnifiable Damages pursuant to such clause (B) as follows: Beginning with the Closing Date through the first anniversary of the Closing Date Sellers shall bear 100% and Buyers shall bear 0% of each item of Indemnifiable Damages Beginning after the first anniversary of the Closing Date through the second anniversary of the Closing Date Sellers shall bear 75% and Buyers shall bear 25% of each item of Indemnifiable Damages After the second anniversary of the Closing Date Sellers shall bear 50% and Buyers shall bear 50% of each item of Indemnifiable Damages (iii) The liability of either Sellers or Buyers under this Section 7.2 shall (A) be offset dollar for dollar by any cash recovery actually made (net of reasonable out-of-pocket expenses incurred in obtaining such recovery and, in the case of insurers, the amount of a claim by any retrospective Purchaser Indemnified Party under Section 6.2(a)(1) or other current increase in premium that is directly attributable to the payment of such cash recovery) by the Buyer Purchaser Parties in the case of a claim by a Seller Indemnified Parties Party under Section 6.4(a) unless such Purchaser Indemnified Party or Seller Indemnified PartiesParty has suffered or incurred Losses consisting of actual damages aggregating in excess of Two Hundred Thousand U.S. Dollars and No/100 (U.S. $200,000.00) (the "Threshold Amount") whereupon such Purchaser Indemnified Party or Seller Indemnified Party shall be entitled to claim indemnification for the amount by which its Losses exceed the Threshold Amount, as provided that in no event shall the case may be, from aggregate indemnity amount payable by any unaffiliated third party Indemnifying Party under Section 6.2(a)(1) exceed Fifteen Million U.S. Dollars and No/100 (including insurersU.S. $15,000,000.00) on account of the item of Indemnifiable Damages involved Cash Purchase Price (and the "Cap Amount"); provided, further, that no right of subrogation Purchaser Indemnified Party or Seller Indemnified Party shall accrue to any such third party), and (B) be offset by any Tax benefit (net of Taxes, the reasonable out-of-pocket expenses incurred in obtaining such benefit and any Tax detriment) inuring to the indemnified party therefrom and realized in the taxable year in which the Indemnifiable Damages were incurred. The parties hereto agree to pursue diligently and in good faith any recovery from any such third party have an indemnity claim with respect to any item of Indemnifiable Damages involved unless such party determines individual Losses that the pursuit of such recovery would not be likely to result in any substantial net recovery, but payments for Indemnifiable Damages shall not be postponed pending any such receipts or recoveries. Any such receipts or recoveries received by an indemnified party after a payment for Indemnifiable Damages shall be promptly paid over to the Indemnitor in an amount not to exceed the amount paid by the Indemnitor to the indemnified party with respect to such item of Indemnifiable Damages. (iv) The maximum aggregate obligation of Buyers to indemnify any Seller Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification pursuant to Section 7.2(b)(ii) shall do not exceed Seventy-Two Thousand Five Million Hundred U.S. Dollars and No/100 (U.S. $75,000,0002,500.00) (the "De Minimis Amount"). (v) . Notwithstanding anything in this Agreement herein to the contrary, none the Cap Amount shall not apply with respect to the Seller Parties' obligation to indemnify the Purchaser Parties from any liability for Taxes under Section 10.1. (b) All amounts of indemnity paid either by any Seller Party shall be added for the purpose of determining whether the Cap Amount has been reached. The Cap Amount therefore is a common upper limit for the obligation of the foregoing limitations Seller Parties towards the Purchaser Parties taken together. (c) Notwithstanding anything to the contrary in this Agreement, if an event occurs after signing of this Agreement and prior to Closing at no fault of any Seller Party which leads to a breach of one or more of the warranties contained in nos. 0, 0, 00 (x), 00 (x), 00, 13, 14 and/or 18 of Attachment 4.1 (an "Interim Period Breaching Event"), no indemnity shall be payable with respect to the first U.S. $100,000 (one hundred thousand U.S. Dollars) of damages incurred by a Purchaser Party with respect to each such Interim Period Breaching Event, provided, however, that such limitation shall only apply for a maximum number of three (3) Interim Period Breaching Events. (d) In the event that the Transaction has not become permissible under cartel law within thirty (30) days after receipt of the pre-merger notification by the FCO, no Seller Party shall be liable to indemnify any Purchaser Party for any breach of any of the warranties contained in the case Section 8, 9, 10(a), 10(d), 11, 13, 14 and/or 19 of fraud, criminal activity, or intentional misconductAttachment 4.1 which occur subsequent to such thirty (30) day period without fault of any Seller Party.

Monetary Limitations on Indemnification. (i) With respect to Indemnifiable Damages specified in subsections 7.2(a)(iv), (vii) and (viii), there shall be no monetary limitation on Sellers' ---------- ----- ------ obligation to indemnify Buyer hereunder. (ii) For all other Indemnifiable Damages, Sellers shall not be obligated hereunder to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages liabilities, losses, claims, judgments, damages, expenses and costs as to which such persons are Buyer is otherwise entitled to indemnification pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv), Section 7.2(a)(vii), Section 7.2(a)(viii) and Section 7.2(a)(ix) under this Agreement unless and until the aggregate amount of Indemnifiable Damages indemnification so asserted exceeds the General Basket AmountTwo Hundred Fifty Thousand Dollars ($250,000), and thereafter Buyer Indemnified Parties shall be entitled to indemnity hereunder from Sellers herdunder only with respect to any such amounts in excess of Two Hundred Fifty Thousand Dollars ($250,000). Notwithstanding anything in this Agreement to the General Basket Amount; provided that such limitation shall not apply to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.1 (Organizationcontrary, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property), Section 3.4(d) (Personal Property) and Section 3.12 (Taxes). (ii) The Sellers' maximum aggregate obligation of Sellers to indemnify any Buyer Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification (A) pursuant to Section 7.2(a)(ii) shall not exceed Two Hundred Fifty Million Dollars ($250,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.1 (Organization, Good Standing, Authority and Capitalization), Section 3.4(a) (Real Property) and Section 3.4(d) (Personal Property), (B) pursuant to Section 7.2(a)(ii), Section 7.2(a)(vii) and Section 7.2(a)(viii) shall not exceed, in the aggregate, Ninety Million Dollars ($90,000,000) with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.3 (Environmental Matters) and Section 3.10 (Labor and Employment Matters; ERISA), for Specified Pre-Signing Environmental Matters and for Specified Pre-Closing Environmental Matters, respectively, (C) pursuant to Section 7.2(a)(ii) shall be unlimited with respect to Indemnifiable Damages based on a breach of a representation or warranty set forth in Section 3.12 (Taxes) and (D) pursuant to Section 7.2(a)(ii), Section 7.2(a)(iv) and Section 7.2(a)(ix) shall not exceed Twenty-Five Million Dollars ($25,000,000) with respect to Indemnifiable Damages for any other breach of a representation or warranty, for Pre-Closing Service Matters and for the matters set forth on Schedule 7.2(a)(ix), respectively; provided that, with respect to Indemnifiable Damages for indemnification pursuant to clause (B) in this clause (ii), subject to the limitation contained in Section 7.2(g)(i) above and the aggregate limit set forth in clause (B) of this clause (ii), Sellers and Buyers shall contribute and share in each item of Indemnifiable Damages pursuant to such clause (B) as follows: Beginning with the Closing Date through the first anniversary of the Closing Date Sellers shall bear 100% and Buyers shall bear 0% of each item of Indemnifiable Damages Beginning after the first anniversary of the Closing Date through the second anniversary of the Closing Date Sellers shall bear 75% and Buyers shall bear 25% of each item of Indemnifiable Damages After the second anniversary of the Closing Date Sellers shall bear 50% and Buyers shall bear 50% of each item of Indemnifiable Damages (iii) The liability of either Sellers or Buyers under this Section 7.2 shall (A) be offset dollar for dollar by any cash recovery actually made (net of reasonable out-of-pocket expenses incurred in obtaining such recovery and, in the case of insurers, the amount of any retrospective or other current increase in premium that is directly attributable to the payment of such cash recovery) by the Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, from any unaffiliated third party (including insurers) on account of the item of Indemnifiable Damages involved (and no right of subrogation shall accrue to any such third party), and (B) be offset by any Tax benefit (net of Taxes, the reasonable out-of-pocket expenses incurred in obtaining such benefit and any Tax detriment) inuring to the indemnified party therefrom and realized in the taxable year in which the Indemnifiable Damages were incurred. The parties hereto agree to pursue diligently and in good faith any recovery from any such third party with respect to any item of Indemnifiable Damages involved unless such party determines that the pursuit of such recovery would not be likely to result in any substantial net recovery, but payments for Indemnifiable Damages shall not be postponed pending any such receipts or recoveries. Any such receipts or recoveries received by an indemnified party after a payment for Indemnifiable Damages shall be promptly paid over to the Indemnitor in an amount not to exceed the amount paid by the Indemnitor to the indemnified party with respect to such item of Indemnifiable Damages. (iv) The maximum aggregate obligation of Buyers to indemnify any Seller Indemnified Parties with respect to any Indemnifiable Damages as to which such persons are otherwise entitled to indemnification pursuant to Section 7.2(b)(ii) shall not exceed Seventy-Five Million Dollars ($75,000,000).. ----------- (viii) Buyer shall not be obligated hereunder to indemnify Sellers with respect to any liabilities, losses, claims, judgments, damages, expenses and costs as to which Sellers is otherwise entitled to indemnification under this Agreement unless and until the aggregate amount of indemnification so asserted exceeds Two Hundred Fifty Thousand Dollars ($250,000), and thereafter Sellers shall be entitled to indemnity from Buyer hereunder only with respect to any amounts in excess of Two Hundred Fifty Thousand Dollars ($250,000). Notwithstanding anything in this Agreement to the contrary, none Buyer's maximum aggregate obligation to Sellers pursuant to this Section 7.2 shall not exceed ----------- Seventy-Five Million Dollars ($75,000,000). (iv) The liability of any indemnifying party under this Section 7.2 ----------- shall be offset dollar for dollar by: (a) any insurance proceeds received or recoverable by the indemnified party after the Closing in respect of the foregoing limitations shall apply in item of Indemnifiable Damages involved, (b) any other recovery made or recoverable by the case indemnified party from any third party on account of fraud, criminal activity, the item of Indemnifiable Damages involved; (c) any actual tax benefit realizable by the indemnified party or intentional misconductany affiliate thereof on account of the item of Indemnifiable Damages involved; and (d) any adjustment to the Purchase Price on account of the item of Indemnifiable Damages involved.