Common use of Certain Limitations and Qualifications Clause in Contracts

Certain Limitations and Qualifications. (a) The Buyer Indemnified Parties may not assert any claim for Damages pursuant to Section 9.2(b) (a “General Claim”) against Seller, and Seller shall not be liable for any General Claims or Damages attributable thereto (“General Claim Damages”), unless and until the aggregate amount of all General Claim Damages exceeds $122,500.00 (such amount, the “Indemnity Basket”). If the aggregate amount of all General Claim Damages exceeds the Indemnity Basket, the Buyer Indemnified Parties may recover General Claim Damages from Seller to the extent, and only to the extent, the aggregate amount of all General Claim Damages exceeds the Indemnity Basket, and then from, and only to the extent of, the Indemnity Escrow Balance (if any). Notwithstanding anything to the contrary set forth herein, and for the avoidance of doubt: (i) in no event shall Seller have any liability or obligation for General Claims or General Claim Damages beyond the Indemnity Escrow Balance, if any; and (ii) the sole recourse of the Buyer Indemnified Parties for General Claims and General Claim Damages shall be limited to (A) recovery from the Indemnity Escrow Balance, if any, and (B) recovery from the R&W Policy (subject to the terms thereof, including all exclusions, retentions and policy limits). (b) In the event the Buyer Indemnified Parties have any claims for Damages pursuant to Section 9.2(a) (“Fundamental Claims”), such Fundamental Claims and the Damages relating thereto (“Fundamental Claims Damages”) shall be satisfied: (i) first, from and to the extent of the Indemnity Escrow Balance, if any; (ii) second, by Seller until the aggregate amount of all Fundamental Claims Damages and all General Claims Damages equals the RWI Retention; (iii) third, by recovery from the R&W Policy (subject to the terms thereof, including all exclusions, retentions and policy limits); and (iv) fourth, by Seller. (c) Without limiting the generality of the foregoing, and notwithstanding anything to the contrary set forth herein, in no event shall Seller be liable to the Buyer Indemnified Parties for Damages under this Article IX (except pursuant to Section 9.2(c) with respect to the Restrictive Covenant Agreements) to the extent such Damages are greater than the portion of the Purchase Price actually received by Seller. (d) For purposes of determining (i) whether an inaccuracy in or breach of any representation or warranty contained herein exists (including for purposes of the R&W Policy) and (ii) the amount of Damages that arise out of such inaccuracy or breach, any qualification as to “materiality” or “material adverse effect” (including the word “material” or “Material Adverse Effect”) shall be disregarded.

Certain Limitations and Qualifications. (a) The Buyer Indemnified Except in the case of fraud, intentional misrepresentation or willful misconduct, the Seller Parties may not assert any claim for Damages pursuant to Section 9.2(b) (a “General Claim”) against Seller, and Seller shall not be liable to the Buyer Indemnitees for any General Claims or Damages attributable thereto indemnification under Section 7.02(a) (“General Claim Damages”other than with respect to Fundamental Representations, the Tax Representations and the representations contained in Section 4.12 (Inventory), unless and ) until the aggregate amount of all General Claim Damages Losses in respect of indemnification under Section 7.02(a) (including in respect of Fundamental 27 DM3\7875356.18 Representations, the Tax Representations and the representations contained in Section 4.12 (Inventory)) exceeds $122,500.00 200,000 (such amount, the “Indemnity Basket”). If , in which event the Seller Parties shall be liable for and required to pay all such Losses from the first dollar. (b) Except in the case of fraud, intentional misrepresentation or willful misconduct, (i) the aggregate amount of all General Claim Damages exceeds Losses for which the Indemnity BasketSeller Parties shall be liable pursuant to Section 7.02(a) (other than with respect to Fundamental Representations, the Buyer Indemnified Parties may recover General Claim Damages from Seller to Tax Representations and the extentrepresentations contained in Section 4.12 (Inventory)) shall not exceed ten percent (10%) of the Purchase Price, and only to the extent, (ii) the aggregate amount of all General Claim Damages exceeds Losses for which the Indemnity Basket, and then from, and only to the extent of, the Indemnity Escrow Balance (if any). Notwithstanding anything to the contrary set forth herein, and for the avoidance of doubt: (i) in no event shall Seller have any liability or obligation for General Claims or General Claim Damages beyond the Indemnity Escrow Balance, if any; and (ii) the sole recourse of the Buyer Indemnified Parties for General Claims and General Claim Damages shall be limited liable pursuant to Section 7.02 (Aother than Section 7.02(e)) recovery from shall not exceed the Indemnity Escrow Balance, if any, and (B) recovery from the R&W Policy (subject to the terms thereof, including all exclusions, retentions and policy limits)full Purchase Price. (bc) In Except in the event case of fraud, intentional misrepresentation or willful misconduct, Buyer shall not be liable to the Buyer Indemnified Parties have any claims Seller Indemnitees for Damages pursuant to indemnification under Section 9.2(a7.03(a) (“other than with respect to Fundamental Claims”), such Fundamental Claims and the Damages relating thereto (“Fundamental Claims Damages”Representations) shall be satisfied: (i) first, from and to the extent of the Indemnity Escrow Balance, if any; (ii) second, by Seller until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) (including in respect of Fundamental Claims Damages Representations) exceeds the Basket, in which event Seller shall be liable for and required to pay all General Claims Damages equals the RWI Retention; (iii) third, by recovery such Losses from the R&W Policy (subject to the terms thereof, including all exclusions, retentions and policy limits); and (iv) fourth, by Seller. (c) Without limiting the generality of the foregoing, and notwithstanding anything to the contrary set forth herein, in no event shall Seller be liable to the Buyer Indemnified Parties for Damages under this Article IX (except pursuant to Section 9.2(c) with respect to the Restrictive Covenant Agreements) to the extent such Damages are greater than the portion of the Purchase Price actually received by Sellerfirst dollar. (d) For purposes Except in the case of determining fraud, intentional misrepresentation or willful misconduct, (i) the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.03(a) (other than with respect to Fundamental Representations) shall not exceed ten percent (10%) of the Purchase Price, and (ii) aggregate amount of all such Losses for which Buyer shall be liable pursuant to Section 7.03 shall not exceed the full Purchase Price. (e) Notwithstanding the foregoing, (i) the limitations set forth in Section 7.04(a), Section 7.04(b)(i), Section 7.04(c) and Section 7.04(d)(i) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Fundamental Representations, the Tax Representations or the representations contained in Section 4.12 (Inventory), and (ii) the limitations set forth in Section 7.04(b)(ii) shall not apply to claims for indemnification pursuant to Section 7.02(e). (f) In determining whether an inaccuracy in or breach of any representation or warranty contained herein exists (including has occurred for purposes of the R&W PolicySection 7.02(a) and (iior Section 7.03(a) or the amount of Damages that arise out of such inaccuracy or breachLosses arising therefrom, any qualification and all references to materiality qualifications such as to “materiality” or “material adverse effect” (including the word “material” or “Material Adverse Effect”) ,” “material,” “materially,” “in all material respects” or similar qualifiers contained in any such representation or warranty shall be disregarded; provided however, this sub-section (f) shall not apply to Section 4.23. (g) Each Indemnified Party shall take, and cause its Affiliates to take, reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. 28 DM3\7875356.18