Common use of Limitations on Indemnification by Buyer Clause in Contracts

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification Payments pursuant to Section 7.5 shall be payable limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder. (b) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller Indemnified Party in or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect of to any breach of any representation representation, warranty or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification covenant with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller Indemnified Party with respect to any the use of intellectual property of third parties on vehicles, signage and other claims arising under provisions of Section 6.3similar usage on the Purchased Assets before or after the Closing.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification Payments pursuant to Section 6.3 when aggregated 10.5(a) shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all claims made of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims 10.5(a) shall be recoverable in accordance with adjusted to the terms hereof;extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder. (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior Notwithstanding anything herein to the relevant date contrary notwithstanding, no breach of expiration a specific state of facts any representation, warranty, covenant or agreement contained herein shall have become known which may constitute or give rise to any right on the part of Seller Warranty Claim as to which indemnity may be payable and or a Seller Indemnified Party shall have given notice of such facts to BuyerIndemnitee, then after the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice consummation of the applicable claim is given; andtransactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) The limitations herein with respect Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). (d) Any actual indemnity payment under Section 10.5 shall be determined without duplication of recovery by reason of the state of facts giving rise to Seller Warranty Claims shall not limit the rights such liability constituting a breach of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3more than one representation, warranty, covenant or agreement.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 6.3, when aggregated with all claims made under Section 6.3 of the Affiliate Agreements Agreements, shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3.

Limitations on Indemnification by Buyer. The Notwithstanding the --------------------------------------- foregoing, the right of Seller --------------------------------------- Equityholder Indemnified Parties to indemnification under Section 6.3 9.03 shall be subject to the following provisions: (a) No Subject to the exceptions set forth in Subsection 9.04(d), the Buyer's aggregate liability for indemnification under this Agreement shall not exceed an amount equal to the Cap. (b) Subject to the exceptions set forth in Subsection 9.04(d), no indemnification shall be payable pursuant to Subsection 9.03(b) above to any Seller Equityholder Indemnified Party Party, unless the cumulative amount of all claims for indemnification pursuant to Section 9.03 ("Equityholder Claims") shall exceed ------------------- the Deductible, whereupon only the amount of such claims in respect excess of such Deductible shall be recoverable by the Equityholder Indemnified Parties. For the sole purpose of calculating the amount of Equityholder Claims arising out of any breach of any representation or warranty made by Buyer or Sub, references to material adverse effect or materiality (or other correlative terms) shall be disregarded. (c) Subject to the exceptions set forth in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"Subsection 9.04(d), unless the total of all claims for no indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification payable to a Equityholder Indemnified Party with respect to Seller Warranty Claims shall expire on claims under Subsection 9.03(b) which are asserted after the Indemnification Cut-Off Expiration Date; provided, however, provided that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud if on or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration Expiration Date a specific -------- state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable a claim for indemnification under Subsection 9.03(b) and a Seller Equityholder Indemnified Party shall have given written notice to Buyer of such facts to Buyerknown by such Equityholder Indemnified Party at such time, then the right to indemnification with respect thereto to such claim shall remain in effect without regard to when such matter shall have been be finally determined and disposed of, according to the date on which notice of the applicable claim is given; and. (cd) The limitations herein with respect to Seller Warranty Claims contained in Subsections 9.04(a), 9.04(b) and 9.04(c) of this Section 9.04 shall not limit apply to the rights indemnification obligations of any Seller Indemnified Party with respect to any other claims Buyer arising under provisions Subsection 9.03(a). The limitations contained in Subsections 9.04(b) of this Section 6.39.04 shall not apply to adjustments required to be made pursuant to Sections 1.13 and 1.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) No indemnification With respect to the matters described in Section 6.2(a), Buyer will have no liability with respect to such matters until Seller Indemnitees have suffered Adverse Consequences by reason of all such breaches in excess of the Threshold, after which point Buyer will be obligated to indemnify Seller Indemnitees from and against all Adverse Consequences from dollar one; provided, that the foregoing limitations shall be payable to any Seller Indemnified Party not apply in respect of any breach Adverse Consequences relating to (a) breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or warranty made by Buyer in this Agreement, (b) any intentional or in any certificate, schedule fraudulent breach of a representation or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof;warranty. (b) Indemnification with With respect to Seller Warranty Claims the matters described in Section 6.2(a), the aggregate maximum liability of Buyer shall expire on be the Indemnification Cut-Off DateCap; provided, however, that the foregoing limitation shall not apply in respect of this clause any Adverse Consequences relating to (i) shall not apply to Seller Warranty Claims involving fraud breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or (b) any intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute or fraudulent breach of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute representation or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; andwarranty. (c) The limitations herein If any Adverse Consequences sustained by a Buyer Indemnitee are covered by an insurance policy, such Buyer Indemnitee shall use commercially reasonable efforts to collect such insurance proceeds. If a Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments prior to being indemnified with respect to Seller Warranty Claims shall not limit such Adverse Consequence under this Article 6, the rights of any Seller Indemnified Party payment under this Article 6 with respect to such Adverse Consequence shall be reduced by the amount of such insurance proceeds or indemnity, contribution or similar payments, less reasonable attorney’s fees and other reasonable expenses incurred in connection with such recovery. If a Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments after being indemnified with respect to some or all of such Adverse Consequence, such Buyer Indemnitee shall pay to the Representative (or return such amount to the Escrow Account if the Escrow Account remains in place at such time) the lesser of (i) the amount of such insurance proceeds or indemnity, contribution or similar payment, less reasonable attorney’s fees and other reasonable expenses incurred in connection with such recovery and (ii) the aggregate amount paid by the Sellers to any other claims arising under provisions of Buyer Indemnitee with respect to such Adverse Consequence. Nothing in this Section 6.36.5(c) shall neither party shall create or be deemed to create any obligation on any party hereto to obtain or maintain any specific insurance policy.

Limitations on Indemnification by Buyer. The right Notwithstanding anything contained in Section 10.2, the indemnification obligations of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be Buyer are subject to the following provisionslimitations: (a) No Buyer shall not be required to indemnify any Seller Indemnified Person in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i), unless and until the aggregate amount of all such Losses for which indemnification is being claimed equals or exceeds the Deductible (at which point Buyer shall be payable responsible for the full amount of all such Losses in excess of the Deductible); provided that the Deductible shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (b) Buyer shall not be required to indemnify the Seller Indemnified Persons in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i) to the extent that the aggregate amount of such Losses exceeds the Cap; provided that the Cap shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (c) Payments by Buyer in respect of any Loss shall be limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Seller Indemnified Persons in respect of any such claim. Notwithstanding the foregoing, nothing herein shall be construed as requiring any Seller Indemnified Person to seek recovery under insurance policies or indemnity, contribution or other similar agreements. (d) In no event shall any Buyer be liable to any Seller Indemnified Party in respect Persons for any punitive, incidental, consequential, special or indirect damages, including loss of any future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf diminution of Buyer as part of or pursuant to this Agreement, value or any third-party claim, action or proceeding asserted or instituted or arising out damages based on any type of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be recoverable in accordance with the terms hereof; (b) Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Warranty Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given; and (c) The limitations herein with respect to Seller Warranty Claims shall not limit the rights of any Seller Indemnified Party with respect to any other claims arising under provisions of Section 6.3multiple.