Common use of Loss Limitations Clause in Contracts

Loss Limitations. (i) With respect to claims for Losses based upon any Sellers or the Company’s representations and warranties arising under Section 9.01(a)(i) or Section 9.01(b)(i), Sellers will not be liable for any such Losses until the aggregate amount of all such Losses exceeds $ [**********] (the “Deductible”), at which point Sellers shall become liable for all Losses under Section 9.01(a)(i) or Section 9.01(b)(i) that are in excess of the Deductible; provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article III or Article IV) or based on fraud, intentional or knowing misrepresentation or willful breach. With respect to claims for Losses based upon any of the Company’s representations and warranties arising under Section 9.01(a)(i), Sellers will not be liable for any Losses in excess of $ [**********] (the “Rep Cap”); provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article III) or based on fraud, intentional or knowing misrepresentation or willful breach. With respect to claims for Losses based upon any Seller’s representations and warranties arising under Section 9.01(b)(i), such Seller will not be liable for any Losses in excess of the Seller’s indemnification percentage (as set forth in the Funds Flow) of the Rep Cap; provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article IV) or based on fraud, intentional or knowing misrepresentation or willful breach. Sellers or such Seller (as applicable) will not be liable for Losses (i) under Section 9.01(a) but with respect to Section 9.01(a)(i), solely with respect to breaches of the Fundamental Representations set forth in Article III) in excess of the aggregate amount of $ [**********], and (ii) under Section 9.01(b) (but with respect to Section 9.01(b)(i), solely with respect to breaches of the Fundamental Representations set forth in Article IV) in excess of such Seller’s indemnification percentage (as set forth on Funds Flow) of $ [**********] (in each case, the “Cap”); provided that the shall not apply to claims based on fraud, intentional or knowing misrepresentation or willful breach. Notwithstanding anything to the contrary herein, no Seller that is designated as a small minority investor shall be liable under Section 9.01(a) for any Losses which exceed the aggregate amount of the Aggregate Consideration received by such Seller that is a small minority investor plus such Seller’s pro-rata portion of the 2021 Earn-out or the 2▇▇▇ ▇▇▇▇-▇▇▇ (if any). (ii) For purposes of determining (A) whether a breach of a representation or warranty exists for purposes of this Article IX and (B) the amount of any Losses in connection with such a breach for which an Indemnified Party is entitled to indemnification under this Agreement (including for determining whether the Deductible has been exceeded), each representation or warranty contained in this Agreement shall be read without giving effect to any qualification that is based on materiality, including the words “material”, “Material Adverse Effect”, “Parent Material Adverse Effect”, “in any material respect” and other uses of the word “material” or words of similar meaning (and shall be treated as if such words were deleted from such representation or warranty). (iii) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of (A) any investigation made by or on behalf of the Indemnified Party, or (B) the fact that the Indemnified Party knew or should have known that any such representation or warranty is, was or might be inaccurate. (iv) Notwithstanding anything to the contrary in this Agreement, and without limiting the effect of any other limitation contained in this Article IX, for purposes of computing the amount of any Losses incurred by any Indemnified Party under this Article IX, the amount of any Losses recoverable hereunder shall be reduced by an amount equal to the amount of any insurance proceeds that have been actually received by any Indemnified Party in connection with such Losses which, had they been received prior to the recovery of Losses by the Indemnified Party from the Indemnifying Party would have reduced the amount of the indemnifiable Losses that would have been paid by the Indemnifying Party for such indemnification claim; provided, however, nothing herein shall require any Indemnified Party to seek recovery for Losses from its insurance policies (or to maintain any such insurance policies). To the extent any such insurance proceeds are received by the Indemnified Party or its applicable Affiliate or designee after any indemnification claim has been paid by the Indemnifying Party, the Indemnified Party shall, within 10 days following its receipt thereof, pay to the Indemnifying Party the applicable portion of such insurance proceeds, if any, received in connection with such indemnification claim (not to exceed the amount of Losses from such indemnification claim). Nothing in this Agreement in any way restricts or limits the general obligation under existing Law of an Indemnified Party to take reasonable measures to mitigate any loss which it may suffer or incur by reason of the breach by an Indemnifying Party of any representation, warranty, covenant, agreement or obligation under this Agreement. (v) Losses shall be calculated based on the amount of Loss that remains after deducting therefrom any Tax benefit received by the Indemnified Party or its Affiliates. If an Indemnified Party realizes a Tax benefit described above that was not included in the computation of a Loss for which Indemnified Party was indemnified, the Indemnified Party shall within ten (10) Business Days of filing the Tax Return claiming such Tax benefit (or, to the extent such Tax benefit is in the form of a refund, within ten (10) Business Days of receiving such refund from the applicable Tax authority) pay to the Sellers’ Representative (for distribution to the Sellers) the amount of such Tax benefit. Without limitation of the foregoing, Buyer shall take commercially reasonable actions (and shall cause the Company to take commercially reasonable actions) to timely claim any Tax benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the Sellers, under this Section 9.03(c)(v). (vi) Notwithstanding anything to the contrary in this Agreement, (i) no Seller shall have any right of contribution against the Company, any Company Entity, Parent, Buyer or any of their Affiliates with respect to any obligations of, or claims against such Seller under or with respect to this Agreement or the transactions contemplated hereby and (ii) no Seller shall have any indemnification (including, without limitation, as contemplated under Section 9.08(a)) or reimbursement rights against the Company or any Company Entity arising from any claims which would also give rise to an indemnification claim under Section 9.01(a) (collectively, a “Released Indemnifiable Claim”). For purposes of clarity the Sellers shall have right of contribution against other Sellers pursuant to a contribution agreement to be entered into among the Sellers. (vii) With respect to claims for Losses under Section 9.01(a)(v), Sellers will not be liable for any such Losses until the aggregate amount of all such Losses under Section 9.01(v) exceeds $ [**********] at which point the Sellers shall become liable for-all Losses under Section 9.01(a)(v) which exceed such amount; provided that this limitation shall not apply to claims based on fraud, intentional or knowing ’misrepresentation or willful breach.

Loss Limitations. (i) With respect to claims for Losses based upon any Sellers or the Company’s representations and warranties arising under Section 9.01(a)(i) or Section 9.01(b)(i), Sellers will not be liable for any such Losses until the aggregate amount of all such Losses exceeds $ [**********] (the “Deductible”), at which point Sellers shall become liable for all Losses under Section 9.01(a)(i) or Section 9.01(b)(i) that are in excess of the Deductible; provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article III or Article IV) or based on fraud, intentional or knowing misrepresentation or willful breach. With respect to claims for Losses based upon any of the Company’s representations and warranties arising under Section 9.01(a)(i), Sellers will not be liable for any Losses in excess of $ [**********] (the “Rep Cap”); provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article III) or based on fraud, intentional or knowing misrepresentation or willful breach. With respect to claims for Losses based upon any Seller’s representations and warranties arising under Section 9.01(b)(i), such Seller will not be liable for any Losses in excess of the Seller’s indemnification percentage (as set forth in the Funds Flow) of the Rep Cap; provided that this limitation shall not apply to claims based on Fundamental Representations (set forth in Article IV) or based on fraud, intentional or knowing misrepresentation or willful breach. Sellers or such Seller (as applicable) will not be liable for Losses (i) under Section 9.01(a) (but with respect to Section 9.01(a)(i), solely with respect to breaches of the Fundamental Representations set forth in Article III) in excess of the aggregate amount of $ [**********], and (ii) under Section 9.01(b) (but with respect to Section 9.01(b)(i), solely with respect to breaches of the Fundamental Representations set forth in Article IV) in excess of such Seller’s indemnification percentage (as set forth on Funds Flow) of $ [**********] (in each case, the “Cap”); provided that the Cap shall not apply to claims based on fraud, intentional or knowing misrepresentation or willful breach. Notwithstanding anything . (ii) With respect to the contrary hereinclaims for Losses under Section 9.01(a)(v), no Seller that is designated as a small minority investor shall Sellers will not be liable under Section 9.01(a) for any such Losses which exceed until the aggregate amount of all such Losses under Section 9.01(v) exceeds at which point the Aggregate Consideration received by Sellers shall become liable for all Losses under Section 9.01(a)(v) which exceed such Seller amount; provided that is a small minority investor plus such Seller’s pro-rata portion of the 2021 Earn-out this limitation shall not apply to claims based on fraud, intentional or the 2▇▇▇ ▇▇▇▇-▇▇▇ (if any)knowing misrepresentation or willful breach. (iiiii) For purposes of determining (A) whether a breach of a representation or warranty exists for purposes of this Article IX and (B) the amount of any Losses in connection with such a breach for which an Indemnified Party is entitled to indemnification under this Agreement (including for determining whether the Deductible has been exceeded), each representation or warranty contained in this Agreement shall be read without giving effect to any qualification that is based on materiality, including the words “material”, “Material Adverse Effect”, “Parent Material Adverse Effect”, “in any material respect” and other uses of the word “material” or words of similar meaning (and shall be treated as if such words were deleted from such representation or warranty). (iiiiv) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of (A) any investigation made by or on behalf of the Indemnified Party, or (B) the fact that the Indemnified Party knew or should have known that any such representation or warranty is, was or might be inaccurate. (ivv) Notwithstanding anything to the contrary in this Agreement, and without limiting the effect of any other limitation contained in this Article IX, for purposes of computing the amount of any Losses incurred by any Indemnified Party under this Article IX, the amount of any Losses recoverable hereunder shall be reduced by an amount equal to the amount of any insurance proceeds that have been actually received by any Indemnified Party in connection with such Losses which, had they been received prior to the recovery of Losses by the Indemnified Party from the Indemnifying Party would have reduced the amount of the indemnifiable Losses that would have been paid by the Indemnifying Party for such indemnification claim; provided, however, nothing herein shall require any Indemnified Party to seek recovery for Losses from its insurance policies (or to maintain any such insurance policies). To the extent any such insurance proceeds are received by the Indemnified Party or its applicable Affiliate or designee after any indemnification claim has been paid by the Indemnifying Party, the Indemnified Party shall, within 10 days following its receipt thereof, pay to the Indemnifying Party the applicable portion of such insurance proceeds, if any, received in connection with such indemnification claim (not to exceed the amount of Losses from such indemnification claim). Nothing in this Agreement in any way restricts or limits the general obligation under existing Law of an Indemnified Party to take reasonable measures to mitigate any loss which it may suffer or incur by reason of the breach by an Indemnifying Party of any representation, warranty, covenant, agreement or obligation under this Agreement. (vvi) Losses shall be calculated based on the amount of Loss that remains after deducting therefrom any Tax benefit received by the Indemnified Party or its Affiliates. If an Indemnified Party realizes a Tax benefit described above that was not included in the computation of a Loss for which Indemnified Party was indemnified, the Indemnified Party shall within ten (10) Business Days of filing the Tax Return claiming such Tax benefit (or, to the extent such Tax benefit is in the form of a refund, within ten (10) Business Days of receiving such refund from the applicable Tax authority) pay to the Sellers’ Seller Representative (for distribution to the Sellers) the amount of such Tax benefit. Without limitation of the foregoing, Buyer shall take commercially reasonable actions (and shall cause the Company to take commercially reasonable actions) to timely claim any Tax benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the Sellers, under this Section 9.03(c)(v9.03(c)(vi). (vivii) Notwithstanding anything to the contrary in this Agreement, (i) no Seller shall have any right of contribution against the Company, any Company Entity, Parent, Buyer or any of their Affiliates with respect to any obligations of, or claims against such Seller under or with respect to this Agreement or the transactions contemplated hereby and (ii) no Seller shall have any indemnification (including, without limitation, as contemplated under Section 9.08(a)9.08) or reimbursement rights against the Company or any Company Entity arising from any claims which would also give rise to an indemnification claim under Section 9.01(a) (collectively, a “Released Indemnifiable Claim”). For purposes of clarity the Sellers shall have right of contribution against other Sellers pursuant to a contribution agreement to be entered into among the Sellers. (vii) With respect to claims for Losses under Section 9.01(a)(v), Sellers will not be liable for any such Losses until the aggregate amount of all such Losses under Section 9.01(v) exceeds $ [**********] at which point the Sellers shall become liable for-all Losses under Section 9.01(a)(v) which exceed such amount; provided that this limitation shall not apply to claims based on fraud, intentional or knowing ’misrepresentation or willful breach.