Common use of Certain Limitations and Exceptions Clause in Contracts

Certain Limitations and Exceptions. Notwithstanding the foregoing: (a) Neither Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”), but for this Section 9.8, exceeds $25,000 in the aggregate, in which event Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), be entitled to recover for all Losses on Eligible Claims, including as to the initial $25,000 of Losses; provided, however, that the limitations set forth in this Section 9.8(a), shall not be applicable to any claim for Losses relating to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any inaccuracy in or breach of a Fundamental Representation, (iv) with regard to Seller, the Excluded Assets and Excluded Liabilities, (v) with regard to Buyer, the Acquired Assets and Assumed Liabilities (vi) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (vii) willful misrepresentation or fraud. (b) Neither Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX for any inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, to the extent that the aggregate recovery by Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, on account of Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, exceeds the Purchase Price; provided, however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior to the first anniversary of the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) shall not apply to recovery for an Eligible Claim relating to (v) legal proceedings that are based on any facts and circumstances arising prior to the Closing, (w) any inaccuracy in or breach of a Fundamental Representation, (x) Excluded Liabilities, (y) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (z) willful misrepresentation or fraud.

Certain Limitations and Exceptions. Notwithstanding the foregoing: (ai) Neither The Buyer Indemnified Parties nor the Seller Indemnified Parties shall not be entitled to recover under the provisions of this Article IX for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”), but for this Section 9.8, exceeds $25,000 in the aggregate, in which event Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), be entitled to recover for all Losses on Eligible Claims, including as to the initial $25,000 of Losses; provided, however, that the limitations set forth in this Section 9.8(a), shall not be applicable to any claim for Losses relating to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any inaccuracy in or breach of a Fundamental Representation, (iv) with regard to Seller, the Excluded Assets and Excluded Liabilities, (v) with regard to Buyer, the Acquired Assets and Assumed Liabilities (vi) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (vii) willful misrepresentation or fraud. (b) Neither Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX 10 for any inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(aSections 10(a)(i), as applicable, to the extent that until the aggregate recovery by amount which all Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would be entitled to recover on account of thereof, but for this Section 9.1, Section 9.2(a) or Section 9.3(a10(e)(i), as applicableexceeds $500,000 in the aggregate (when combined with such amounts the buyer indemnified parties under the Merger Agreement would be entitled to recover pursuant to Section 10.1(a) of the Merger Agreement) (the “Basket”), exceeds in which event the Purchase PriceBuyer Indemnified Parties shall be entitled to recover for all such Losses (and not merely the portion of the Losses exceeding the Basket); provided, provided however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior to the first anniversary of the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) Basket shall not apply to (A) recovery for an Eligible Claim relating to inaccuracy in or breach of any Fundamental Representation; (vB) legal proceedings that are recovery for any amounts in connection with any action or claim based on any facts and circumstances arising prior to the Closing, upon Fraud; or (wC) any claims pursuant to Sections 10(a)(ii) through (viii). (ii) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this Section 10 for inaccuracy in or breach of a representation or warranty pursuant to Sections 10(a)(i) (when combined with such indemnification amounts paid by the sellers under the Merger Agreement pursuant to Section 10.1(a) of the Merger Agreement) in excess of the Cap; provided however, that the Cap shall not apply to (A) recovery for an inaccuracy in or breach of any Fundamental Representation, ; (xB) Excluded Liabilities, recovery for any amounts in connection with any action or claim based upon Fraud; or (yC) breaches any claims pursuant to Sections 10(a)(ii) through (viii). (iii) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this Section 10 for Environmental Conditions pursuant to Section 10(a)(viii) and the specific environmental indemnity on Schedule 10(a)(vii) (when combined with such indemnification amounts paid by the sellers under the Merger Agreement pursuant to Section 10.1(h) and Section 10.1(g) of the Merger Agreement) in excess of $50,000,000 (“Environmental Cap”). (iv) The Buyer Indemnified Parties shall not be entitled to recover under the provisions of this Section 10 to the extent the Losses relating to the matter were included as a Liability in the calculation of the Final Net Working Capital under the Merger Agreement. (v) Payments by an Indemnifying Party pursuant to Section 10(a) or 10(b) in respect of any covenants Loss shall be (i) reduced by the amount of Seller or any net Tax benefit actually realized by the Seller Principals under this Agreement or Indemnified Parties in connection with the Loss and (ii) increased by the amount of any other Transaction DocumentTax imposed on receipt of such indemnity payment (which for purposes of clarity takes into account any Tax detriment to such Indemnified Party). (vi) For purposes of determining whether any Loss has occurred, or (z) willful misrepresentation calculating any Losses arising, directly or fraudindirectly, from or in connection with a breach of a representation, warranty, covenant or agreement, all references to “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or similar phrases or qualifiers contained in such representations and warranties shall be disregarded.

Certain Limitations and Exceptions. Notwithstanding the foregoing: (ai) Neither The Buyer Indemnified Parties nor the Seller Indemnified Parties shall not be entitled to recover under the provisions of this Article IX for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”), but for this Section 9.8, exceeds $25,000 in the aggregate, in which event Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), be entitled to recover for all Losses on Eligible Claims, including as to the initial $25,000 of Losses; provided, however, that the limitations set forth in this Section 9.8(a), shall not be applicable to any claim for Losses relating to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any inaccuracy in or breach of a Fundamental Representation, (iv) with regard to Seller, the Excluded Assets and Excluded Liabilities, (v) with regard to Buyer, the Acquired Assets and Assumed Liabilities (vi) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (vii) willful misrepresentation or fraud. (b) Neither Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX 10 for any inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(aSections 10(a)(i), as applicable, to the extent that until the aggregate recovery by amount which all Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would be entitled to recover on account of thereof, but for this Section 9.1, Section 9.2(a) or Section 9.3(a10(e)(i), as applicableexceeds $500,000 in the aggregate (when combined with such amounts the buyer indemnified parties under the Merger Agreement would be entitled to recover pursuant to Section 10.1(a) of the Merger Agreement) (the “Basket”), exceeds in which event the Purchase PriceBuyer Indemnified Parties shall be entitled to recover for all such Losses (and not merely the portion of the Losses exceeding the Basket); provided, provided however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior to the first anniversary of the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) Basket shall not apply to (A) recovery for an Eligible Claim relating to inaccuracy in 42718402 or breach of any Fundamental Representation; (vB) legal proceedings that are recovery for any amounts in connection with any action or claim based on any facts and circumstances arising prior to the Closing, upon Fraud; or (wC) any claims pursuant to Sections 10(a)(ii) through (viii). (ii) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this Section 10 for inaccuracy in or breach of a representation or warranty pursuant to Sections 10(a)(i) (when combined with such indemnification amounts paid by the sellers under the Merger Agreement pursuant to Section 10.1(a) of the Merger Agreement) in excess of the Cap; provided however, that the Cap shall not apply to (A) recovery for an inaccuracy in or breach of any Fundamental Representation, ; (xB) Excluded Liabilities, recovery for any amounts in connection with any action or claim based upon Fraud; or (yC) breaches any claims pursuant to Sections 10(a)(ii) through (viii). (iii) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this Section 10 for Environmental Conditions pursuant to Section 10(a)(viii) and the specific environmental indemnity on Schedule 10(a)(vii) (when combined with such indemnification amounts paid by the sellers under the Merger Agreement pursuant to Section 10.1(h) and Section 10.1(g) of the Merger Agreement) in excess of $50,000,000 (“Environmental Cap”). (iv) The Buyer Indemnified Parties shall not be entitled to recover under the provisions of this Section 10 to the extent the Losses relating to the matter were included as a Liability in the calculation of the Final Net Working Capital under the Merger Agreement. (v) Payments by an Indemnifying Party pursuant to Section 10(a) or 10(b) in respect of any covenants Loss shall be (i) reduced by the amount of Seller or any net Tax benefit actually realized by the Seller Principals under this Agreement or Indemnified Parties in connection with the Loss and (ii) increased by the amount of any other Transaction DocumentTax imposed on receipt of such indemnity payment (which for purposes of clarity takes into account any Tax detriment to such Indemnified Party). (vi) For purposes of determining whether any Loss has occurred, or (z) willful misrepresentation calculating any Losses arising, directly or fraudindirectly, from or in connection with a breach of a representation, warranty, covenant or agreement, all references to “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or similar phrases or qualifiers contained in such representations and warranties shall be disregarded.

Certain Limitations and Exceptions. Notwithstanding the foregoing: (a) Neither the Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX ARTICLE VI for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a6.1(a) or Section 9.3(a6.2(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”)thereof, but for this Section 9.86.7, exceeds $25,000 250,000 in the aggregate, in which event the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), shall be entitled to recover for all Losses on Eligible Claims, including as to the initial $25,000 of Losses; provided, however, that the limitations set forth in this Section 9.8(a), foregoing limitation shall not be applicable apply to any claim recovery for Losses relating to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any an inaccuracy in or breach of a Fundamental Representationrepresentation or warranty contained in Section 3.1, (iv) with regard to Seller3.2, the Excluded Assets and Excluded Liabilities3.6(b), (v) with regard to Buyer3.7, the Acquired Assets and Assumed Liabilities (vi) breaches of 3.15, 3.17, 3.23, 3.24, 3.25, 3.26 or 3.27 or in any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (vii) willful misrepresentation or fraudRestricted Stock Agreement. (b) Neither Buyer Indemnified Parties nor the The Seller Indemnified Parties shall not be entitled to recover under the provisions of this Article IX ARTICLE VI for any inaccuracy in or breach of a representation or warranty warranty, pursuant to Section 9.16.2 or otherwise in connection with this Agreement if the aggregate claims actually paid by Buyer on account thereof exceed $12,900,000. (c) Subject to Section 6.8, the Buyer Indemnified Parties’ and their Affiliates’ sole recourse against the Selling Parties and the LLC Owners for (i) Losses indemnified pursuant to Section 9.2(a6.1, (ii) for breach of any representations, warranties and covenants in the Transaction Documents and (iii) for any other Losses or Section 9.3(a), as applicable, liabilities arising from or related to the extent that Transaction Documents, shall be to the aggregate recovery by Escrowed Amounts in accordance with this Agreement and the Escrow Agreement, and the Selling Parties and the LLC Owners shall have no liability to the Buyer Indemnified Parties or their Affiliates in excess of such amounts. Each Selling Party and each LLC Owner acknowledges and agrees that all of the Escrowed Amounts may be used to satisfy any and all payment or reimbursement obligations of Seller Indemnified Partiespursuant to Section 6.1, as applicable, on account of Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, exceeds the Purchase Price; provided, however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior subject to the first anniversary terms and conditions of this ARTICLE VI and the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) shall not apply to recovery for an Eligible Claim relating to (v) legal proceedings that are based on any facts and circumstances arising prior to the Closing, (w) any inaccuracy in or breach of a Fundamental Representation, (x) Excluded Liabilities, (y) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (z) willful misrepresentation or fraudEscrow Agreement.

Certain Limitations and Exceptions. Notwithstanding the foregoing: (a) Neither The Buyer Indemnified Parties nor the Seller Indemnified Parties shall not be entitled to recover under the provisions of this Article IX for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”), but for this Section 9.8, exceeds $25,000 in the aggregate, in which event Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), be entitled to recover for all Losses on Eligible Claims, including as to the initial $25,000 of Losses; provided, however, that the limitations set forth in this Section 9.8(a), shall not be applicable to any claim for Losses relating to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any inaccuracy in or breach of a Fundamental Representation, (iv) with regard to Seller, the Excluded Assets and Excluded Liabilities, (v) with regard to Buyer, the Acquired Assets and Assumed Liabilities (vi) breaches of any covenants of Seller or the Seller Principals under this Agreement or any other Transaction Document, or (vii) willful misrepresentation or fraud. (b) Neither Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX ARTICLE X for any inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(a) or Section 9.3(aSections 10.1(a), as applicable, to the extent that until (i) the aggregate recovery by amount which all Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would be entitled to recover on account of thereof, but for this Section 9.1, Section 9.2(a) or Section 9.3(a10.7(a), as applicableexceeds $500,000 in the aggregate (the “Basket”), exceeds in which event the Purchase PriceBuyer Indemnified Parties shall be entitled to recover for all such Losses (and not merely the portion of the Losses exceeding the Basket); provided, provided however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior to the first anniversary of the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) Basket shall not apply to (i) recovery for an Eligible Claim relating to inaccuracy in or breach of any Fundamental Representation; (vii) legal proceedings that are recovery for any amounts in connection with any action or claim based on any facts and circumstances arising prior to the Closing, upon Fraud; or (wiii) any claims pursuant to Sections 10.1(b) through 10.1(h). (b) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this ARTICLE X for inaccuracy in or breach of a representation or warranty pursuant to Sections 10.1(a) in excess of the Cap; provided however, that the Cap shall not apply to (i) recovery for an inaccuracy in or breach of any Fundamental Representation, ; (xii) Excluded Liabilities, recovery for any amounts in connection with any action or claim based upon Fraud; or (yiii) breaches any claims pursuant to Sections 10.1(b) through 10.1(h). (c) The Buyer Indemnified Parties shall not be entitled to recover Losses under the provisions of this ARTICLE X for Environmental Conditions pursuant to Section 10.1(h) and the specific environmental indemnity on Schedule 10.1(g) in excess of $50,000,000 (“Environmental Cap”). (d) The Buyer Indemnified Parties shall not be entitled to recover under the provisions of this ARTICLE X to the extent the Losses relating to the matter were included as a Liability in the calculation of the Final Net Working Capital. (e) Payments by an Indemnifying Party pursuant to Section 10.1 or 10.2 in respect of any covenants Loss shall be (i) reduced by the amount of Seller or any net Tax benefit actually realized by the Seller Principals under this Agreement or Indemnified Parties in connection with the Loss and (ii) increased by the amount of any other Transaction DocumentTax imposed on receipt of such indemnity payment (which for purposes of clarity takes into account any Tax detriment to such Indemnified Party). (f) For purposes of determining whether any Loss has occurred, or (z) willful misrepresentation calculating any Losses arising, directly or fraudindirectly, from or in connection with a breach of a representation, warranty, covenant or agreement, all references to “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or similar phrases or qualifiers contained in such representations and warranties shall be disregarded.

Certain Limitations and Exceptions. Notwithstanding the foregoing: (a) Neither the Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX VII for any claim for inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(aSections 7.1(a) or Section 9.3(a7.2(a), as applicable, until the aggregate amount which all Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, would be entitled to recover on account of all Losses relating to such claim or series of related claims (each, an “Eligible Claim”)thereof, but for this Section 9.87.7(a), exceeds $25,000 125,000.00 in the aggregateaggregate (the "Basket"), in which event the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall, subject to Section 9.8(b), shall be entitled to recover for all such Losses on Eligible Claims, including as to in excess of the initial $25,000 of LossesBasket; provided, provided however, that the limitations set forth in this Section 9.8(a), Basket shall not be applicable to any claim for Losses relating apply to (i) with regard to Buyer, legal proceedings that are based on any facts and circumstances arising prior to the Closing, (ii) with regard to Seller, legal proceedings that are based on any facts and circumstances arising subsequent to Closing, (iii) any recovery for an inaccuracy in or breach of a any Fundamental Representation, ; (ivii) recovery for any amounts in connection with regard to Seller, the Excluded Assets and Excluded Liabilities, (v) with regard to Buyer, the Acquired Assets and Assumed Liabilities (vi) breaches of any covenants of Seller action or the Seller Principals under this Agreement or any other Transaction Document, claim based upon fraud; or (viiiii) willful misrepresentation any claims pursuant to Section 7.1(b) – (e) or fraudSection 7.2(b). (b) Neither the Buyer Indemnified Parties nor the Seller Indemnified Parties shall be entitled to recover under the provisions of this Article IX VII for any inaccuracy in or breach of a representation or warranty pursuant to Section 9.1, Section 9.2(aSections 7.1(a) or Section 9.3(a7.2(a), as applicable, to the extent that after the aggregate recovery claims actually paid by Buyer Indemnified Parties Seller or the Seller Indemnified PartiesBuyer, as applicable, on account of Section 9.1, Section 9.2(a) or Section 9.3(a), as applicablethereof, exceeds $125,000.00 (the Purchase Price"Cap"); provided, provided however, that the aggregate amount of Losses that are indemnifiable under this Article IX for any breach or inaccuracy of any representations and warranties (i) shall be capped at $3,000,000 for Eligible Claims made on or prior to the first anniversary of the Closing Date, and (ii) with respect to Eligible Claims made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, shall be capped at the lesser of (x) $1,500,000 or (y) $3,000,000 minus the aggregate amount of Losses determined to be due with respect to Eligible Claims made on or prior to the first anniversary of the Closing Date; and (ii) the foregoing limitation in clause (i) Cap shall not apply to (i) recovery for an Eligible Claim relating to (v) legal proceedings that are based on any facts and circumstances arising prior to the Closing, (w) any inaccuracy in or breach of a any Fundamental Representation; (ii) recovery for any amounts in connection with any action or claim based upon fraud; or (iii) any claims pursuant to Section 7.1(b) – (e) or Section 7.2(b). Notwithstanding the foregoing, (x) Excluded Liabilities, (y) breaches in no event shall the aggregate amount of any covenants of all Losses paid in the aggregate by Seller or the Seller Principals under this Agreement Article VII exceed the Purchase Price. (c) The parties hereto acknowledge and agree that the indemnification provisions of this Article VII shall be the sole and exclusive remedy for any claim or action brought by a party hereunder (including in connection with a breach of or inaccuracy in any other Transaction Documentrepresentation or warranty contained in this Agreement), except for claims based upon fraud. (d) For purposes of determining whether any Loss has occurred, or (z) willful misrepresentation calculating any Losses arising, directly or fraudindirectly, from or in connection with a breach of a representation, warranty, covenant or agreement, all references to "material," "materiality," "in all material respects," "material adverse effect," "knowledge" or similar phrases or qualifiers contained in such representations and warranties shall be disregarded.