Common use of Certain Limitations on Remedies Clause in Contracts

Certain Limitations on Remedies. (a) Notwithstanding any of the other provisions set forth in this Agreement to the contrary (including, without limitation, this Section 6), the Administrative Agent hereby agrees, on behalf of itself and the other Secured Parties, that except as permitted pursuant to clause (b) below, it shall not, directly or indirectly, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that the Borrower shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) to the extent necessary to ensure compliance with this proviso, the Borrower shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosure). (b) The parties hereto acknowledge and agree that the foreclosure, transfer or other similar exercise of remedies (an “Enforcement Action”) by the Administrative Agent with respect to certain Pledged Stock, may, in the case of an Enforcement Action with respect to the Pledged Stock of an Issuer (an “Upper Tier Issuer”) that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer, each Grantor hereby agrees that, upon the occurrence and continuation of an Event of Default, following the written request of the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent pursuant to this Section 6.6(b) within 10 days after receipt of such request, the Administrative Agent shall be released from the obligations specified in Section 6.6(a) above in connection with any Enforcement Action with respect to the Pledged Stock of an Upper Tier Issuer relating to such a transfer request.

Certain Limitations on Remedies. (a) Notwithstanding any of the other provisions set forth in this Agreement to the contrary (including, without limitation, this Section 6), the Administrative Agent hereby agrees, on behalf of itself and the other Secured Parties, that except as permitted pursuant to clause (b) below, it shall not, directly or indirectly, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that the Parent Borrower shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) to the extent necessary to ensure compliance with this proviso, the Parent Borrower shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosure). (b) The parties hereto acknowledge and agree that the foreclosure, transfer or other similar exercise of remedies (an “Enforcement Action”) by the Administrative Agent with respect to certain Pledged Stock, may, in the case of an Enforcement Action with respect to the Pledged Stock of an Issuer (an “Upper Tier Issuer”) that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer, each Grantor hereby agrees that, upon the occurrence and continuation of an Event of Default, following the written request of the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent pursuant to this Section 6.6(b) within 10 days after receipt of such request, the Administrative Agent shall be released from the obligations specified in Section 6.6(a) above in connection with any Enforcement Action with respect to the Pledged Stock of an Upper Tier Issuer relating to such a transfer request.

Certain Limitations on Remedies. (a) Notwithstanding any of the other provisions set forth in this Agreement to the contrary (including, without limitation, this Section 6), the Administrative Agent hereby agrees, on behalf of itself and the other Secured Parties, that except as permitted pursuant to clause (b) below, it shall not, directly or indirectly, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that the Borrower REIT Entity shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) to the extent necessary to ensure compliance with this proviso, the Borrower REIT Entity shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosure). (b) The parties hereto acknowledge and agree that the foreclosure, transfer or other similar exercise of remedies (an “Enforcement Action”) by the Administrative Agent with respect to certain Pledged Stock, may, in the case of an Enforcement Action with respect to the Pledged Stock of an Issuer (an “Upper Tier Issuer”) that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer, each Grantor hereby agrees that, upon the occurrence and continuation of an Event of Default, following the written request of the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent pursuant to this Section 6.6(b) within 10 days after receipt of such request, the Administrative Agent shall be released from the obligations specified in Section 6.6(a) above in connection with any Enforcement Action with respect to the Pledged Stock of an Upper Tier Issuer relating to such a transfer request.

Certain Limitations on Remedies. (a) Notwithstanding any All representations and warranties of the Parties contained in or arising out of this Agreement or otherwise in connection herewith shall survive the Closing hereunder and shall continue in full force and effect thereafter until the {***}† anniversary of the Closing Date, except for the several but not joint representations and warranties of each of the Stockholders, Warrantholders and Eligible Optionholders in the Letters of Transmittal which will survive thereafter solely with respect to the Stockholder or Warrantholder making such representation without effect on the Escrow Amount or any other Stockholder, Warrantholder or Eligible Optionholder. All agreements and covenants contained in this Agreement and in any Transaction Documents will survive the Closing and remain in effect indefinitely. Notwithstanding anything herein to the contrary, indemnification for any claim for which written notice as provided in this Article 10 has been timely given prior to the expiration of the representation and warranty upon which such claim is based as provided herein shall not expire † Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. with respect to such claim, and such claim for indemnification may be pursued, until the final resolution of such claim in accordance with the provisions of this Article 10. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 10.5(b)), the Parent Indemnified Parties shall not be entitled to indemnification under Section 10.1(a)(i), other than as a result of any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 6.1 or 6.5, unless and until the Losses incurred by all Parent Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $250,000 (the “Basket Amount”); provided, however, that in the event that such Losses exceed the Basket Amount, the Stockholders shall fully indemnify the applicable Parent Indemnified Party for all Losses incurred by such Parent Indemnified Party subject to indemnification obligations of the Stockholders pursuant to Section 10.1(a), including the amount applied to the Basket Amount. Notwithstanding the foregoing, the Basket Amount shall not apply to Losses in connection with the following items: (i) indemnification under Sections 10.1 (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi), (a)(vii), (a)(viii) and (a)(ix) or relating to the representations in Sections 6.1 or 6.5, (ii) any claims for breach of the representations or warranties in any Letters of Transmittal or (iii) any payment required to be made out of the Escrow Amount with respect to Dissenters Rights Claims. (c) Notwithstanding anything to the contrary set forth in this Agreement (including, without limitation, but subject to the terms of this Section 610.5(b)), the Administrative Agent hereby agreesStockholders, on behalf Warrantholders and Eligible Optionholders shall not be entitled to indemnification under Section 10.2(a), other than as a result of itself any misrepresentation or breach of, or omission from, any representation or warranty contained in Sections 7.1, 7.2 and 7.3 unless and until the other Secured PartiesLosses incurred by all Stockholders, Warrantholders and Eligible Optionholders, in the aggregate, as a result thereof exceed, in the aggregate, the Basket Amount, provided, however, that except as permitted pursuant to clause (b) belowin the event that such Losses exceed the Basket Amount, it the Parent shall notfully indemnify the applicable Stockholders, directly or indirectlyWarrantholders and Eligible Optionholders for all Losses incurred by such Stockholders, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that Warrantholders and Eligible Optionholders, including the Borrower shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) amount applied to the extent necessary to ensure compliance with this provisoBasket Amount. Notwithstanding the foregoing, the Borrower Basket Amount shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates not apply to losses in connection with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosureindemnification under Section 10.2(a)(iii). (bd) The parties hereto acknowledge and agree that the foreclosuremaximum aggregate amount of all indemnifiable Losses, transfer arising out of or other similar exercise of remedies (an “Enforcement Action”) by the Administrative Agent with respect to certain Pledged Stock, may, in the case of an Enforcement Action with respect to the Pledged Stock of an Issuer (an “Upper Tier Issuer”) that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer, each Grantor hereby agrees that, upon the occurrence and continuation of an Event of Default, following the written request of the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent pursuant to this Section 6.6(b) within 10 days after receipt of such request, the Administrative Agent shall be released resulting from the obligations specified causes enumerated in Section 6.6(a) above 10.1 of this Agreement (other than for Losses resulting from or in any way in connection with any Enforcement Action with breach of the representations or warranties set forth in any Letter of Transmittal) shall not exceed the Escrow Amount. (e) With respect to any Losses arising out of or resulting from a breach of Section 6.1, only the Pledged Stock Stockholder, Warrantholder and Eligible Optionholder (and no other Person) that actually breached the “title” representation in the Letter of Transmittal shall be the Indemnifying Party and the maximum aggregate amount of indemnifiable Losses arising out of or resulting from such breach that may be recovered from the Stockholder, Warrantholder and Eligible Optionholder shall not exceed the amount of the Aggregate Initial Consideration Amount and Escrow Amount actually received by such holder; provided that any such recovery shall first come from such holder’s portion of the amount of funds then available in the Escrow Account. For the avoidance of doubt, any Loss from such breach shall not be deducted from an Upper Tier Issuer relating Escrow Amount allocated to Stockholders, Warrantholders and Eligible Optionholders not breaching such a transfer requestrepresentation. (f) Notwithstanding any provision of this Agreement to the contrary, the Parent Indemnified Parties shall not be entitled to indemnification for any Losses to the extent such Losses are directly caused by any transactions occurring on the Closing Date or the day immediately preceding the Closing Date (other than the Merger).

Certain Limitations on Remedies. (a) Notwithstanding any of the other provisions set forth in this Agreement to the contrary (including, without limitation, this Section 6), the Administrative Agent hereby agrees, on behalf of itself and the other Secured Parties, that except as permitted pursuant to clause (b) below, it shall not, directly or indirectly, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that the Parent Borrower shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) to the extent necessary to ensure compliance with this proviso, the Parent Borrower shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosure). (b) The parties hereto acknowledge and agree that the foreclosure, transfer or other similar exercise of remedies (an “Enforcement Action”) by the Administrative Agent with respect to certain Pledged Stock, may, in the case of an Enforcement Action with respect to the Pledged Stock of an Issuer (an “Upper Tier Issuer”) that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer, each Grantor hereby agrees that, upon the occurrence and continuation of an Event of Default, following the written request of the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent pursuant to this Section 6.6(b) within 10 days after receipt of such request, the Administrative Agent shall be released from the obligations specified in Section 6.6(a) above in connection with any Enforcement Action with respect to the Pledged Stock of an Upper Tier Issuer relating to such a transfer request.

Certain Limitations on Remedies. (a) Notwithstanding Neither the ------------------------------- Sellers nor the Purchasers shall have any liability under this Article 7 unless the aggregate amount of the other provisions set forth in this Agreement Damages to the contrary party (includingand/or its Affiliates) seeking indemnification under this Article 7 exceeds $100,000 in the aggregate (in which event such party shall have liability for the total amount of Damages, without limitation, this Section 6), including the Administrative Agent hereby agrees, on behalf of itself and the other Secured Parties, that except as permitted pursuant to clause (b) below, it shall not, directly or indirectly, consummate or otherwise take any Enforcement Action (as defined below) that would reasonably be expected to result in an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure; provided that the Borrower shall maintain the ownership structure of it and its Affiliates in a manner that does not restrict the Administrative Agent from commencing Enforcement Actions with respect to any Collateral other than FDIC Investments and Other Restricted Assets (it being understood that, (x) no such restriction shall be deemed to exist if the Administrative Agent can take Enforcement Actions with respect to a Lower Tier Issuer that is a direct or indirect owner of such Collateral but not an Upper Tier Issuer and (y) to the extent necessary to ensure compliance with this proviso, the Borrower shall ensure that all Collateral other than FDIC Investments and Other Restricted Assets shall be held, directly or indirectly, by Pledged Affiliates with respect to which Enforcement Actions would not constitute an FDIC Investment Prohibited Foreclosure or an Other Prohibited Foreclosurefirst $100,000). (b) The parties hereto acknowledge and agree that aggregate liability of the foreclosure, transfer or other similar exercise Sellers under this Article 7 shall be limited to the value of remedies (an “Enforcement Action”) 50% of the Purchase Price paid by the Administrative Agent with respect Purchasers, and the aggregate liability of the Purchasers under this Article 7 shall be limited to certain Pledged Stocksuch value; provided, may-------- however, to the extent that such liabilities for the Purchasers or ------- Sellers exceed in the aggregate 50% of the Initial Purchase Price, such liabilities shall not be payable by the Purchasers or Sellers, as applicable, unless and until the Additional Purchase Price is paid hereunder and, provided further, to the extent that , in the case of an Enforcement Action -------- ------- the Sellers, such liabilities exceed in the aggregate the amount of cash paid to the Sellers as part of the Purchase Price hereunder, the Sellers may transfer to the Purchasers in satisfaction of such liabilities shares of SEACOR Common Stock and/or all or a portion of the SEACOR Convertible Note and/or all or a portion of the Additional Purchase Price Note, with shares of SEACOR Common Stock being valued for this purpose at $49.16 per share (as properly adjusted to reflect any stock split, subdivision, combination, reclassification, merger or similar event) plus accrued but unpaid dividends and other distributions thereon and with the SEACOR Convertible Note (or portion thereof) and the Additional Purchase Price Note (or portion thereof) being valued at its principal amount plus accrued but unpaid interest thereon. (c) The aggregate liability of the Sellers under this Article 7 for all Losses in respect of any representations or warranties with respect to a JV Company or an Owned Vessel shall be limited to the Pledged Stock amount of an Issuer (an “Upper Tier Issuer”) the Purchase Price allocated to such JV Company or Owned Vessel on Schedule 3.5; provided, however, that owns Pledged Stock of any other Issuer of Pledged Stock (each, a “Lower Tier Issuer”), result in an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure in circumstances where an Investment Asset that could be the subject of an FDIC Prohibited Foreclosure or Other Prohibited Foreclosure is directly or indirectly owned by a Lower Tier Issuer. In such case, in order to permit the commencement of an Enforcement Action -------- ------- aggregate liability with respect to Supplylink (U.K.) Ltd. and Supplylink International B.V. shall be limited to $2,000,000. (d) Notwithstanding the Pledged Stock foregoing, the limitations of this Section 7.3 shall not limit, restrict or impair any Upper Tier Issuer, each Grantor hereby agrees that, upon claim (A) by the occurrence and continuation of an Event of Default, following Sellers or the written request of Purchasers or their respective Affiliates against the Administrative Agent, it shall take such actions as may be reasonably requested by Administrative Agent to transfer its Pledged Stock in an FDIC Private Owner or Other Restricted Investment Asset Owner to an Affiliate of such Grantor in a manner that enables the Administrative Agent to commence an Enforcement Action with respect to the Pledged Stock of any Upper Tier Issuer without indirectly causing an FDIC Investment Prohibited Foreclosure or Other Prohibited Foreclosure. In the event that the applicable Grantor does not comply with any written transfer request of the Administrative Agent other for indemnification pursuant to this Article 7 relating to or arising out of any Third Person Assertion, (B) by the Purchasers or any of their Affiliates against the Sellers for indemnification pursuant to this Article 7 relating to or arising out of clauses (ii) and (iii) (to the extent relating to matters covered by clause (ii)) of Section 6.6(b7.1(a) within 10 days after receipt or (C) by the Sellers or any of such requesttheir Affiliates against the Purchasers for indemnification pursuant to this Article 7 relating to or arising out of clauses (ii), (iii), (iv) and (v) (to the Administrative Agent extent relating to matters covered by clause (ii), (iii) or (iv)) of Section 7.1(b). (e) Notwithstanding anything to the contrary contained in this Article 7, there shall be released from the obligations specified no right to indemnification under this Article 7 in Section 6.6(a) above in connection with respect of any Enforcement Action with respect Losses to the Pledged Stock extent that an adjustment has been made therefor under Section 3.6. (f) Each party shall use, and shall cause its Affiliates to use, commercially reasonable efforts to mitigate any and all Losses in respect of an Upper Tier Issuer relating which it or its Affiliates may be entitled to such a transfer requestindemnification hereunder.