Certain Other Indemnity Matters. 10.6.1 Subject to the obligations of the Sellers under the GL Indemnification Agreement, from and after the Closing, the sole and exclusive remedy with respect to any and all claims relating to a breach of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10. 10.6.2 From and after the Closing, the Seller shall not be entitled to make any claim for indemnification relating to a breach by Parent or Holdco of any representation, warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration. 10.6.3 No party shall be entitled to make any claim pursuant to the indemnification provisions hereof, or otherwise, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable. 10.6.4 The parties agree that to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all payments for indemnification of any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-Ventures.
Appears in 1 contract
Samples: Merger Agreement (Premier Parks Inc)
Certain Other Indemnity Matters. 10.6.1 Subject Except with respect to the obligations of the Sellers under the GL Indemnification Agreement§§ 2.9, from 5.1, and after the Closing5.6 and except with respect to claims relating to fraud or intentional misrepresentation, the sole and exclusive remedy remedies of each Seller Indemnitee and each Buyer Indemnitee as against any Person from and after the Closing with respect to any and all claims of any kind whatsoever relating to a breach the subject matter of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10.
10.6.2 From §6. In furtherance of and after subject to the Closingforegoing, the Seller, Buyer, and Buyer Parent hereby waive, to the fullest extent permitted under applicable law, and agree not to assert and to cause each of the other Seller shall Indemnitees and Buyer Indemnitees not be entitled to make assert in any claim Action or proceeding of any kind, any and all rights, claims and causes of action it may now or hereafter have against any Party and any of their respective Affiliates and their respective members, partners, stockholders, officers, directors, employees, agents and representatives and their respective Affiliates relating to the subject matter of this Agreement, other than claims for indemnification relating to a breach asserted as permitted by Parent or Holdco of any representation, warranty, covenant or agreement and in accordance with the provisions set forth in Section 6.15 if Holdco does not issue this §6 (including any Holdco Preferred Stock as part such rights, claims or causes of the Merger Consideration.
10.6.3 No party shall be entitled action arising under or based upon common law or other Legal Requirements). Upon making any payment to make an Indemnified Party for any indemnification claim pursuant to this §6, the indemnification provisions hereofIndemnifying Party shall be subrogated, or otherwiseto the extent of such payment, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially rights which the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount Indemnified Party may have against other Persons with respect to the subject matter underlying such indemnification claim. The Parties shall take all reasonable steps to mitigate all such Losses upon and after becoming aware of any event which could reasonably be expected to give rise to any Losses with respect to which indemnification may be requested hereunder. Any insurance proceeds and Tax Benefits actually received or realized by an individual claim Indemnified Party (or series an Affiliate of 102 claims arising from substantially an Indemnified Party) after indemnification shall have been made to such Indemnified Party hereunder that were not given effect, pursuant to the same set definition of facts) “Loss”, in determining the amount of such Loss, up to the amount of such Loss, shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that refunded to the Indemnifying Party by the Indemnified Party. To the extent claims for indemnification permitted under Section 10.1 hereof are based uponapplicable Legal Requirements, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, any and all payments for indemnification of any such Losses or offsets pursuant to this §6 shall be appropriately prorated deemed for Tax purposes to reflect be adjustments to the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-VenturesPurchase Price.
Appears in 1 contract
Certain Other Indemnity Matters. 10.6.1 Subject to In the obligations absence of fraud or intentional misrepresentation and without limiting the provisions contemplating the payment of the Sellers Adjustment Deficit under Section 2.6.7 and the GL Indemnification Agreementpayment of costs and expenses contemplated by Sections 2.6.7, 2.11.2 and 9.8, following the Closing the sole and exclusive remedies of any Parent Indemnitee and any Company Indemnitee as against any Person from and after the Closing, the sole and exclusive remedy Closing with respect to any and all claims of any kind whatsoever relating to a breach the subject matter of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10.
10.6.2 From 9. In furtherance of the foregoing, (in the absence of fraud or intentional misrepresentation and after without limiting the Closingprovisions contemplating the payment of the Adjustment Deficit under Section 2.6.7 and the payment of costs and expenses contemplated by Sections 2.6.7, 2.11.2 and 9.8) following the Seller shall Closing each of the parties hereto waives, to the fullest extent permitted under applicable law, and agrees not be entitled to make assert and to cause each of the other Parent Indemnitees and Company Indemnitees, as applicable not to assert in any claim action or proceeding of any kind, any and all rights, claims and causes of action (including any such rights, claims or causes of action arising under or based upon common law or other Legal Requirements) it may now or hereafter have against any party hereto and any of their respective Affiliates and their respective members, partners, shareholders, officers, directors, employees, agents and representatives and their respective Affiliates relating to the subject matter of this Agreement, other than claims for indemnification relating to asserted as permitted by and in accordance with the provisions set forth in this Article 9. In no event shall any party be liable for loss of profits or consequential or punitive or incidental damages by reason of a breach by Parent or Holdco of any representation, warranty, covenant or agreement set forth other provision contained in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration.
10.6.3 No party shall be entitled to make any claim pursuant to the indemnification provisions hereof, or otherwise, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to or in any individual claim (Schedule or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT")certificate delivered pursuant hereto; PROVIDEDprovided, HOWEVERhowever, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that to the extent claims for indemnification a third party is awarded any lost profits, consequential or punitive or incidental damage, the Parent Indemnitees will be permitted to recover such damages as Losses under Section 10.1 hereof are based upon, arise out of this Article 9. Following the Closing all parties (including the Surviving Corporation) shall take all reasonable steps to mitigate all such losses or are in respect of Losses suffered in connection with damages as required under the ownership laws of the Co-Ventures or the assets thereof, all payments for indemnification State of any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-VenturesWashington.
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Certain Other Indemnity Matters. 10.6.1 Subject to the obligations of the Sellers under the GL Indemnification Agreement, from (a) From and after the Closing, Closing the Buyer Group's sole and exclusive remedy (other than specific enforcement to the extent otherwise available) with respect to any and all claims relating to a breach the subject matter of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10Section 11. In furtherance of the foregoing, the Buyer hereby, on its own behalf and on behalf of its Affiliates, waives, to the fullest extent permitted under applicable law, and agrees not to assert in any action or proceeding of any kind, any and all rights, claims and causes of action it or such Affiliate may now or hereafter have against the Sellers other than claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Section 11 (including, without limitation, any such rights, claims or causes of action arising under or based upon common law or other Legal Requirements).
10.6.2 From (b) Notwithstanding anything to the contrary contained in this Agreement, if the Closing occurs, (i) no claim for indemnification may be asserted by the Buyer Group against any Seller under this Section 11 with respect to any matter discovered by or known to the Buyer on or before the Closing Date and (ii) no claim for indemnification may be asserted by any Seller against the Buyer under this Section 11 with respect to any matter discovered or known to such Seller on or before the Closing Date. This Section 11.5(b) shall not apply to claims made by the Buyer Group with respect to Tax Liabilities or the representations and warranties set forth in Sections 4.4 and 5.1.4.
(c) Upon making any payment to an Indemnitee for any indemnification claim pursuant to this Section 11, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnitee may have against other Persons with respect to the subject matter underlying such indemnification claim.
(d) The Sellers shall have no liability under any provision of this Agreement for any Losses to the extent that such Losses relate to actions taken by Buyer or its Affiliates after the Closing. After the Closing, the Seller Buyer shall, and shall cause the Target Companies to, take all reasonable steps to mitigate all such Losses upon and after becoming aware of any event which could reasonably be expected to give rise to any Losses with respect to which indemnification may be requested hereunder.
(e) All costs and expenses of defense incurred by any Indemnifying Party as contemplated by Section 11.4 shall be deemed to constitute Losses for purposes of Section 11.3, and such expenses shall be reimbursed by the Indemnified Party to the extent that such costs and expenses, if incurred by the Indemnified Party, would not have been recoverable by the Indemnified Party from the Indemnifying Party pursuant to this
(f) After the Closing, the Target Companies shall not be entitled to make indemnify any Seller or any of their investors or Affiliates for any claim for indemnification relating to a breach by Parent or Holdco of any representation, warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration.
10.6.3 No party shall be entitled to make any claim pursuant to the indemnification provisions hereofany statute, charter, by-law, or otherwisecontractual indemnification right, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject right to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all receive payments for indemnification of interest or Taxes, and any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-Venturesindemnification rights are hereby terminated.
Appears in 1 contract
Samples: Acquisition Agreement
Certain Other Indemnity Matters. 10.6.1 Subject to the obligations of the Sellers under the GL Indemnification Agreement, from (a) From and after the Closing, Closing the Buyer's sole and exclusive remedy with respect to any and all claims relating to a breach the subject matter of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10Section 11; provided that the remedies provided in Sections 10 and 11 shall govern the subject matter of such Sections 10 and 11. In furtherance of the foregoing, the Buyer hereby waives, to the fullest extent permitted under applicable law, and agrees not to assert in any action or proceeding of any kind, any and all rights, claims and causes of action it may now or hereafter have against the -50- 57 Sellers other than claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Section 12 (including, without limitation, to the fullest extent permitted under applicable law, any such rights, claims or causes of action arising under or based upon common law or other Legal Requirements).
10.6.2 From (b) No party shall be liable under this Section 12, and after the Closing, the Seller shall not be entitled to make any no claim for indemnification relating to may in any event be asserted under this Section 12, for any loss of profits or consequential damages by reason of a breach by Parent or Holdco of any representation, warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Considerationother provision.
10.6.3 No party shall be entitled (c) Upon making any payment to make an Indemnitee for any indemnification claim pursuant to this Section 12, the indemnification provisions hereofIndemnifying Party shall be subrogated, or otherwiseto the extent of such payment, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially rights which the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount Indemnitee may have against other Persons with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicablesubject matter underlying such indemnification claim.
10.6.4 (d) The parties agree that Sellers shall have no liability under any provision of this Agreement for any Losses to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all payments for indemnification of any that such Losses shall be appropriately prorated relate to reflect actions taken or not taken by Buyer or its Affiliates after the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-VenturesClosing.
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Certain Other Indemnity Matters. 10.6.1 Subject (a) Upon making any payment to an Indemnitee for any indemnification claim pursuant to this Article VIII, the Indemnifying Party shall be subrogated, to the obligations extent of such payment, to any rights which the Indemnitee may have against other Persons with respect to the subject matter underlying such indemnification claim.
(b) If after an indemnification payment is made hereunder, the Party to which such payment is made receives insurance proceeds in respect of the Sellers under loss, such amount shall promptly be remitted to the GL Indemnification AgreementIndemnifying Party.
(c) Notwithstanding the foregoing, from except as provided by Section 8.02(a)(i), 8.02(a)(iv), 8.02(a)(v) and after the Closing8.02(a)(vi), the sole and exclusive remedy Seller shall have no obligation to indemnify Buyer with respect to any and all claims relating to a breach of a representation or warranty contained herein or in any representationscertificate delivered by the Seller pursuant hereto unless and until, warranties, covenants or agreements under this Agreement shall be pursuant and only to the extent that, the aggregate of all such individual losses incurred or sustained by all Buyer with respect to which Buyer is entitled to indemnification provisions set forth with respect to such breach of a representation or warranty exceeds $20,000, in this Article 10.
10.6.2 From and after the Closing, which case the Seller shall not only be entitled to make any claim liable for indemnification relating to a breach the amount by Parent or Holdco of any representation, warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration.
10.6.3 No party shall be entitled to make any claim pursuant to the indemnification provisions hereof, or otherwise, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement which all such losses exceed such amount and (ii) attributable the aggregate liability of the Seller to any individual claim (or series of claims arising from substantially indemnify the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, Buyer for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount losses with respect to an individual any breach of a representation or warranty contained herein or in any certificate delivered by the Seller pursuant hereto shall in no event exceed the Purchase Price; provided, that for purposes of determining whether any breach of a representation or warranty has occurred with respect to a claim (for indemnification or series for the purposes of 102 claims arising from substantially the same set of facts) measuring losses, such representations and warranties shall be applied toward the Sellers' Basket Amount deemed to have been made without any materiality, Material Adverse Effect or the Parent's Basket Amount, as applicablesimilar qualifications and without any dollar thresholds.
10.6.4 The parties agree that to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all payments for indemnification of any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-Ventures.
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Certain Other Indemnity Matters. 10.6.1 Subject to the obligations of the Sellers under the GL Indemnification Agreement, from (a) From and after the related Closing, the Parties’ sole and exclusive remedy with respect to any and all claims relating to a this Agreement, the breach of any representationsthis Agreement, warranties, covenants or agreements under the subject matter of this Agreement or the transactions contemplated hereby, other than claims of fraud or claims for equitable injunctive relief with respect to any violation of the covenants in Section
14.1 shall be pursuant to the indemnification provisions set forth in this Article 10.
10.6.2 From X or, to the extent applicable, Sections 3.4(b), 3.7, 3.8 and after 3.9. In the Closingevent that any Party asserts a claim of fraud against another Party outside this Article X as permitted in the preceding sentence and is (A) unsuccessful in obtaining an unappealable judgment from a court of competent jurisdiction finding such fraud, then such Party shall pay to the Seller shall not be entitled to make any claim for indemnification relating to a breach other Party the reasonable fees of and actual disbursements by Parent or Holdco of any representationthe attorneys, warrantyconsultants, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part experts and other Representatives of the Merger Consideration.
10.6.3 No party other Party, including its Litigation costs, in connection with such litigation (collectively, “Legal Fees”), or (B) successful in obtaining such judgment, then such Party shall be entitled to make any claim pursuant to recover its Legal Fees from the indemnification provisions hereofother Party. Notwithstanding the foregoing, or otherwise, under no circumstances shall the aggregate liability of the Seller for Losses (i) attributable to loss of profits or consequential monetary damages arising out of under or in connection with this Agreement or the transactions contemplated by hereby, including without limitation any claims for fraud asserted under this Section 10.7(a), exceed the Purchase Price actually paid to the Seller.
(b) In addition to the right of offset to which the Buyer Companies are entitled as provided elsewhere in this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"A/R Collection Agreement(s); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto Buyer Companies, or any one of them, with the written consent of the Seller (which consent shall not be withheld or delayed except where the Seller disputes in good faith the Buyer Companies’ claim for indemnification or the amount thereof), shall be obligated entitled to pay in full all offset against the unpaid portion of the Promissory Note(s) any amounts owing by the Seller to them or it under this Article X. In the absence of such consent from the Seller, such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that to the extent claims for indemnification paid into escrow under Section 10.1 hereof are based upon3.8 and held, arise out of or are invested and disbursed in respect of Losses suffered in connection accordance with the ownership of the Co-Ventures or the assets thereof, all payments for indemnification of any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-VenturesEscrow Agreement.
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Certain Other Indemnity Matters. 10.6.1 Subject to the obligations of the Sellers under the GL Indemnification Agreement, from (a) From and after the Closing, Closing the Buyer Group's sole and exclusive remedy (other than specific enforcement to the extent otherwise available) with respect to any and all claims relating to a breach the subject matter of any representations, warranties, covenants or agreements under this Agreement shall be pursuant to the indemnification provisions set forth in this Article 10Section 11. In furtherance of the foregoing, the Buyer hereby, on its own behalf and on behalf of its Affiliates, waives, to the fullest extent permitted under applicable law, and agrees not to assert in any action or proceeding of any kind, any and all rights, claims and causes of action it or such Affiliate may now or hereafter have against the Sellers other than claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Section 11 (including, without limitation, any such rights, claims or causes of action arising under or based upon common law or other Legal Requirements).
10.6.2 From (b) Notwithstanding anything to the contrary contained in this Agreement, if the Closing occurs, (i) no claim for indemnification may be asserted by the Buyer Group against any Seller under this Section 11 with respect to any matter discovered by or known to the Buyer on or before the Closing Date and (ii) no claim for indemnification may be asserted by any Seller against the Buyer under this Section 11 with respect to any matter discovered or known to such Seller on or before the Closing Date. This Section 11.5(b) shall not apply to claims made by the Buyer Group with respect to Tax Liabilities or the representations and warranties set forth in Sections 4.4 and 5.1.4.
(c) Upon making any payment to an Indemnitee for any indemnification claim pursuant to this Section 11, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnitee may have against other Persons with respect to the subject matter underlying such indemnification claim.
(d) The Sellers shall have no liability under any provision of this Agreement for any Losses to the extent that such Losses relate to actions taken by Buyer or its Affiliates after the Closing. After the Closing, the Seller Buyer shall, and shall cause the Target Companies to, take all reasonable steps to mitigate all such Losses upon and after becoming aware of any event which could reasonably be expected to give rise to any Losses with respect to which indemnification may be requested hereunder.
(e) All costs and expenses of defense incurred by any Indemnifying Party as contemplated by Section 11.4 shall be deemed to constitute Losses for purposes of Section 11.3, and such expenses shall be reimbursed by the Indemnified Party to the extent that such costs and expenses, if incurred by the Indemnified Party, would not have been recoverable by the Indemnified Party from the Indemnifying Party pursuant to this Section 11.
(f) After the Closing, the Target Companies shall not be entitled to make indemnify any Seller or any of their investors or Affiliates for any claim for indemnification relating to a breach by Parent or Holdco of any representation, warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration.
10.6.3 No party shall be entitled to make any claim pursuant to the indemnification provisions hereofany statute, charter, by-law, or otherwisecontractual indemnification right, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject right to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all receive payments for indemnification of interest or Taxes, and any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-Venturesindemnification rights are hereby terminated.
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Certain Other Indemnity Matters. 10.6.1 Subject to the obligations (a) The sole and exclusive remedies ------------------------------- of the Sellers under the GL Indemnification Agreement, each Buyer Indemnitee (i) from and after the Closing, the sole and exclusive remedy with respect to any and all claims relating to a breach the subject matter of any representationsthis Agreement, warrantiesand (ii) prior to the Closing, covenants with respect to breaches of the representations and warranties contained in Sections 4 or agreements under this Agreement 5 hereof, shall be pursuant to the indemnification provisions set forth in this Article 10Section 11 and, with respect to the matters referred to in (ii), termination of this Agreement in accordance with Section 13 hereof; provided, however, that injunctive relief shall be available to the -------- ------- parties with respect to breaches of the covenant contained in Section 7.2. In furtherance of the foregoing, the Buyer hereby waives, to the fullest extent permitted under applicable law, and agrees not to assert and to cause each of the other Buyer Indemnitees not to assert in any action or proceeding of any kind, any and all rights, claims and causes of action it may now or hereafter have against the Sellers other than claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Section 11 (including, without limitation, any such rights, claims or causes of action arising under or based upon common law or other Legal Requirements).
10.6.2 From (b) No party shall in any event be liable under this Section 11, and after the Closing, the Seller shall not be entitled to make any no claim for indemnification relating to may in any event be asserted under this Section 11, for any consequential damages by reason of a breach by Parent or Holdco of any representation, representation or warranty, covenant or agreement set forth in Section 6.15 if Holdco does not issue any Holdco Preferred Stock as part of the Merger Consideration.
10.6.3 No party shall be entitled to make any claim pursuant (c) Notwithstanding anything to the indemnification provisions hereofcontrary contained in this Agreement, or otherwiseif the Closing occurs, for Losses (i) attributable to loss of profits or consequential damages arising out of the transactions contemplated by this Agreement and (ii) attributable to any individual claim (or series of claims arising from substantially the same set of facts) that is less than $50,000 ("MINIMUM AMOUNT"); PROVIDED, HOWEVER, for all such claims (or series of claims) equal to or greater than the Minimum Amount, the parties hereto shall be obligated to pay in full all such amounts including the Minimum Amount, subject to the limitations set forth in Sections 10.4(a) and 10.4(b) hereof, as applicable and (b) no claim for Losses less than indemnification may be asserted by any Buyer Indemnitee against any Seller under this Section 11 if any fact, event or circumstance giving rise to such claim was discovered by or known to any Buyer Indemnitee on or before the Minimum Amount with respect to an individual claim (or series of 102 claims arising from substantially the same set of facts) shall be applied toward the Sellers' Basket Amount or the Parent's Basket Amount, as applicable.
10.6.4 The parties agree that to the extent claims for indemnification under Section 10.1 hereof are based upon, arise out of or are in respect of Losses suffered in connection with the ownership of the Co-Ventures or the assets thereof, all payments for indemnification of any such Losses shall be appropriately prorated to reflect the Company's or any of the Company's affiliates' direct or indirect percentage ownership of such Co-Ventures.Closing Date and
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