Common use of Exclusive Remedies Clause in Contracts

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by Parent, the sole and exclusive remedies of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief).

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior Subject to the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentSection 10.10, the Parties acknowledge and agree that their sole and exclusive remedies remedy with respect to any and all claims (other than claims arising from the gross negligence, intentional misconduct or fraud on the part of a Party hereto in connection with the Purchaser Parties transactions contemplated by this Agreement) for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant covenant, agreement or obligation contained set forth herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing otherwise relating to any Target Business Segmentthe subject matter of this Agreement, shall be pursuant to the indemnification provisions of set forth in this Article VIII shall be the sole and exclusive monetary remedies VIII. In furtherance of the Parties foregoing, except with respect to Section 10.10, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach or non-fulfillment of any covenant representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the extent such covenant relates subject matter of this Agreement it may have against the other Party and its Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to such Target Business Segment (other than those covenants the indemnification provisions set forth under in this Article VIII. Notwithstanding the foregoing, nothing in this Section 5.5(b), 8.06 shall limit (i) any Party’s right to seek and obtain any equitable relief to which any Party shall be entitled pursuant to Section 5.5(c), 10.10; (ii) any Party’s right to seek any remedy on account of the intentional misconduct or fraud by any Party; or (iii) Seller’s right to seek any remedy on account of Buyer’s failure to make any payment to Seller when due in accordance with the terms and conditions of the Promissory Note or Seller’s failure to provide a Funding Request pursuant to Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)6.04.

Exclusive Remedies. Each Party acknowledges and agrees 9.8.1 The parties hereto agree that (a) prior to the Closing relating to any Target Business Segment, other than in the case their respective remedies under Article 9 of actual fraud by Parent, the this Agreement are their sole and exclusive remedies of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind under this Agreement or any of with respect to the transactions contemplated hereby, including without limitation, any Closing that has already occurred; matter based on the inaccuracy, untruth, incompleteness or breach of any representation or warranty of any party hereto contained herein or based on the failure of any covenant, agreement or undertaking herein, and (c) following the Closing relating parties hereto hereby waive any claims with respect to any Target Business Segmentother right of contribution or indemnity available against any indemnifying party hereunder in such capacity on the basis of common law, statute or otherwise beyond the express terms of this Agreement; provided, however, that this exclusive remedy for damages does not preclude a party from bringing an action (i) for specific performance or other equitable remedy to require a party to perform its obligations under this Agreement or any Seller Document or Purchaser Document; or (ii) for damages or an equitable remedy based on a knowing and intentional (a) breach of a representation and warranty under this Agreement or (b) a misrepresentation, either such made with the intent to defraud or deceive; 9.8.2 Notwithstanding any other provision of this Agreement, the liability for indemnification of any indemnifying party under this Agreement shall not exceed the actual damages of the party entitled to indemnification and shall not include incidental, consequential, indirect, special, punitive, exemplary or other similar damages (unless such damages are obtained against an indemnified Party by a third party), other than compensatory damages; and 9.8.3 Each of the Seller and Purchaser hereby acknowledge and agree that the provisions of this Article VIII shall be ARTICLE 9, including those of this Section 9.8, were specifically bargained for and reflected in the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant amounts payable to the extent such covenant relates Seller pursuant to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)ARTICLE 2.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior to the Closing relating to any Target Business Segment, other than Except in the case of actual fraud by ParentFraud and as otherwise set forth in any Support Agreement or Option Holder Acknowledgment, from and after the Closing, the sole provisions of Section 5.4, this ‎Article IX and ‎Section 10.10 set forth the exclusive rights and remedies of the Purchaser Parties for to seek or obtain damages or any breach of other remedy or relief whatsoever from any of party with respect to matters arising under or in connection with this Agreement and the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, transactions contemplated hereby (i) in the event that each of the conditions except as set forth in Article VI has not been satisfied the Letter of Transmittal, Support Agreements or waivedOption Holder Acknowledgments). Without in any way limiting the provisions of ‎Section 9.5, refusal to close and except in the purchase case of Fraud and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms as otherwise set forth therein; (b) following in any Support Agreement or Option Holder Acknowledgment, the Closing relating to Parties agree that, excluding any Target Business Segmentclaim for injunctive or other equitable relief, the indemnification provisions of Section 5.4 and this Article VIII shall be ‎Article IX are intended to provide the sole and exclusive remedies remedy as to all claims against the Equity Holders, on the one hand, and Buyer, on the other hand, that may incur arising from or relating to this Agreement and the agreements and documents contemplated hereby and the transactions contemplated hereby and thereby. Notwithstanding the foregoing, this ‎Section 9.6 shall not operate to (a) interfere with or impede the operation of the provisions of Section 2.8 providing for the resolution of certain disputes relating to the Merger Consideration between the Parties and/or by the Accounting Firm, (b) limit the rights of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and seek equitable remedies (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)) pursuant to Section 10.10, (c) limit the rights of the Indemnified Persons pursuant to ‎Section 5.5, (d) limit Buyer’s rights in the case of Fraud by the Company or any Equity Holder, or any Equity Holder’s rights in the case of Fraud by Buyer, as the case may be, or (e) limit Buyer’s rights or any Equity Holder’s obligations under any Support Agreement or Option Holder Acknowledgment.

Exclusive Remedies. Each Party acknowledges and agrees 9.7.1 The parties hereto agree that (a) prior to the Closing relating to any Target Business Segment, other than in the case their respective remedies under Article 9 of actual fraud by Parent, the sole and this Agreement are their exclusive remedies of under this Agreement, including without limitation, any matter based on the Purchaser Parties for any inaccuracy, untruth, incompleteness or breach of any representation or warranty of any party hereto contained herein, and the representations and warranties parties hereto hereby waive any claims with respect to any other right of Parent contained contribution or indemnity available against any indemnifying party hereunder in Article III relating such capacity on the basis of common law, statute or otherwise beyond the express terms of this Agreement; provided, however, that this exclusive remedy for damages does not preclude a party from bringing an action for specific performance or other equitable remedy to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal require a party to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate perform its obligations under this Agreement pursuant to Section 9.1(c) subject to the terms set forth thereinor any Sellers Document or Purchaser Document; (b) following the Closing relating to any Target Business Segmentprovided, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties further, that nothing contained in this Agreement relating (including, without limitation, this Section 9.7.1) shall affect or impair Purchaser's or Sellers' right to such Target Business Segment or the transfer thereof except pursue any remedy in the case respect of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no a breach of any representation, warranty, covenant or obligation agreement contained herein to be performed by Sellers or Purchaser after the Closing Date, and for the avoidance of doubt no such remedy shall give rise be subject to the limitations of Section 9.2; and 9.7.2 Notwithstanding any right on other provision of this Agreement, the part liability for indemnification of either Party to rescind any indemnifying party under this Agreement or any shall not exceed the actual damages of the transactions contemplated herebyparty entitled to indemnification and shall not include incidental, consequential, indirect, special, punitive, exemplary or other similar damages, other than compensatory damages; provided, however, that nothing herein shall prevent an indemnified party from being indemnified by an indemnifying party for all components of awards against the indemnified party in third party claims, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segmentincidental, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach consequential, indirect, special, punitive, exemplary or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)similar damages.

Exclusive Remedies. Each Party acknowledges and agrees that Except (a) prior with respect to (i) the Closing matters covered by Section 2.4, (ii) any matter relating to any Target Business SegmentTaxes (which shall be governed exclusively by Article IX), other than in the case and (iii) Losses arising out of actual fraud committed by Parent, the sole and exclusive remedies of the Purchaser Parties for any breach of any of the a Party with respect to its representations and warranties in this Agreement or Willful Breach by a Party of Parent its covenants and agreements contained in Article III relating to such Target Business Segment or the transfer thereof shall bethis Agreement, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (iib) for the Parties’ right to terminate this Agreement seek and obtain specific performance, an injunction or any other equitable relief pursuant to Section 9.1(c) subject to 10.9, the terms set forth therein; (b) Parties acknowledge and agree that, following the Closing relating to any Target Business SegmentClosing, the indemnification provisions of this Article VIII Section 8.2 and Section 8.3 shall be the sole and exclusive remedies of the Parties and the Indemnified Parties for any liabilities or Losses (including any liabilities or Losses from claims for breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representationcontract, warranty, covenant tortious conduct (including negligence) or obligation contained herein shall give rise to otherwise and whether predicated on common law, statute, strict liability, or otherwise) that any right on the part of either Party, any Indemnified Party to rescind this Agreement (or any of their respective Affiliates) may at any time suffer or incur, or become subject to, as a result of, or in connection with the Sale or the other transactions contemplated hereby, including any Closing that has already occurred; breach of any representation or warranty in this Agreement by any Party, or any failure by any Party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement. Without limiting the generality of the foregoing, each of Purchaser and (c) following the Closing relating Company hereby irrevocably waives any right of rescission it may otherwise have or to any Target Business Segmentwhich it may become entitled. For the avoidance of doubt, this Section 8.6 is not intended to limit the indemnification provisions of this Article VIII shall be the sole rights and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant parties to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b)Operating Agreement, Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 the Voting Agreement and Section 5.18 the Registration Rights Agreement for matters arising following the enforcement of which a Party may also seek specific performance or injunctive relief)Closing.

Exclusive Remedies. Each Party acknowledges and agrees that that: (a) prior to the Closing relating to any Target Business SegmentClosing, other than in the case of actual intentional breach, willful misconduct or fraud by Parent, Seller or their Affiliates or Representatives, the sole and exclusive remedies remedy of the Purchaser Parties for any breach or inaccuracy of any of the representations and warranties of Parent representation or warranty contained in Article III relating to such Target Business Segment this Agreement or the transfer thereof any certificate or instrument delivered hereunder shall be, (i) in the event that (i) each of the conditions set forth in Article VI has not been satisfied or waivedwaived as a result of such breach or inaccuracy and (ii) such breach or inaccuracy is incapable of being cured or, if capable of being cured, is not cured within thirty (30) days after Purchaser has notified Parent and Seller of intent to refuse to close the purchase and sale of the Shares hereunder, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; Shares hereunder; (b) following the Closing relating to any Target Business SegmentClosing, other than in the case of intentional breach, willful misconduct or fraud, (i) the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation agreement contained herein shall give rise to any right on the part of either any Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurredby this Agreement; and and (c) following the Closing relating to any Target Business SegmentClosing, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant covenant, but without prejudice to any remedies available under any of the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief).Ancillary Agreements or

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior to the Closing relating to any Target Business Segment, other than Except as expressly set forth in the case of actual fraud by ParentARTICLE II, the parties hereto acknowledge and agree that their sole and exclusive remedies of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) remedy following the Closing relating with respect to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties all claims (other than claims constituting Fraud) for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant covenant, agreement or obligation contained set forth herein or otherwise arising out of or relating to the subject matter of this Agreement, shall give rise be pursuant to the indemnification provisions set forth in this ARTICLE VIII. In furtherance of the foregoing, other than as expressly set forth in ARTICLE II, each party hereby waives, to the fullest extent permitted under Law, any right on and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the part subject matter of either Party to rescind this Agreement or any of the transactions contemplated herebyhereby it may have against the other parties hereto and their Affiliates and each of their respective representatives, including any Closing that has already occurred; and (c) following the Closing relating except pursuant to any Target Business Segment, the indemnification provisions set forth in this ARTICLE VIII. Without limiting the generality of the preceding sentence, no legal action sounding in tort, statute or strict liability (other than Fraud) may be maintained by any party. Nothing in this Article Section 8.6 shall limit the dispute resolution provisions expressly set forth in ARTICLE II, or any Person’s right to seek and obtain any equitable relief to which it is entitled pursuant to Section 8.7. Notwithstanding anything to the contrary herein, ARTICLE VIII shall not be the Seller’s sole and exclusive monetary remedies of the Parties for remedy with respect to claims based on any breach or non-fulfillment alleged breach of any covenant covenant, agreement or obligation to the extent such covenant relates be performed by Buyer pursuant to this Agreement, and Seller may be entitled to all remedies at law or equity with respect to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)claims.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior The Parties agree and acknowledge that, to the Closing relating extent permitted by applicable Laws, the rights and remedies which Buyer may have against Seller or Seller’s Affiliates in connection with a breach of Seller’s obligations set forth in this Agreement shall be solely governed by this Agreement, and the rights and remedies provided for by this Agreement shall be the exclusive remedies available to any Target Business Segment, Buyer and the Buyer Designees (other than in the case of actual fraud by Parentclaims for fraud, the sole for specific performance (primäre Erfüllungspflichten) or, injunctive relief (einstweilige Verfügung) or any similar temporary relief under applicable Laws). Any and exclusive all rights or remedies of any legal nature which Buyer and the Purchaser Parties Buyer Designees may otherwise have (other than the claims for any breach of any specific performance (primäre Erfüllungspflichten) and the rights and remedies provided for by this Agreement) against Seller or the Subsidiaries in connection with the acquisition of the Wireline Communications Business shall, to the extent permitted by applicable Laws, be excluded. In particular and without limiting the generality of the foregoing, Buyer hereby waives any claims for representations and warranties provided by Law (Section 434 et seqq. BGB), breaches of Parent contained in Article III relating contractual and pre-contractual obligations provided by Law (Section 280 BGB through Section 000 XXX, Xxxxxxx 000 XXX), frustration of contract (Section 313 BGB), and, except as provided by Section 11, Buyer and the Buyer Designees shall, to such Target Business Segment or the transfer thereof shall beextent permitted by applicable Laws, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the have any right to resign, cancel, rescind (anfechten) or otherwise terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to exercise any right on the part or remedy which would have a similar effect. The applicability of either Party to rescind this Agreement or any of the transactions contemplated herebySection 433 BGB through Section 453 BGB (except for Section 433(1) BGB and Section 433(2) BGB) and Section 000 XXX, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segmentall statutory claims thereunder, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant excluded to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)permitted by applicable Law.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior to The Parties acknowledge that, upon the Closing relating to any Target Business Segment, other than in consummation of the case of actual fraud by ParentClosing, the sole and exclusive remedies of the Purchaser Parties for (a) each Investor (including its Affiliates, officers, directors, managers, employees, agents, representatives and successors and permitted assigns) against Parent with respect to any and all Losses resulting from, arising out of or relating to (i) any breach of any of the representations and warranties of Parent representation or warranty contained in Article III this Agreement, or (ii) any failure to perform any covenant or agreement contained in this Agreement and of (b) Parent (including its Affiliates, officers, directors, managers, employees, agents, representatives and successors and permitted assigns) against any Investor with respect to (i) any and all Losses resulting from, arising out of or relating to such Target Business Segment any breach of any representation or the transfer thereof warranty contained in this Agreement, or (ii) any failure to perform any covenant or agreement contained in this Agreement shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segmentcase, the indemnification provisions of set forth in this Article VIII ARTICLE VIII, and no Indemnified Party shall be entitled to pursue, and each Investor and Parent hereby expressly waives, any and all additional remedies that may otherwise be available with respect thereto, except for remedies with respect to any fraudulent acts or intentional misrepresentation by any Investor or Parent. For the avoidance of doubt, (x) nothing in this Section 8.5 shall preclude any Investor from seeking specific performance of, or other equitable relief with respect to, any covenant of any other Party contained in this Agreement and (y) and the sole and exclusive remedies remedy of the other Parties for with respect to any breach failure of any Investor to fund its Subscription Price on the representations or warranties terms and subject to the conditions contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies enforcement of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under provisions contained in Section 5.5(b) and either Section 5.5(d) or Section 5.5(e), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)as applicable.

Exclusive Remedies. (a) Each Party party hereto acknowledges and agrees that (ai) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentClosing, the sole and exclusive remedies remedy of the Purchaser Parties Acquiror for any breach or inaccuracy of any of the representations and warranties of Parent representation or warranty contained in Article III relating to such Target Business Segment this Agreement or the transfer thereof any certificate or instrument delivered hereunder shall be, (i) in the event that each of the conditions set forth in Article VI ARTICLE VIII has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment Transferred Assets hereunder and recover the Deposit, subject to and in accordance with Section 2.08; (ii) prior to the right to terminate Closing, the sole and exclusive remedy of Parent for any breach or inaccuracy of any representation or warranty contained in this Agreement pursuant or any certificate or instrument delivered hereunder shall be, in the event that each of the conditions set forth in ARTICLE VIII has not been satisfied or waived, refusal to Section 9.1(c) close the purchase and sale of the Transferred Assets hereunder and recover the Deposit, as liquidated damages and not as a penalty, subject to the terms set forth thereinand in accordance with Section 2.08, in satisfaction of claims against Acquiror with respect to such breach or inaccuracy; (biii) following the Closing relating to any Target Business SegmentClosing, (A) the indemnification provisions of this Article VIII ARTICLE X shall be the sole and exclusive remedies of the Parties parties hereto for any breach of the representations or warranties and covenants and agreements contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (iiB) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation agreement contained herein shall give rise to any right on the part of either Party any party hereto to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurredby this Agreement; and (civ) following the Closing relating Closing, subject to any Target Business Segmentthe last sentence of Section 6.02(a), the indemnification provisions of this Article VIII ARTICLE X shall be the sole and exclusive monetary remedies of the Parties parties hereto for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment Pre-Closing Covenant or any Post-Closing Covenant. (other than those covenants set forth under Section 5.5(bb) THE PARTIES ACKNOWLEDGE AND AGREE THAT PARENT SHALL BE ENTITLED TO RECEIVE THE ENTIRE DEPOSIT IN CERTAIN CIRCUMSTANCES SET FORTH IN SECTION 2.08(b). IN SUCH EVENT, THE ESCROW AGENT SHALL DISBURSE THE DEPOSIT TO PARENT PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2.08(b) AND THE ESCROW AGREEMENT AND PARENT SHALL HAVE NO FURTHER OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT THOSE WHICH EXPRESSLY SURVIVE SUCH TERMINATION. ACQUIROR AND PARENT HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY PARENT AS A RESULT OF SUCH TERMINATION, AND AGREE THAT THE DEPOSIT IS A REASONABLE APPROXIMATION THEREOF. THE DEPOSIT SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF PARENT IN SUCH EVENT, AND SHALL BE PAID BY THE ESCROW AGENT TO PARENT AS PARENT’S SOLE AND EXCLUSIVE REMEDY HEREUNDER. THE PAYMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES. ACQUIROR AND PARENT FURTHER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY PARENT AS A RESULT OF A BREACH OF THE COVENANTS SET FORTH IN SECTION 9.01(G), AND AGREE THAT THE AMOUNT REFERRED TO IN SECTION 9.01(G) IS A REASONABLE APPROXIMATION THEREOF AND SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF PARENT IN SUCH EVENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES. (c) Notwithstanding the foregoing, this Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for 10.06 shall not operate to limit the enforcement rights of which a Party may also Acquiror to seek equitable remedies (including specific performance or injunctive relief)) as permitted under Section 11.13, and the parties acknowledge and agree that Acquiror may sxx for specific performance of Parent’s obligations under this Agreement in lieu of terminating this Agreement.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior to Following the Closing relating and subject to any Target Business Segment, other than in the case of actual fraud by ParentSection 7.3(d), the sole and exclusive remedies remedy for any and all claims arising under, out of, or related to this Agreement, or the sale and purchase of the Purchaser Parties for any breach of any of Company, shall be the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions rights set forth in Article VI has not been satisfied Articles 7 and 8 only, and no person will have any other entitlement, remedy or waivedrecourse, refusal to close whether in contract, tort or otherwise, it being agreed that all of such other remedies, entitlements and recourse are expressly waived and released by the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject parties hereto to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the fullest extent permitted by law. The sole and exclusive remedies of the Parties for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement) or any claim or cause of action otherwise arising out of or related to the sale and purchase of the Company shall be those remedies available at law or in equity for breach of contract only (as such contractual remedies have been further limited or excluded pursuant to the express terms of this Agreement); and the parties hereby agree that no party hereto shall have any remedies or cause of action (whether in contract or in tort) for any statements, communications, disclosures, failures to disclose, representations or warranties contained not set forth in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained hereinAgreement; provided, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segmenthowever, the indemnification limitations set forth in this sentence are subject to and qualified by Section 7.3(d). The provisions of this Article VIII shall be Section 11.8, together with the sole provisions of Sections 11.5, 11.6 and exclusive monetary 11.7, and the remedies specified in Articles 7 and 8, were specifically bargained-for between Buyer, Merger Sub, the Company and Stockholders’ Representative and were taken into account by Buyer, Merger Sub, the Company and Stockholders’ Representative in agreeing to the amount of the Parties for any breach or non-fulfillment Base Purchase Price, the adjustments thereto and the other terms and conditions hereof. The Company and Stockholders’ Representative have specifically relied upon the provisions of any covenant this Section 11.8, together with the provisions of Sections 11.5, 11.6 and 11.7, and the remedies specified in Articles 7 and 8, in agreeing to the extent such covenant relates Base Purchase Price, the adjustments thereto and the other terms and conditions hereof, including in agreeing to such Target Business Segment (other than those covenants provide the specific representations and warranties set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)herein.

Exclusive Remedies. Each Party of the Sellers and the Purchaser hereby acknowledges and agrees that that, except for breaches or non-performance of provisions in this Agreement for which the remedy of specific performance is available pursuant to Section 16.12, (a) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentClosing, the sole and exclusive remedies remedy of the Purchaser Parties Sellers and the Purchaser, respectively, for any breach of any representation and warranty or breach of or default in connection with any of the representations and warranties of Parent covenants or agreements contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to or any Target Business Segment, instrument contemplated herein shall be the indemnification provisions of this Article VIII 10 and the refusal to effect the Closing hereunder, and (b) following the Closing, the sole and exclusive remedy of the Sellers and the Purchaser, respectively, for any breach of any representation and warranty or breach of or default in connection with any of the covenants or agreements contained in this Agreement or any instrument contemplated herein shall be the indemnification provisions of this Article 10. The Purchaser hereby acknowledges and agrees that, except as provided in Section 10.3.1, (i) the amount of funds deposited at any time in the Escrow Account (together with investments thereof) shall be the sole and exclusive remedies of remedy for the Parties for any Purchaser’s Indemnified Parties’ right to indemnification under this Article 10, other than with respect to the Special Tax Claims, the breach of the representations and warranties provided under Article 7 and Sections 8.1, 8.2, 8.3, 8.5 and 8.7, or warranties contained in this Agreement relating pursuant to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach Section 10.1.1(b), and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII Deferred Purchase Price shall be the sole and exclusive monetary remedies remedy for the Purchaser’s Indemnified Parties’ right to indemnification under this Article 10 with respect to the Special Tax Claims; it being understood that the insufficiency of such funds shall limit such rights of the Purchaser’s Indemnified Parties hereunder. For the sake of clarity, except for the indemnification obligations under this Article 10 resulting from the breach of the representations and warranties provided under Article 7 and Sections 8.1, 8.2, 8.3, 8.5 and 8.7, or pursuant to Section 10.1.1(b), the Parties hereby agree that if, for any breach or non-fulfillment reason whatsoever, at any time, the aggregate amount of any covenant the Indemnifiable Losses in excess of the Indemnity Threshold (to the extent such covenant relates to such Target Business Segment applicable) exceeds the balance of the Deferred Purchase Price or the amount of funds then sitting in the Escrow Account (other than those covenants set forth under Section 5.5(btogether with Escrow Earnings), as the case may be, except as provided in Section 5.5(c10.3.1, the Purchaser’s Indemnified Parties will only be entitled to be indemnified for up to the balance of the Deferred Purchase Price (with respect to the Special Tax Claims) or the amount of funds then sitting in the Escrow Account (together with Escrow Earnings), Section 5.6as the case may be, Section 5.9(e), Section 5.15 and Section 5.18 for they will not have the enforcement right to pursue collection by any means whatsoever of which a Party may also seek specific performance or injunctive relief)the amount of the Losses that exceeds such amounts.

Exclusive Remedies. Each Party acknowledges and agrees that (a) Subject to Section 10.03(c), the Parties agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant or agreement made or entered into by a Party pursuant to this Agreement, any Ancillary Agreement, or any certificate, instrument or document delivered pursuant hereto, the only relief and remedies available to the other Parties hereto in respect of said breach, default or nonperformance shall be the indemnification provisions of Article IX; provided that (i) if any of the provisions of this Agreement are not performed in accordance with their terms or are otherwise breached, the Parties shall be entitled to specific performance of the terms thereof in accordance with the provisions of Section 11.14 in addition to any other remedy at law or equity, (ii) if any of the provisions of this Agreement are not performed in accordance with their terms or are otherwise breached prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentClosing, the sole and exclusive remedies of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right be entitled to terminate this Agreement in accordance with Section 10.01 and (iii) the indemnity provisions in Article IX shall not limit any Party's liability for (A) fraud or (B) intentional misrepresentation. (b) The Parties also agree that no Action for rescission, or claiming repudiation, of this Agreement may be brought or maintained by any Party against any others following the Closing Date no matter how severe, grave, or fundamental any such breach, default or nonperformance may be by one Party. Accordingly, the Parties hereby expressly waive and forego any and all rights they may possess to bring any such Action. (c) If (i) this Agreement is terminated by Sellers or Purchasers pursuant to Section 9.1(c10.01(c) subject due to the terms failure of the condition to consummation of the Transactions set forth therein; (b) following the Closing relating to any Target Business Segmentin Section 8.02(j), the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything all other conditions to consummation of the contrary contained herein, no Transactions set forth in Section 8.02 shall have been satisfied and (iii) Sellers are not in breach of any representation, warranty, covenant or obligation contained herein agreement under this Agreement, then Purchasers shall give rise pay or cause to be paid $3,000,000 (the "Termination Fee") to Sellers, by wire transfer in immediately available funds to an account designated by Sellers in writing delivered to Purchasers on or prior to the date of such termination, within five Business Days following such termination. Notwithstanding anything to the contrary in this Agreement, in the event of any right on the part of either Party to rescind this Agreement or any such failure of the transactions contemplated herebycondition to consummation of the Transactions set forth in Section 8.02(j), including any Closing that has already occurred; and (c) following Sellers' right to receive payment of the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII Termination Fee shall be the sole and exclusive monetary remedies remedy of the Parties for any breach or non-fulfillment Sellers against Purchasers, Libbey Inc. and their respective Representatives as a result of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 failure and Section 5.18 for the enforcement termination of which a Party may also seek specific performance or injunctive relief)this Agreement.

Exclusive Remedies. Each Party acknowledges Except as set forth in Section 6.5, Section 6.13, Section 9.4(a) and agrees that this Section 9.5, and subject to Section 11.15, (a) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by Parent, the sole and exclusive remedies of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII ARTICLE IX shall be the sole and exclusive remedies of remedy for the Parties parties hereto for any misrepresentation or breach of the representations any warranty, covenant or warranties other provision contained in this Agreement or in any Ancillary Document delivered pursuant hereto and with respect to any and all claims by Parent Indemnified Parties relating to such Target Business Segment this Agreement, the events giving rise to or the transfer thereof except in the case subject matter of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of and the transactions contemplated hereby, including ; (b) the Escrow Funds remaining at any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII given time shall be the sole and exclusive monetary remedies source of payment and recovery available to the Parent Indemnified Parties under this Agreement (including, without limitation, this ARTICLE IX), and at no time will the Parent Indemnified Parties be entitled to recover Damages or any other payments hereunder or in connection with the transactions contemplated hereby (i) in excess of the Parties for amount of the Escrow Funds or (ii) from any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (source other than those covenants set forth the Escrow Funds (including, without limitation, from the Sellers directly); (c) at such time as there are no remaining Escrow Funds, the indemnity obligations under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 9.2(a) and Section 5.18 for 9.2(b) shall terminate and, other than with respect to fraud, the enforcement of which a Sellers and Parent shall thereafter have no further liability to any Indemnified Party may also seek specific performance under this Agreement, any Ancillary Document or injunctive relief)otherwise in connection with the transactions contemplated hereby. Nothing herein shall be deemed to limit or restrict in any manner any rights or remedies that any party has at law or in equity against any other party hereto, based on fraud.

Exclusive Remedies. Each Party acknowledges and agrees that Subject to Section 8.10 (a) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentSpecific Performance), the Parties acknowledge and agree that their sole and exclusive remedies remedy with respect to any and all claims (other than claims arising from fraud, intentional misrepresentation or willful misconduct on the part of a party hereto in connection with the Purchaser Parties transactions contemplated by this Agreement) for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant covenant, agreement or obligation contained set forth herein or otherwise relating to the subject matter of this Agreement shall give rise be pursuant to the indemnification provisions set forth in this Article VII. In furtherance of the foregoing, subject to Section 8.10 (Specific Performance), each party DM3\7875356.18 to this Agreement hereby waives, to the fullest extent permitted under Law, any right and all rights, claims and causes of action (other than rights, claims or causes of action arising from fraud, intentional misrepresentation or willful misconduct on the part of either Party a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein that it may have against the other parties and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to rescind the indemnification provisions set forth in this Agreement Article VII. Nothing in this Section 7.08 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek and obtain any remedy on account of fraud, intentional misrepresentation or willful misconduct on the part of a party hereto or its Affiliates or any of their respective Representatives in connection with the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of by this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)Agreement.

Exclusive Remedies. Each Party acknowledges From and agrees that (aafter the Closing, except for any payment, reimbursement or refund obligations expressly set forth in this Agreement, including, as applicable, those set forth in Section 1.6(f), Section 5.2(d), Section 5.5(a), Section 5.5(d), Section 5.7(f), Section 5.7(h) prior to the Closing relating to any Target Business Segment, other than in the case of actual fraud by Parentand Section 5.11, the sole provisions of Section 5.5(p), Section 5.8, this ARTICLE VII and Section 8.10 set forth the exclusive rights and remedies of the Purchaser Parties for to seek or obtain damages or any breach of other remedy or relief whatsoever from any of the representations and warranties of Parent contained party with respect to matters arising under or in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate connection with this Agreement pursuant to and the transactions contemplated hereby. Without in any way limiting the provisions of Section 9.1(c) subject to 7.7, the terms set forth therein; (b) following the Closing relating to Parties agree that, excluding any Target Business Segmentclaim for injunctive or other equitable relief, the indemnification provisions of this Article VIII shall be ARTICLE VII are intended to provide the sole and exclusive remedies remedy as to all claims against Seller, on the one hand, and Buyer, on the other hand, arising from or relating to this Agreement and the agreements and documents contemplated hereby and the transactions contemplated hereby and thereby. Notwithstanding the foregoing, this Section 7.10 shall not operate to (a) interfere with or impede the operation of the provisions of ARTICLE I providing for the resolution of certain disputes relating to the Purchase Price between the Parties and/or by the Accounting Firm, (b) limit the rights of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and seek equitable remedies (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)) or (c) limit the rights of the Indemnified D&O Parties pursuant to Section 5.6. Notwithstanding anything to the contrary in this Agreement, including this ARTICLE VII, any claim for fraud may be brought within the applicable statute of limitations and nothing herein shall limit or reduce the amounts recoverable for any such claim.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior Subject to the Closing relating final sentence of this Section 11.3, the parties agree that notwithstanding anything to any Target Business Segmentthe contrary set forth in this Agreement or otherwise, other than in from and after the case Effective Time, the indemnification provisions of actual fraud by Parent, this Article XI are the sole and exclusive remedies of the Purchaser Parties for parties pursuant to this Agreement or in connection with the transactions contemplated hereby. From and after the Effective Time, to the maximum extent permitted by law, but subject to the final sentence of this Section 11.3, the parties hereby waive all other rights, claims, remedies or actions with respect to any matter in any way relating to this Agreement or arising in connection herewith, whether under any foreign, federal, state, provincial or local laws, statutes, ordinances, rules, regulations, requirements or orders at common law or otherwise. Except as provided in this Article XI, subject to the final sentence of this Section 11.3, from and after the Effective Time, no right, claim, remedy or action shall be brought or maintained by any party, and no recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misstatement or omission respecting an inaccuracy in or breach of any of the representations and representations, warranties or covenants of Parent any of the parties thereto set forth or contained in this Agreement. All obligations of the Former Company Stockholders pursuant to the terms of this Article III relating XI shall be satisfied first by payment from the Escrow Amount. Notwithstanding anything to such Target Business Segment the contrary in this Section 11.3 or the transfer thereof shall beotherwise in this Agreement, (i) in from and after the event that each Effective Time, a claim may be brought based upon a breach of the conditions covenants set forth in Article VI has not been satisfied Sections 3.3(f), 3.3(g), 3.3(h), 3.3(i), 8.5, 8.6 or waived8.7, refusal to close or in any Transaction Document (other than this Agreement), the purchase and sale of Former Company Stockholders Indemnification Agreement or the Target Equity Interests relating to such Target Business Segment hereunder Charter Non-Solicit, and (ii) a claim based upon fraud or intentional misrepresentation may be brought, without regard to any of the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms limitations set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating (including without regard to such Target Business Segment any time or the transfer thereof except monetary limitations or any limitation on remedies), against any Person or Persons (or, in the case of the Company, the Former Company Stockholders) accused of committing such fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)intentional misrepresentation.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior The Parties agree and acknowledge that, to the Closing relating extent permitted by applicable Laws, the rights and remedies which Buyer may have against Seller or Seller’s Affiliates in connection with a breach of Seller’s obligations set forth in this Agreement shall be solely governed by this Agreement, and the rights and remedies provided for by this Agreement shall be the exclusive remedies available to any Target Business Segment, Buyer and the Buyer Designees (other than in the case of actual fraud by Parentclaims for fraud, the sole for specific performance (primäre Erfüllungspflichten) or, injunctive relief (einstweilige Verfügung) or any similar temporary relief under applicable Laws). Any and exclusive all rights or remedies of any legal nature which Buyer and the Purchaser Parties Buyer Designees may otherwise have (other than the claims for any breach of any specific performance (primäre Erfüllungspflichten) and the rights and remedies provided for by this Agreement) against Seller or the Subsidiaries in connection with the acquisition of the Wireline Communications Business shall, to the extent permitted by applicable Laws, be excluded. In particular and without limiting the generality of the foregoing, Buyer hereby waives any claims for representations and warranties provided by Law (Section 434 et seqq. BGB), breaches of Parent contained in Article III relating contractual and pre-contractual obligations provided by Law (Section 280 BGB through Section 280 XXX, Xxxxxxx 000 XXX), frustration of contract (Section 313 BGB), and, except as provided by Section 11, Buyer and the Buyer Designees shall, to such Target Business Segment or the transfer thereof shall beextent permitted by applicable Laws, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the have any right to resign, cancel, rescind (anfechten) or otherwise terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to exercise any right on the part or remedy which would have a similar effect. The applicability of either Party to rescind this Agreement or any of the transactions contemplated herebySection 433 BGB through Section 453 BGB (except for Section 433(1) BGB and Section 433(2) BGB) and Section 370 XXX, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segmentall statutory claims thereunder, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant excluded to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)permitted by applicable Law.

Exclusive Remedies. Each Party acknowledges From and agrees that (a) prior to after the Closing relating to any Target Business Segment, other than in the case of actual fraud by ParentClosing, the sole provisions of Section 5.4, this Article IX and Section 10.10 set forth the exclusive rights and remedies of the Purchaser Parties for to seek or obtain damages or any breach of other remedy or relief whatsoever from any of the representations and warranties of Parent contained party with respect to matters arising under or in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate connection with this Agreement pursuant to and the transactions contemplated hereby. Without in any way limiting the provisions of Section 9.1(c) subject to 9.5, the terms set forth therein; (b) following the Closing relating to Parties agree that, excluding any Target Business Segmentclaim for injunctive or other equitable relief, the indemnification provisions of Section 5.4 and this Article VIII shall be IX are intended to provide the sole and exclusive remedies remedy as to all claims against either the Company and the Equity Holders (it being acknowledged and agreed that the Equity Holders shall have no liability under this Agreement apart from their beneficial interests in the Indemnity Escrow Fund and the Adjustment Escrow Fund), on the one hand, and Buyer, on the other hand, may incur arising from or relating to this Agreement and the agreements and documents contemplated hereby and the transactions contemplated hereby and thereby. In furtherance of the foregoing, from and after the Closing, the Parties for hereby waive, to the fullest extent permitted by applicable Law, any breach and all other rights, claims and causes of action (including rights of contributions, if any) known or unknown, foreseen or unforeseen, which exist or may arise in the representations future, that they may have against the Equity Holders, the Company, Buyer, as the case may be, arising under or warranties contained in this Agreement based upon any federal, state or local Law (including any such Law relating to such Target Business Segment environmental matters or the transfer thereof except in the case of fraud arising under or willful breach and (ii) notwithstanding based upon any securities Law, common Law or otherwise). Notwithstanding anything to the contrary contained hereinin this Section 9.6, no breach of any representation, warranty, covenant this Section 9.6 shall not operate to (a) interfere with or obligation contained herein shall give rise to any right on impede the part of either Party to rescind this Agreement or any operation of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following provisions of Article II providing for the Closing resolution of certain disputes relating to any Target Business Segmentthe Merger Consideration between the Parties and/or by the Accounting Firm, (b) limit the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies rights of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment seek equitable remedies (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek including specific performance or injunctive relief), (c) limit the rights of the Indemnified Persons pursuant to Section 5.5, (d) prevent or limit any claim related to fraud based on the representations and warranties set forth in Article III or Article IV by Buyer, Merger Sub or the Company in connection with the transactions contemplated by this Agreement, or (e) limit Buyer’s rights or any Equity Holder’s obligations under any Support Agreement. The Parties hereby waive and release any and all tort claims and causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any tort claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement).

Exclusive Remedies. Each Party acknowledges Nextel, Arch, PageNet SMR, SPV Holdings and agrees that (a) prior to the Closing relating to any Target Business SegmentSPV acknowledge that, other than in the case of actual fraud by Parent, the sole and exclusive remedies view of the Purchaser Parties for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any uniqueness of the transactions contemplated herebyby this Agreement, including any Closing a material breach or material failure to comply with the terms and obligations of Sections 1.01, 1.02, 1.03, 1.04, 1.06, 1.08, 4.01, 4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 5.01, 5.03 and 5.04 and 5.06 of this Agreement would cause irreparable harm to the parties for which there would not be an adequate remedy at law for money damages. Therefore, Nextel, Arch, PageNet SMR, SPV Holdings and SPV agree that has already occurred; and (c) following the Closing relating parties are entitled to seek specific performance and/or injunctive relief without the posting of bond or other security in addition to any Target Business Segmentother remedy to which it may be entitled hereunder or at law or in equity, the indemnification provisions in any court of this Article VIII shall be the sole and exclusive monetary remedies of the Parties competent jurisdiction for any breach or non-fulfillment noncompliance of such sections of this Agreement. Other than such equitable relief with respect to the breach or noncompliance of the sections of this Agreement described above, and except for the rights of Nextel, Arch or any of their respective affiliates under the Transaction Documents (as defined herein), the rights to indemnification under this Article 5 shall be the exclusive remedy under this Agreement for each of Nextel, Arch, PageNet SMR, SPV Holdings and SPV with respect to any claim for relief or any other remedy, including, without limitation for Costs, and none of Nextel, Arch, PageNet SMR, SPV Holdings or SPV nor any of their respective affiliates or any Persons claiming by or through them shall be entitled to pursue, and each hereby expressly waives as of the Closing, any and all other rights that may be otherwise available to them in respect of any covenant to the extent such covenant relates to such Target Business Segment (other than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)claim.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior Subject to the Closing relating to any Target Business SegmentSection 6.06, other than in the case of actual fraud by ParentSection 6.07 and Section 10.11, the parties acknowledge and agree that their sole and exclusive remedies remedy with respect to any and all claims (including Third Party Claims) (other than claims finally adjudicated, without possibility of appeal, that are determined to be arising from criminal activity or intentional misconduct on the Purchaser Parties part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant covenant, agreement or obligation contained set forth herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing otherwise relating to any Target Business Segmentthe subject matter of this Agreement, shall be pursuant to the indemnification provisions of set forth in this Article VIII shall be the sole and exclusive monetary remedies VIII. In furtherance of the Parties foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach or non-fulfillment of any covenant representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the extent such covenant relates subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to such Target Business Segment (other than those covenants the indemnification provisions set forth under Section 5.5(b)in this Article VIII. (b) THE PARTIES HERETO WAIVE AND AGREE NOT TO SEEK INDIRECT, Section 5.5(c)INCIDENTAL, Section 5.6PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS RELATED SOLELY TO SUCH CONSEQUENTIAL DAMAGES) WITH RESPECT TO ANY CLAIM OR DISPUTE ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)EXCEPT ONLY FOR SUCH DAMAGES WHICH ARE AWARDED TO A THIRD PARTY AND FOR WHICH INDEMNIFICATION IS SOUGHT PURSUANT TO THE TERMS OF THIS AGREEMENT.

Exclusive Remedies. Each Party acknowledges 12.4.1 The Parties agree that the rights and agrees that remedies Purchasers may have against Seller for breach of obligations set forth in this Agreement are solely governed by this Agreement, and the rights and remedies provided for by this Agreement shall be the exclusive remedies available to Purchasers. Any and all rights or remedies of any legal nature which Purchasers may otherwise have (a) prior in addition to the Closing relating to any Target Business Segment, other than claims for specific performance (primäre Erfüllungspflichten) and the rights and remedies provided for by this Agreement) against Seller in connection with the case sale and transfer of actual fraud by Parentthe Purchased Assets, the sole Purchased Contracts, the Purchased Intellectual Property and exclusive remedies the employment relationships of the Purchaser Parties for any breach of any Business Employees and the licensing of the Licensed Intellectual Property shall be excluded. In particular, without limiting the generality of the foregoing, Purchasers hereby waive any claims under statutory representations and warranties of Parent contained in Article III relating to such Target Business Segment (Section 434 et seqq. BGB), statutory contractual or the transfer thereof shall be, (i) in the event that each of the conditions pre-contractual obligations as set forth in Article VI has Sections 280 to 282 BGB and Section 311 BGB, frustration of contract (Section 313 BGB) or tort (Section 823 et seqq. BGB), and Purchasers shall not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the have any right to resign, cancel, rescind (anfechten) or otherwise terminate this Agreement pursuant or exercise any right or remedy which would have a similar effect. The applicability of Section 433 to 453 BGB (except for Section 9.1(c433 (1) subject (1) BGB and Section 433 (2) BGB) and Section 377 HGB, including any and all statutory claims thereunder, shall be excluded. The limitations in this Section 12.4 shall not apply to any rights or remedies based on intentional or wilful (vorsätzlich) behaviour. 12.4.2 The Parties are in agreement that Seller’s Representations are only designed for the terms specific remedies of Purchasers set forth therein; (b) following in Section § 10 above and the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties restrictions contained in this Agreement relating Section § 12 and that Seller’s Representations shall not serve to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of provide Purchasers with any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant to the extent such covenant relates to such Target Business Segment (other claims than those covenants set forth under Section 5.5(b), Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)in this Agreement.

Exclusive Remedies. Each Party acknowledges and agrees that (a) prior Subject to the Closing relating to any Target Business SegmentSection 2.07, other than in the case of actual fraud by ParentSection 6.06, and Section 9.12, the parties acknowledge and agree that their sole and exclusive remedies remedy with respect to any and all claims (other than claims arising from Fraud on the part of a party hereto in connection with the Purchaser Parties transactions contemplated by this Agreement) for any breach of any of the representations and warranties of Parent contained in Article III relating to such Target Business Segment or the transfer thereof shall be, (i) in the event that each of the conditions set forth in Article VI has not been satisfied or waived, refusal to close the purchase and sale of the Target Equity Interests relating to such Target Business Segment hereunder and (ii) the right to terminate this Agreement pursuant to Section 9.1(c) subject to the terms set forth therein; (b) following the Closing relating to any Target Business Segment, the indemnification provisions of this Article VIII shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement relating to such Target Business Segment or the transfer thereof except in the case of fraud or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant covenant, agreement or obligation contained set forth herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby, including any Closing that has already occurred; and (c) following the Closing otherwise relating to any Target Business Segmentthe subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this ARTICLE VIII. In furtherance of the foregoing, except with respect to Section 2.07, Section 6.06, and Section 9.12, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Article VIII Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ARTICLE VIII. Nothing in this Section 8.07 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled pursuant to Section 9.12 or to seek any remedy on account of any Fraud by any party hereto. (b) In furtherance of the foregoing, Buyer and Recruiter acknowledge and agree that set-off from the Promissory Note and, if applicable, the Earn-Out Consideration shall be the sole and exclusive monetary remedies remedy of Buyer following the Closing Date for Losses. In the event of a breach of the Parties Fundamental Warranties, Tax Warranties or Fraud by Seller or its Affiliates, Buyer shall have recourse against Seller for any breach or non-fulfillment of any covenant all such amounts payable pursuant to this Agreement to be first satisfied by reducing the amounts in the Promissory Note or the Indemnity Holdback Amount to the extent such covenant relates then available, and thereafter to such Target Business Segment (other than those covenants set forth under Section 5.5(b)be satisfied from Selling Shareholders, Section 5.5(c), Section 5.6, Section 5.9(e), Section 5.15 jointly and Section 5.18 for the enforcement of which a Party may also seek specific performance or injunctive relief)severally.