Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereof, following the Closing, indemnification pursuant to this Article X shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactions, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree that: (i) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters); (ii) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, 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 excepting Fraud); and (iii) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 shall not be considered “remedies” for purposes of this Section 10.09 and shall not be limited by the terms of this Section 10.09.
Appears in 2 contracts
Samples: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct and for (i) claims based on Fraud solely with respect to any representation or warranty in this Agreement (ii) claims for specific performance injunctive or equitable remedies or to specifically enforce the terms of covenants and agreementsthis Agreement, including as provided in Section 11.13, and subject to Section 10.12 hereof(iii) and claims by the Buyer Indemnitees under the R&W Insurance Policy, following the Closing, indemnification pursuant to this Article X shall IX will be the sole and exclusive remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactions, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth Agreement. Nothing in this Article X. Section 9.05 shall limit a party’s right to bring a claim for Fraud solely with respect to any representation or warranty in this Agreement. Furthermore, Buyer Parent and Seller Parent each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree that, except in the case of Fraud solely with respect to any representation or warranty in this Agreement:
(ia) the parties Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated by this Agreement exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)not provided for in this Agreement;
(iib) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, ) 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);
(c) the provisions of and the limited remedies provided in this Article IX were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Purchase Price;
(d) after the Closing, and excepting Fraud)no Party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and
(iiie) the parties Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made or required to be made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.04 shall not be considered “remedies” for purposes of this Section 10.09 9.05 and shall not be limited by the terms of this Section 10.099.05.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (Modine Manufacturing Co)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct claims of actual fraud and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereofcovenants, following the Closing, indemnification pursuant to this Article X VIII shall be the sole and exclusive remedy of the parties Parties and any parties claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) Parties hereto shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability Liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. VIII. Furthermore, each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative Parties acknowledge and agree that, except in the case of actual fraud:
(i) the parties 8.11.1 The Parties have voluntarily agreed to define their rights, liabilities Liabilities and obligations respecting the Transactions transactions contemplated by this Agreement exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Agreement;
(ii) the 8.11.2 The sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement 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);
8.11.3 The provisions of and the limited remedies provided in this Article VIII were specifically bargained for among the Parties and were taken into account by the Parties in arriving at the Subscription Price and the Purchase Price;
8.11.4 After the Closing, and excepting Fraud)no Party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and
(iii) the parties 8.11.5 The Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller parties in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 shall not be considered “remedies” for purposes of this Section 10.09 and shall not be limited by the terms of this Section 10.09.
Appears in 1 contract
Samples: Master Reorganization and Subscription Agreement (GNC Holdings, Inc.)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct and for claims for specific performance of covenants covenants, injunctive or other equitable relief (including to prevent breaches of this Agreement), or resolution of the Adjustment Amount and agreements, and subject related matters by the Auditor pursuant to Section 10.12 hereof2.4 or 2.5, following the Closing, indemnification pursuant to this Article X XI shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and neither Buyer nor the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) Seller shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. XI. Furthermore, each of PEGC I, PEGC OP, the Contributors Buyer and the Contributors’ Representative Seller acknowledge and agree that:
(i) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) the sole and exclusive remedies for any breach of the terms and provisions of and the limited remedies provided in this Agreement and/or Article XI were specifically bargained for among the Ancillary Agreements (including any representations parties and warranties set forth herein, made were taken into account by the parties in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to arriving at the Transactions, 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 excepting Fraud); andPurchase Price;
(iii) after the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiationsClosing, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that or its Affiliates may seek the rescission of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 shall not be considered “remedies” for purposes of transactions contemplated by this Section 10.09 and shall not be limited by the terms of this Section 10.09.Agreement; and
Appears in 1 contract
Samples: Stock Purchase Agreement (Endo Health Solutions Inc.)
Indemnification Sole and Exclusive Remedy. (a) Except with respect to Fraud(i) for remedies that cannot be waived as a matter of applicable Law, Willful Misconduct and for claims (ii) as provided in Section 2.11, (iii) for specific performance and injunctive relief or (iv) in respect of covenants and agreementsclaims based on Fraud, and subject to Section 10.12 hereof, following the Closing, indemnification pursuant to this Article X shall be the sole and exclusive remedy of the parties hereto (on their own behalf and on behalf of any parties Person claiming by or through any party (them, including the Indemnified Parties) related acknowledge and agree that, from and after the Closing, their sole and exclusive remedy with respect to or arising from any and all claims for any breach of any representation, warranty, covenant or other agreement contained set forth in, or otherwise pursuant to, this Agreement and shall be pursuant to the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactions, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties indemnification provisions set forth in this Article VIII, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at Law or in equity, or otherwise.
(b) This Agreement may only be enforced against, and the Ancillary Agreements are contractual in nature only and subject any claim, action, suit or other Action based upon, arising out of, or related to the sole Transaction Documents, or the negotiation, execution or performance of the Transaction Documents, may only be brought against the Persons that are expressly named as parties hereto and exclusive remedies then only with respect to the specific obligations set forth herein with respect to such party, except in this Article X. Furthermorethe case of Fraud. In no event following the Closing shall the Indemnified Parties have any recourse against any Persons who are, each were or will be equityholders, directors or officers of PEGC IBuyer or Sellers (in their capacities as such), PEGC OPor any Affiliates (other than Sellers or Buyer, as applicable), partners, agents, or attorneys of any of such shareholders, directors or officers (in their capacities as such) (collectively, the Contributors and the Contributors’ Representative acknowledge and agree that:
“Exculpated Parties”), or their Affiliates (i) the parties have voluntarily agreed to define their rightsother than Sellers or Buyer, liabilities and obligations respecting the Transactions exclusively as applicable), in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Lawseach case, with respect to matters the Transaction Documents or otherwise relating to the transactions contemplated by Transactions.
(c) The provisions in this Agreement (including relating to indemnification and the limits imposed on the Indemnified Parties’ remedies with respect to any environmentalthis Agreement and the Transactions (including in this Article VIII) were specifically bargained for between sophisticated Persons, health or safety matters);
(ii) were specifically taken into account in the sole and exclusive remedies for any breach determination of the terms Purchase Price and provisions of this Agreement and/or were relied upon by the Ancillary Agreements (including any Buyer and Sellers in agreeing to provide their respective representations and warranties and indemnities (as applicable) set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, 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 excepting Fraud); and
(iii) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 shall not be considered “remedies” for purposes of this Section 10.09 and shall not be limited by the terms of this Section 10.09.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct and for claims for specific performance of covenants and agreementsto be performed in connection with, and subject to Section 10.12 hereofor after the Closing, following the Closing, indemnification pursuant to this Article X XII shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC IBuyer, PEGC OPMerger Sub, the ContributorsCompany, the Holder Representative or any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) Selling Member shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. XII. Furthermore, each of PEGC IBuyer, PEGC OPMerger Sub, the Contributors Company, and the Contributors’ Holder Representative (on behalf of itself and the Selling Members) acknowledge and agree that:
(i) the Selling Members and the parties have voluntarily agreed to define their rights, liabilities Liabilities and obligations respecting the Transactions Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and the Member Acknowledgment hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Agreement;
(ii) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, Merger and the other transactions contemplated by this Agreement 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 excepting Fraud); and;
(iii) the provisions of and the limited remedies provided in this Article XII were specifically bargained for among the parties and were taken into account by the parties in arriving at the Final Gross Merger Consideration;
(iv) after the Closing, no party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement;
(v) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction; and
(vi) Buyer and its Subsidiaries have provided management and other services to the Company and its Subsidiaries and certain officers, directors and stockholders of Buyer are serving, and may have served in the past, as an officer, director or advisor to the Company and its Subsidiaries and are or may be affiliated with, or are a direct or indirect beneficial owner of, one or more Selling Members, and in connection therewith, Buyer, its Subsidiaries and such officers, directors and stockholders of Buyer have had access to confidential and other information of the Company and its Subsidiaries in their capacities as service providers, officers, directors and advisors to the Company and its Subsidiaries, and, without limiting the representations set forth in Section 6.11 and Section 6.12, (x) none of the foregoing described relationships and access to Company confidential and other information (including in connection with any due diligence review undertaken by Buyer and its representatives in connection with this Agreement) shall impact any representations or warranties of the Company or of any Selling Member in this Agreement or in any certificate or any Annexes or Schedules to this Agreement, any breach of any such representation and warranty, or any Indemnification Claims of the Buyer Indemnified Parties under this Agreement or otherwise in respect thereof and (y) no knowledge of any such Person shall be attributable to Buyer or any of its Subsidiaries, in the case of each of clause (x) and clause (y), except for such knowledge of Buyer and its Subsidiaries in respect of SMSL’s areas of responsibility as “Manager” under the Seaspan Management Agreement . For the avoidance of doubt, any adjustments made to the Closing Final Gross Merger Consideration pursuant to Section 1.05 3.4 shall not be considered “remedies” for purposes of this Section 10.09 12.6 and shall not be limited by the terms of this Section 10.0912.6.
Appears in 1 contract
Samples: Merger Agreement (Seaspan CORP)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Fraud or Willful Misconduct Breach and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereofinjunctive or equitable remedies, following the Closing, (a) indemnification pursuant to this Article X shall IX will be the sole and exclusive remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any Surviving Pre-Closing Covenant or any covenant or agreement contained in this Agreement that by its nature is to be performed after the Closing, (b) except as otherwise specifically set forth in this Article IX, no Party shall be liable for any breach of or inaccuracy in any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employeesc) shall no Party will have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to shall automatically terminate at the sole and exclusive remedies set forth in this Article X. Closing without any further force or effect. Furthermore, each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative Parties acknowledge and agree that:
(ia) the parties Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Agreement;
(iib) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement 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, );
(c) the provisions of and excepting Fraud)the limited remedies provided in this Article IX were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Base Purchase Price; and
(iiid) after the parties each hereby acknowledge that Closing, no Party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transactionAgreement. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 2.05 shall not be considered “remedies” for purposes of this Section 10.09 9.07 and shall not be limited by the terms of this Section 10.099.07.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except for intentional fraud, claims under this Article X XI shall be the sole and exclusive remedy of the parties and any parties claiming Purchaser Indemnified Parties with respect to the transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary AgreementsIndemnification Escrow Funds shall be the sole source of recovery of the Purchaser Indemnified Parties. The parties recognize that any further recovery for breaches of representations and warranties under this Agreement by the Purchaser Indemnified Parties shall be under the R&W Insurance Policy (subject to the terms and conditions thereof). In furtherance of the foregoing, Purchaser and none each of PEGC Ithe Purchaser Indemnified Parties hereby waives, PEGC OPfrom and after the Closing, to the Contributorsfullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XI. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions each of this Agreement and, except for Fraud, Purchaser hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Purchaser Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XI were specifically bargained for between the parties hereto and were taken into account by the parties hereto in arriving at the Purchase Price;
(d) the parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Transaction and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Transaction or the other transactions contemplated by this Agreement 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 excepting Fraud); andand the parties hereto 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 not set forth in this Agreement;
(iiif) the parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For ; and
(g) for the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.04 shall not be considered “remedies” for purposes of this Section 10.09 11.06 and shall not be limited by the terms of this Section 10.0911.06.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct good faith claims based on Fraud and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereofinjunctive or equitable remedies, following the Closing, (a) indemnification pursuant to this Article X shall VIII will be the sole and exclusive remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any covenant or agreement contained in this Agreement that by its nature is to be performed after the Closing, (b) except as otherwise specifically set forth in this Article VIII, no Party shall be liable for any breach of or inaccuracy in any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employeesc) shall no Party will have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability Liability arising out of the negotiation, entry into or consummation of the Transactions, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject shall automatically terminate at the Closing without any further force or effect. Notwithstanding anything in this Agreement to the contrary and except with respect to Fraud, Purchaser, on behalf of its and its Affiliates, acknowledges and agrees that the sole and exclusive remedies set forth remedy of the Purchaser and its Affiliates for any claim related to, arising under or in connection with a breach of any representation or warranty contained in this Article X. Agreement shall be against the RWI Policy. Except in the event of Fraud, neither Seller nor any of its Affiliates shall have any direct or indirect Liability of any kind or nature in connection with the RWI Policy or to the insurer thereunder. The provisions of this Section 8.07 shall still apply (x) if the RWI Policy is never issued by the insurer thereunder (y) if the RWI Policy is revoked, cancelled or modified in any manner after issuance, or (z) if Purchaser makes a claim under the RWI Policy in respect of a breach of any representation or warranty of Seller or the Fluids Entities contained in this Agreement or any agreement, certificate or instrument delivered in connection with this Agreement and such claim is denied by the insurer thereunder. Furthermore, each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative Parties acknowledge and agree that:
(ia) the parties Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Transactions;
(iib) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, Transactions 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);
(c) the provisions of and the limited remedies provided in this Article VIII were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Base Purchase Price;
(d) after the Closing, and excepting Fraud)no Party or its Affiliates may seek the rescission of the Transactions; and
(iiie) the parties Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer Purchaser and an ordinary seller Seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Cash Consideration pursuant to Section 1.05 2.05 shall not be considered “remedies” for purposes of this Section 10.09 8.07 and shall not be limited by the terms of this Section 10.098.07.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except for intentional fraud, claims under this Article X XI shall be the sole and exclusive remedy of the parties and any parties claiming Acquiror Indemnified Parties with respect to the transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary AgreementsIndemnification Escrow Funds shall be the sole source of recovery of the Acquiror Indemnified Parties. The parties recognize that any further recovery for breaches of representations and warranties under this Agreement by the Acquiror Indemnified Parties shall be under the RWI Policy (subject to the terms and conditions thereof). In furtherance of the foregoing, Acquiror and none each of PEGC Ithe Acquiror Indemnified Parties hereby waives, PEGC OPfrom and after the Closing, to the Contributorsfullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XI. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions each of this Agreement and, except for Fraud, Acquiror hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Acquiror Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XI were specifically bargained for between the parties hereto and were taken into account by the parties hereto in arriving at the Purchase Price;
(d) the parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Transaction and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Transaction or the other transactions contemplated by this Agreement 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 excepting Fraud); andand the parties hereto 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 not set forth in this Agreement;
(iiif) the parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For ; and
(g) for the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 3.3 shall not be considered “remedies” for purposes of this Section 10.09 11.6 and shall not be limited by the terms of this Section 10.0911.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to FraudEach of the parties hereto acknowledges and agrees that, Willful Misconduct from and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to claims under this Article X XI shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Purchaser Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement Parties and the Ancillary AgreementsSeller Indemnified Parties with respect to the transactions contemplated by this Agreement, and none except (x) in the case of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies Fraud in connection with any making the representations and warranties of Purchaser or Seller, as applicable, (y) in connection with a dispute or payment obligations under Section 2.6 (Post-Closing Adjustment) (such dispute or payment obligation to be governed exclusively by Section 2.6), or (z) in connection with a breach or threatened breach of the provisions of Section 7.1 (Indemnification and Insurance), Section 7.2 (Employment Matters), Section 7.4 (Resale Shelf Registration Statement), Section 8.3 (Potential IP Transaction), Section 8.4 (Tax Matters), Section 8.5 (Non-Solicitation; No Hire; Non-Disparagement) and Section 11.7 (Release of Escrow) (in which case it is accordingly agreed that the parties to this Agreement shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent or cure a breach or threatened breach of such provisions and to enforce specifically the terms and provisions of this Agreement or any Ancillary Agreement or any other liability arising out pursuant to Section 12.14 (Enforcement)) (the foregoing (x) – (z), the “Exclusive Remedy Exceptions”). In furtherance of the negotiationforegoing, entry into or consummation each of Purchaser, on behalf of itself and each of the TransactionsPurchaser Indemnified Parties, whether and Seller, on behalf of itself and each of the Seller Indemnified Parties, hereby waives, from and after the Closing, to the fullest extent permitted under applicable Law, any and all rights, claims, and causes of action it may have against any indemnifying party relating to the subject matter of this Agreement based on contractupon predecessor or successor liability, contribution, tort, strict liability, other Laws liability or otherwiseany Law or otherwise (except with respect to the Exclusive Remedy Exceptions). All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XI (except with respect to the Exclusive Remedy Exceptions). Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) Except as set forth in this Agreement, including the parties have voluntarily agreed to define their rightsExclusive Remedy Exceptions, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, Purchaser hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Purchaser Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XI were specifically bargained for between the parties hereto and were taken into account by the parties hereto in arriving at the Purchase Price;
(d) the parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement shall be those remedies available at law 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 excepting Fraud); and
(iiif) the parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.6 shall not be considered “remedies” for purposes of this Section 10.09 11.6 and shall not be limited by the terms of this Section 10.0911.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the Parties acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except in the case of fraud, claims under this Article X XII shall be the sole and exclusive remedy of with respect to the parties and any parties claiming transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreementsfunds available in the Indemnification Escrow Account shall be the sole source of recovery of the Parent Indemnified Parties. In furtherance of the foregoing, each of the Parties and none each of PEGC Ithe Parent Indemnified Parties hereby waives, PEGC OPfrom and after the Closing, to the Contributorsfullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party and its Affiliates, officers, directors, employees, agents and representatives relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise; provided, that, notwithstanding anything to the contrary contained herein, this Section 12.6 shall not relieve any Party for any liability for fraud. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XII. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties provisions of and the limited remedies provided in this Article XII were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Aggregate Consideration;
(b) the Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, 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 excepting Fraud); and
(iiic) the parties Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 Adjustment Amount shall not be considered “remedies” for purposes of this Section 10.09 12.6 and shall not be limited by the terms of this Section 10.0912.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct and for claims for specific performance of covenants and agreements, and subject injunctive or equitable remedies or with respect to Section 10.12 hereoffraud, following the Closing, indemnification pursuant to this Article X XII shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC IBuyer, PEGC OPMerger Sub, the ContributorsCompany, the Holder Representative or any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) Pre-Closing Holder shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. XII. Furthermore, each of PEGC IBuyer, PEGC OPMerger Sub, the Contributors Company, the Holder Representative (on behalf of itself and the Contributors’ Representative Pre-Closing Holders) acknowledge and agree that:
(i) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) other than with respect to fraud, the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, Merger and the other transactions contemplated by this Agreement shall be those remedies available at law 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);
(iii) the provisions of and the limited remedies provided in this Article XII were specifically bargained for among the parties and were taken into account by the parties in arriving at the Merger Consideration (and the Cash Per Fully-Diluted Common Share);
(iv) after the Closing, and excepting Fraud)no party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and
(iiiv) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Merger Consideration pursuant to Section 1.05 3.4 shall not be considered “remedies” for purposes of this Section 10.09 12.7 and shall not be limited by the terms of this Section 10.0912.7.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except for intentional fraud, claims under this Article X XII shall be the sole and exclusive remedy of the parties and any parties claiming Acquiror Indemnified Parties with respect to the transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary AgreementsIndemnification Escrow Funds (or the Special Indemnification Escrow Funds, as applicable) shall be the sole source of recovery of the Acquiror Indemnified Parties. The parties recognize that any further recovery for breaches of representations and none warranties under this Agreement by the Acquiror Indemnified Parties shall be under the RWI Policy (subject to the terms and conditions thereof). In furtherance of PEGC Ithe foregoing, PEGC OPAcquiror, Merger Sub and each of the ContributorsAcquiror Indemnified Parties hereby waives, from and after the Closing, to the fullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XII. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties have voluntarily agreed to define their rights, liabilities each of Acquiror and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, Merger Sub hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Acquiror Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XII were specifically bargained for between the parties hereto and were taken into account by the parties hereto in arriving at the Merger Consideration;
(d) the parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Merger or the other transactions contemplated by this Agreement 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 excepting Fraud); andand the parties hereto 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 not set forth in this Agreement;
(iiif) the parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For ; and
(g) for the avoidance of doubt, any adjustments made to the Closing Merger Consideration pursuant to Section 1.05 3.4 shall not be considered “remedies” for purposes of this Section 10.09 12.6 and shall not be limited by the terms of this Section 10.0912.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraudclaims based on Fraud solely in respect of any representation or warranty expressly given in this Agreement, Willful Misconduct and for claims for specific performance of covenants injunctive or equitable remedies, claims under Section 7.11 and agreements, and subject to Section 10.12 hereofclaims under the R&W Insurance Policy, following the Closing, indemnification pursuant to this Article X shall IX will be the sole and exclusive remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall neither Buyer nor Seller will have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. IX. Nothing in this Section 9.05 shall limit a party’s right to bring a claim for Fraud in respect of any representation or warranty expressly given in this Agreement. Furthermore, each of PEGC I, PEGC OP, the Contributors Buyer and the Contributors’ Representative Seller acknowledge and agree that, except in the case of Fraud solely in respect of any representation or warranty expressly given in this Agreement:
(ia) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated by this Agreement exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), or any Action otherwise arising out of or related to the Transactions, 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 excepting Fraud); and
(iiib) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations provisions of sophisticated parties derived from arm’s-length negotiations, and the parties limited remedies provided in this Article IX were specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer bargained for between the Parties and an ordinary seller were taken into account by the Parties in an arm’s-length transactionarriving at the Purchase Price. For the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.05 shall not be considered “remedies” for purposes of this Section 10.09 9.05 and shall not be limited by the terms of this Section 10.099.05.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the Parties acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except for intentional fraud, claims under this Article X XI shall be the sole and exclusive remedy of the parties Acquiror Indemnified Parties with respect to the transactions contemplated by this Agreement. In furtherance of the foregoing, Acquiror and any parties claiming by or through any party (including each of the Acquiror Indemnified Parties) related Parties hereby waives, from and after the Closing, to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributorsfullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XI. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions each of this Agreement and, except for Fraud, Acquiror hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Acquiror Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XI were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Purchase Price;
(d) the Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transaction and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Transaction or the other transactions contemplated by this Agreement 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 excepting Fraud); andand the Parties hereby agree that no Party 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 not set forth in this Agreement;
(iiif) the parties Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For ; and
(g) for the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 3.3 shall not be considered “remedies” for purposes of this Section 10.09 11.6 and shall not be limited by the terms of this Section 10.0911.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the Parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except in the event of actual fraud, claims under this Article X XII shall be the sole and exclusive remedy of the parties and any parties claiming Buyer Indemnified Parties with respect to the transactions contemplated by or through any party (including this Agreement and, except as otherwise provided for herein, the Indemnity Escrow Funds shall be the sole source of recovery of the Buyer Indemnified Parties) related . In furtherance of the foregoing, Buyer and Merger Sub, on behalf of themselves and on behalf of the Buyer Indemnified Parties, hereby waive, from and after the Closing, to or arising from the fullest extent permitted under applicable Law, except in the event of actual fraud, any breach of any representationand all rights, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreementsclaims, and none causes of PEGC I, PEGC OP, action it may have against any indemnifying party relating to the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and and, except in the event of actual fraud, subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XII. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(i) after the parties Closing Date, none of the Buyer Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(ii) the provisions of and the limited remedies provided in this Article XII were specifically bargained for between the Parties hereto and were taken into account by the Parties hereto in arriving at the Merger Consideration;
(iii) the Parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Agreement;
(iiiv) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Merger and the other transactions contemplated by this Agreement 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, and excepting Fraud)except in the event of actual fraud, the Parties hereto 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, representations or warranties, or failures to disclose, not set forth in this Agreement; and
(iiiv) the parties Parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties Parties hereto specifically acknowledge that no party Party hereto has any special relationship with another party Party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Merger Consideration pursuant to Section 1.05 3.4 shall not be considered “remedies” for purposes of this Section 10.09 12.6 and shall not be limited by the terms of this Section 10.0912.6.
Appears in 1 contract
Samples: Merger Agreement (Envision Healthcare Holdings, Inc.)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud(a) claims based on Fraud solely in respect of any representation or warranty expressly given in this Agreement or in any certificate delivered by Seller pursuant to this Agreement, Willful Misconduct and for (b) claims for specific performance of covenants and agreementsinjunctive or equitable remedies, and subject (c) claims filed under the R&W Insurance Policy, (d) claims pursuant to Section 10.12 hereof2.05 or (e) claims expressly permitted by the other Transaction Documents, following the Closing, indemnification pursuant to this Article X shall IX will be the sole and exclusive monetary remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary AgreementsAgreement, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall neither Buyer nor Seller will have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. IX. Nothing in this Section 9.08 shall limit a party’s right to bring a claim for Fraud to the extent such claim cannot be waived as a matter of Delaware public policy with respect to contracts as contemplated by Abry Partners V, L.P. v. F&W Acquisition LLC, 891 A.2d 1032 (Del. Ch. 2006). Furthermore, each of PEGC I, PEGC OP, the Contributors Buyer and the Contributors’ Representative Seller acknowledge and agree that, except in the case of Fraud solely in respect of any representation or warranty expressly given in this Agreement or in any certificate delivered by Seller pursuant to this Agreement:
(ia) the parties Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters)Agreement;
(iib) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement 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);
(c) the provisions of and the limited remedies provided in this Article IX were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Purchase Price;
(d) after the Closing, and excepting Fraud)no Party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and
(iiie) the parties Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties Parties specifically acknowledge that no party Party has any special relationship with another party Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction; and
(f) in furtherance and not in limitation of any of the foregoing in this Article IX, each Party (on behalf of itself and its Affiliates) acknowledges and agrees that no Financing Source shall have Liability for any claims or Damages to the Seller Indemnitees in connection with this Agreement, the Financing or the transactions contemplated hereby or thereby. For the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.05 shall not be considered “remedies” for purposes of this Section 10.09 9.08 and shall not be limited by the terms of this Section 10.099.08.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to (a) Fraud, Willful Misconduct and for (b) claims for injunctive, specific performance of covenants and agreements, and subject or other similar equitable remedies pursuant to Section 10.12 hereof10.13 and (c) claims under the R&W Insurance Policy, following the Closing, indemnification pursuant to this Article X shall VIII will be the sole and exclusive remedy of the parties Parties and any parties Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC I, PEGC OP, the Contributors, any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall neither Buyer nor Seller will have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. VIII. Nothing in this Section 8.06 shall limit a party’s right to bring a claim for Fraud. Furthermore, each of PEGC I, PEGC OP, the Contributors Buyer and the Contributors’ Representative Seller acknowledge and agree that:
, except in the case of Fraud solely in respect of any representation or warranty expressly given in this Agreement: (ia) the parties Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement Agreement; (including with respect to any environmental, health or safety matters);
(iib) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement 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 excepting Fraud); and
(iii) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration pursuant to Section 1.05 shall not be considered “remedies” for purposes of this Section 10.09 and shall not be limited by the terms of this Section 10.09.79
Appears in 1 contract
Samples: Securities Purchase Agreement (Centerpoint Energy Inc)
Indemnification Sole and Exclusive Remedy. Except with respect to claims to the extent based on Fraud, Willful Misconduct and for claims for specific performance of covenants and agreements, and subject to Section 10.12 hereof, following the Closing, indemnification pursuant to this Article X XII shall be the sole and exclusive remedy of the parties Parties and any parties Parties claiming by or through any party Party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreements, and none of PEGC IBuyer, PEGC OPMerger Sub, the ContributorsCompany, the Holder Representative or any Contributed Company or the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) Pre-Closing Holder shall have any other rights or remedies in connection with any breach of this Agreement or any Ancillary Agreement or any other liability arising out of the negotiation, entry into or consummation of the Transactionstransactions contemplated by this Agreement, whether based on contract, tort, strict liability, other Laws or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. XII. Furthermore, each of PEGC IBuyer, PEGC OPMerger Sub, the Contributors Company, the Holder Representative (on behalf of itself and the Contributors’ Representative Pre-Closing Holders) acknowledge and agree that, except in the case of Fraud:
(i) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions Merger and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, and hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action otherwise arising out of or related to the Transactions, Merger and the other transactions contemplated by this Agreement 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);
(iii) the provisions of and the limited remedies provided in this Article XII were specifically bargained for among the parties and were taken into account by the parties in arriving at the Merger Consideration (and the Per Fully-Diluted Merger Consideration);
(iv) after the Closing, and excepting Fraud)no party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and
(iiiv) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’sarm's-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’sarm's-length transaction. For the avoidance of doubt, any adjustments made to the Closing Merger Consideration pursuant to Section 1.05 3.4 shall not be considered “remedies” for purposes of this Section 10.09 12.11 and shall not be limited by the terms of this Section 10.0912.11.
Appears in 1 contract
Samples: Merger Agreement (Meritor Inc)
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to except for intentional fraud, claims under this Article X XI shall be the sole and exclusive remedy of the parties and any parties claiming Purchaser Indemnified Parties with respect to the transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary AgreementsIndemnification Escrow Funds shall be the sole source of recovery of the Purchaser Indemnified Parties. The parties recognize that any further recovery for breaches of representations and warranties under this Agreement by the Purchaser Indemnified Parties shall be under the RWI Policy (subject to the terms and conditions thereof). In furtherance of the foregoing, Purchaser and none each of PEGC Ithe Purchaser Indemnified Parties hereby waives, PEGC OPfrom and after the Closing, to the Contributorsfullest extent permitted under applicable Law, any Contributed Company or and all rights, claims and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each XI. Without limiting the generality of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree thatforegoing:
(ia) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions each of this Agreement and, except for Fraud, Purchaser hereby waive waives any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(iib) after the Closing Date, none of the Purchaser Indemnified Parties may seek the rescission of the transactions contemplated by this Agreement;
(c) the provisions of and the limited remedies provided in this Article XI were specifically bargained for between the parties hereto and were taken into account by the parties hereto in arriving at the Purchase Price;
(d) the parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Transaction and the other transactions contemplated hereby exclusively in contract pursuant to the express terms and provisions of this Agreement;
(e) the sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, Transaction or the other transactions contemplated by this Agreement 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 excepting Fraud); andand the parties hereto 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 not set forth in this Agreement;
(iiif) the parties hereto each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, negotiations and the parties hereto specifically acknowledge that no party hereto has any special relationship with another party hereto that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For ; and
(g) for the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 3.3 shall not be considered “remedies” for purposes of this Section 10.09 11.6 and shall not be limited by the terms of this Section 10.0911.6.
Appears in 1 contract
Indemnification Sole and Exclusive Remedy. Except with respect to Fraud, Willful Misconduct Each of the parties hereto acknowledges and for claims for specific performance of covenants agrees that from and agreements, and subject to Section 10.12 hereof, following after the Closing, indemnification pursuant to claims under this Article X XII shall be the sole and exclusive remedy of the parties Acquiror Indemnified Parties and any parties claiming the Holders with respect to the transactions contemplated by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in, or otherwise pursuant to, this Agreement and the Ancillary Agreementsfunds in the Indemnification Escrow Funds shall be the sole source of recovery of the Acquiror Indemnified Parties, except, in each case and subject to Section 12.5, with respect to claims relating to breaches of the Seller Representations or the matters indemnifiable pursuant to Section 12.2(a)(y) or (z). In furtherance of the foregoing, Acquiror and each of the Acquiror Indemnified Parties, on the one hand, and none each of PEGC Ithe Holders, PEGC OPon the other hand, hereby waives, from and after the ContributorsClosing, to the fullest extent permitted under applicable Law, any Contributed Company or and all rights, claims, and causes of action it may have against any indemnifying party relating to the Contributors’ Representative (or, for the sake of clarity, any of their respective partners, members, shareholders, control Persons or employees) shall have any other rights or remedies in connection with any breach subject matter of this Agreement based upon predecessor or any Ancillary Agreement or any other liability arising out of the negotiationsuccessor liability, entry into or consummation of the Transactions, whether based on contractcontribution, tort, strict liability, other Laws liability or any Law or otherwise. All representations and warranties set forth in this Agreement and the Ancillary Agreements are contractual in nature only and subject to the sole and exclusive remedies set forth in this Article X. Furthermore, each of PEGC I, PEGC OP, the Contributors and the Contributors’ Representative acknowledge and agree that:
(i) the parties have voluntarily agreed to define their rights, liabilities and obligations respecting the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and, except for Fraud, hereby waive any statutory and common law remedies, including remedies that may be available under Environmental Laws, with respect to matters relating to the transactions contemplated by this Agreement (including with respect to any environmental, health or safety matters);
(ii) the XII. The sole and exclusive remedies for any breach of the terms and provisions of this Agreement and/or the Ancillary Agreements (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement), ) or any Action claim or cause of action otherwise arising out of or related to the Transactions, transactions contemplated by this Agreement shall be those remedies available at law 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 excepting Fraud); and
(iii) the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the parties specifically acknowledge that no party has any special relationship with another party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. For the avoidance of doubt, any adjustments made to the Closing Consideration Purchase Price pursuant to Section 1.05 2.4 shall not be considered “remedies” for purposes of this Section 10.09 12.7 and shall not be limited by the terms of this Section 10.0912.7.
Appears in 1 contract
