Common use of Limitation, Exclusivity Clause in Contracts

Limitation, Exclusivity. No Claim shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, for such Claim. Except as otherwise provided in an Ancillary Agreement or with respect to claims for equitable relief made with respect to breaches of any covenant or agreement contained in this Agreement or any of the Ancillary Agreements, each party hereto acknowledges and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement and the transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Article X, and, in furtherance of the foregoing, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, any and all rights, claims and causes of action they may have against the other party hereto or any of its Affiliates arising under or based upon any statutory or common law or otherwise to the extent relating to this Agreement or the transactions contemplated hereby, except that nothing herein shall limit the liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12. With respect to any Damages arising under this Agreement, Seller and Buyer agree that they shall only seek such Damages from Buyer or Seller, as applicable, and each party hereto hereby waives the right to seek Damages from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto or any director, officer or employee of such other party (or any of its Affiliates).

Limitation, Exclusivity. (a) No Claim with respect to a representation, warranty or covenant shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, 10.1 for such Claimrepresentation, warranty or covenant to expire. Except Other than (i) any dispute under Section 2.3 that is required to be decided by the Accounting Firm, (ii) as otherwise expressly provided in an this Section 10.7 regarding Fraud and injunctive and provisional relief (including specific performance) if the Closing occurs, (iii) as expressly provided in any Ancillary Agreement or with respect Agreement, and (iv) pursuant to claims for equitable relief made with respect to breaches of any covenant or agreement contained in the R&W Insurance Policy, Article IX and this Agreement or any of Article X provides the Ancillary Agreements, each exclusive means by which a party hereto acknowledges may assert and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement Claims, and Section 12.11 provides the transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Article X, andexclusive means by which a party may bring actions, in furtherance of the foregoingeach case, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, any and all rights, claims and causes of action they may have against the other party hereto (or any of its Affiliates arising Affiliates) under or based upon any statutory or common law or otherwise to the extent relating with respect to this Agreement or the transactions contemplated herebyherein or therein. Except for injunctive and provisional relief (including specific performance) if the Closing occurs and except as expressly provided in any Ancillary Agreement, each party hereby waives and releases any other remedies or claims that it may have against the other party (or any of its Affiliates) arising out of or in connection with this Agreement or the transactions contemplated herein or therein or relating to the Transferred Assets, the Excluded Assets, the Assumed Liabilities and the Excluded Liabilities (including, inter alia, any rights of contribution or recovery under CERCLA or other Environmental Laws) except that nothing herein shall limit the liability Liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12Fraud. With respect to any Damages Losses or other Liabilities arising under this Agreement, Seller and Buyer agree agrees that they it shall only seek such Damages Losses and Liabilities from Buyer or Seller, as applicable, and each party hereto Buyer hereby waives the right to seek Damages Losses or other Liabilities from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto Seller or any director, officer or employee of such other party Seller (or any of its Affiliates). (b) The provisions of this Article X shall not apply with respect to any matters relating to Taxes, other than (i) Section 10.1, (ii) Section 10.2, (iii) Sections 10.4(a), and (b) and (iii) Section 10.8(a).

Limitation, Exclusivity. (a) No Claim with respect to a representation, warranty or covenant shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, 10.1 for such Claimrepresentation, warranty or covenant to expire. Except After the Closing, other than (i) any dispute under Section 2.3 that is required to be decided by the Accounting Firm, (ii) any dispute under Section 2.4 that is required to be decided by the Actuary, (iii) regarding fraud and injunctive and provisional relief (including specific performance) and (iv) as otherwise expressly provided in an any Ancillary Agreement Agreement, this Article 10 provides the exclusive means by which a party may assert and remedy any and all claims, in each case, against the other party (or any of its Affiliates) under or with respect to claims for equitable relief made with respect to breaches of any covenant or agreement contained in this Agreement or any of the Ancillary Agreements, each party hereto acknowledges and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement and or the transactions contemplated hereby shall be pursuant herein or therein or relating to the indemnification provisions set forth in this Article XTransferred Assets, andthe Excluded Assets, in furtherance of the Transferred Equity Interests, the Transferred Entities, the Assumed Liabilities and the Excluded Liabilities. Without limiting the foregoing, after the Closing each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, releases any and all rights, other remedies or claims and causes of action they that it may have against the other party hereto (or any of its Affiliates Affiliates) with respect to matters arising under out of or based upon in connection with this Agreement or any statutory or common law or otherwise to the extent relating to this Ancillary Agreement or the transactions contemplated herebyherein or therein or relating to the Transferred Assets, the Excluded Assets, the Transferred Equity Interests, the Transferred Entities, the Assumed Liabilities and the Excluded Liabilities (including, inter alia, any rights of contribution or recovery under CERCLA or other Environmental Law) except that nothing herein shall limit the liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12fraud. With respect to any Damages Losses or other Liabilities arising under this Agreement, Seller and Buyer agree agrees that they it shall only seek such Damages Losses and Liabilities from Buyer or Seller, as applicable, and each party hereto Buyer hereby waives the right to seek Damages Losses or other Liabilities from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto Seller or any director, officer or employee of such other party Seller (or any of its Affiliates). If an Indemnified Party is indemnified for any Losses pursuant to this Agreement with respect to any Claim by a third party, then the appropriate Indemnifying Party will be subrogated to all rights and remedies of the Indemnified Party against such third party, and such Indemnified Party will reasonably cooperate with and assist the Indemnifying Party in asserting all such rights and remedies against such third party. (b) Notwithstanding any other provision herein, (i) Seller shall have no liability for any Loss under Section 10.2 relating to breach of the representations and warranties in Sections 5.4, 5.5(b), 5.14 or 5.16 or otherwise with respect to any Environmental Liability or any obligation to conduct or fund any assessment, response, removal, remediation, corrective or monitoring activity at any Business Real Property (collectively, any “Environmental Loss”) to the extent the cost, obligation, event, circumstance or condition that gave rise to such Environmental Loss (A) is the result of any reporting or disclosure to any Governmental Authority by Buyer, any Buyer Corporation or any of their respective Affiliates, representatives or agents (including the Transferred Entities) after the Closing Date or was discovered as a result of a Phase II or other intrusive sampling, testing or investigation conducted after the Closing Date by Buyer, any Buyer Corporation or any of their respective Affiliates, representatives or agents (including the Transferred Entities), except to the extent any such reporting, disclosure, sampling, testing or investigation was (1) required by Environmental Law or required to respond to an unsolicited inquiry, request, claim or demand by a Governmental Authority, (2) by or on behalf of Seller in connection with its obligations under Section 10.2 herein for the Specified Excluded Remediation Liabilities or the Other Excluded Remediation Liabilities, (3) to respond to, investigate, or otherwise remediate environmental conditions that would reasonably be expected to create an imminent and substantial endangerment to the environment or the health, safety and welfare of the Employees or the public or (4) in connection with a condition first discovered as a result of construction or essential maintenance activities conducted in the ordinary course of business and commencing after the Closing Date at, on or beneath the Business Real Property; (B) is the result of a site or facility closure or cessation of all or a portion of the operations at any location or change in use of any Business Real Property after the Closing Date to a use substantially unrelated to the use of such Business Real Property as of the date hereof; (C) provided that no such site or facility closure or cessation of operations after the Closing Date shall be deemed to relieve Seller of any obligation to comply with Environmental Law or any applicable Contract with any Governmental Authority relating to any assessment, response, removal, investigation, remediation, corrective action or monitoring activity at any Business Real Property which is being conducted by or on behalf of Seller at the time of such site or facility closure or cessation of operations in connection with Seller’s obligations under Section 10.2 herein for the Specified Excluded Remediation Liabilities or the Other Excluded Remediation Liabilities; (D) other than with respect to Specified Excluded Remediation Liabilities, arises out of or results from the repeal of, amendment to, or other change in any Environmental Law or Governmental Authorization issued thereunder in effect as of the Closing Date or the enactment or new interpretation of any Environmental Law after the Closing Date; (E) with respect to any Business Real Property, to the extent the cost of such Environmental Loss is increased, or the scope or extent of such Environmental Loss is exacerbated, due to an act or omission by a Person other than Seller, its affiliates, agents, contractors or subcontractors, unless such act or omission was at the direction of or under the supervision of any Governmental Authority; or (F) relates to the removal or abatement of asbestos or asbestos-containing materials located on or in structural components of the Business Real Property, the Transferred Tangible Personal Property or the tangible personal property of any Transferred Entity, which removal or abatement was not required by Environmental Law as of the Closing Date, and (ii) Seller shall direct and control all discussions, negotiations and Proceedings with or before Governmental Authorities or third parties with respect to any Environmental Loss that is subject to indemnification under Section 10.2, including the right, after notice to and consultation with Buyer, to settle or otherwise resolve any matter giving rise to or forming part of such Environmental Loss, including the placement of engineering or institutional controls, such as use or deed restrictions (except to the extent Seller has refused to indemnify Buyer under Section 10.2 herein for any such Environmental Loss, in which case Buyer shall have the right to direct, control, settle or resolve such Environmental Loss); provided that Seller shall keep Buyer reasonably informed regarding such discussions, negotiations and Proceedings, including providing copies upon request to the Buyer of Environmental Notices, correspondence, reports, submissions and work plans to be submitted to a Governmental Authority or a third party; provided further that Seller may not enter into any such settlement or resolution that would reasonably be expected to materially adversely affect Buyer’s operation of the Business or the subject property without the prior written consent of Buyer, which consent will not unreasonably be withheld, delayed or conditioned. Buyer may, at its cost and expense, participate in all discussions, negotiations or Proceedings with or before Governmental Authorities or third parties with respect to any such Environmental Loss. Notwithstanding any other provision herein, Buyer hereby grants to Seller and its consultants an irrevocable and fully paid-up license to enter upon, access and use the Business Real Property, the Transferred Tangible Personal Property and the tangible personal property of any Transferred Entity and Seller and Buyer shall use commercially reasonable efforts to cooperate with respect to utilities or services (such as wastewater treatment services) in order for Seller to meet its obligations with respect to any Environmental Loss that is subject to indemnification under Section 10.2; provided that, Seller shall conduct any assessment, remediation, response, removal, corrective or monitoring activities in a manner that does not unreasonably interfere with the ongoing operations or conduct of the Business, unless mandated to do so by a Governmental Authority; provided further, that such license granted herein will terminate at such time as all of Seller’s obligations under Section 10.2 terminate. (c) The provisions of this Article 10 shall not apply with respect to any matters relating to Taxes, other than (i) the proviso in the second sentence of Section 10.1 and (ii) Section 10.8(a). In the event of a conflict between Article 9 and Article 10 with respect to Losses other than Taxes, Article 9 shall control.

Limitation, Exclusivity. (a) No Claim with respect to a representation, warranty or covenant shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, 10.1 for such Claimrepresentation, warranty or covenant to expire. Except Other than (i) any dispute under Section 2.3 that is required to be decided by the Accounting Firm, (ii) any dispute under Section 2.4 that is required to be decided by the Actuary, (iii) as otherwise expressly provided in an this Section 10.7 regarding fraud and injunctive and provisional relief (including specific performance) if the Closing occurs (iv) as expressly provided in any Ancillary Agreement or with respect Agreement, and (v) pursuant to claims for equitable relief made with respect to breaches of any covenant or agreement contained in the R&W Insurance Policy, this Agreement or any of Article X provides the Ancillary Agreements, each exclusive means by which a party hereto acknowledges may assert and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement Claims, and Section 12.11 provides the transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Article X, andexclusive means by which a party may bring actions, in furtherance of the foregoingeach case, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, any and all rights, claims and causes of action they may have against the other party hereto (or any of its Affiliates arising Affiliates) under or based upon any statutory or common law or otherwise to the extent relating with respect to this Agreement or the transactions contemplated herebyherein or therein. Except for injunctive and provisional relief (including specific performance) if the Closing occurs and except as expressly provided in any Ancillary Agreement, each party hereby waives and releases any other remedies or claims that it may have against the other party (or any of its Affiliates) with respect to the matters arising out of or in connection with this Agreement or the transactions contemplated herein or therein or relating to the Transferred Assets, the Excluded Assets, the Transferred Equity Interests, the Transferred Entities, the Assumed Liabilities and the Excluded Liabilities (including, inter alia, any rights of contribution or recovery under CERCLA or other Environmental Law) except that nothing herein in this Agreement shall limit the liability Liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12fraud. With respect to any Damages Losses or other Liabilities arising under this Agreement, Seller and Buyer agree agrees that they it shall only seek such Damages Losses and Liabilities from Buyer or Seller, as applicable, and each party hereto Buyer hereby waives the right to seek Damages Losses or other Liabilities from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto Seller or any director, officer or employee of such other party Seller (or any of its Affiliates). If an Indemnified Party is indemnified for any Losses pursuant to this Agreement with respect to any Claim by a third party (other than the R&W Policy), then the appropriate Indemnifying Party will be subrogated to all rights and remedies of the Indemnified Party against such third party, and such Indemnified Party will reasonably cooperate with and assist the Indemnifying Party in asserting all such rights and remedies against such third party. (b) Notwithstanding any other provision herein, (i) Seller shall have no Liability for any Loss under Section 10.2 relating to breach of the representations and warranties in Section 5.14 or 5.16 or otherwise with respect to any Environmental Liability (collectively, any “Environmental Loss”) if the cost, obligation, event, circumstance or condition that gave rise to such Environmental Loss (A) is the result of any sampling, testing or investigation conducted after the Closing Date, except to the extent any such sampling, testing or investigation was required by Environmental Law or required to respond to an unsolicited inquiry, request, claim, Order, or demand by a Governmental Authority or if reasonably necessary to assess environmental, health or safety concerns evident from circumstances arising during the ordinary course of repair, maintenance or operation of the Business; (B) is the result of a change in use of any Business Real Property after the Closing; (C) arises out of or results from a change in any Environmental Law after the Closing Date; (D) to the extent the cost of such Environmental Loss is increased due to an act or omission by Buyer Indemnitee, its Affiliates, agents, contractors or subcontractors; (E) results from any failure to minimize costs and risks in a lowest cost commercially reasonable manner that is allowed under applicable Environmental Law; (F) relates to the removal or abatement of asbestos or asbestos-containing materials or lead-based paint located on or in structural components of the Business Real Property, the Transferred Tangible Personal Property or the tangible personal property of any Transferred Entity; or (G) is compensable by any third party (including insurance companies). (ii) Seller shall direct and control all discussions, negotiations and Proceedings with or before Governmental Authorities or third parties with respect to any Environmental Loss that is subject to indemnification under Section 10.2, including the right, after notice to and consultation with Buyer, to settle or otherwise resolve any matter giving rise to or forming part of such Environmental Loss, including the placement of engineering or institutional controls, such as use or deed restrictions; provided that Seller may not enter into any such settlement or resolution, including any use or deed restriction, that would materially adversely affect Buyer’s operation of the Business or the subject property as existing on the Closing Date without the prior written consent of Buyer, which consent will not unreasonably be withheld, delayed or conditioned. Buyer may, at its cost and expense, participate in all discussions, negotiations or Proceedings with or before Governmental Authorities or third parties with respect to any such Environmental Loss. Notwithstanding any other provision herein, Buyer hereby grants to Seller and its consultants an irrevocable and fully paid-up license to enter upon, access and use the Business Real Property, the Transferred Tangible Personal Property and the tangible personal property of any Transferred Entity in order to meet its obligations with respect to any Environmental Loss that is subject to indemnification under Section 10.2; provided that, Seller shall conduct any assessment, remediation, response, removal, corrective or monitoring activities in a manner that does not unreasonably interfere with the ongoing operations or conduct of the Business, unless mandated to do so by a Governmental Authority.

Limitation, Exclusivity. (a) No Claim with respect to a covenant shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, 11.1 for such Claimcovenant to expire. Except Other than (i) any dispute under Section 2.3 that is required to be decided by the Accounting Firm, (ii) regarding Fraud and injunctive and provisional relief (including specific performance) if the Closing occurs and (iii) as expressly provided herein or in any Ancillary Agreement, this Article XI provides the exclusive means from and after the Closing by which a party may assert and remedy any and all claims (including any claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise provided and whether predicated on common law, statute, strict liability or otherwise), and Section 13.10 provides the exclusive means by which a party may bring actions, in an Ancillary Agreement each case, against the other party (or any of its Affiliates) under or with respect to claims this Agreement or any Ancillary Agreement or the transactions contemplated herein or therein from and after the Closing. Except for equitable Fraud or injunctive and provisional relief made with respect to breaches of any covenant or agreement contained (including specific performance) if the Closing occurs and except as expressly provided in this Agreement or any of the Ancillary AgreementsAgreement, each party hereto acknowledges and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement and the transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Article X, and, in furtherance of the foregoing, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, releases any and all rights, other remedies or claims and causes of action they that it may have against the other party hereto (or any of its Affiliates arising under or based upon any statutory or common law or otherwise Affiliates) with respect to the extent relating to matters arising out of or in connection with this Agreement or an Ancillary Agreement or the transactions contemplated herebyherein or therein or relating to the Transferred Assets, except that nothing herein shall limit the liability Excluded Assets, the Transferred Equity Interests, the Transferred Companies, the Assumed Liabilities and the Excluded Liabilities (including, inter alia, any rights of any party hereto for fraud contribution or intentional misrepresentation recovery under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12other Environmental Law). With respect to any Damages Losses or other Liabilities arising under this Agreement, Seller and Buyer agree agrees that they it shall only seek such Damages Losses and Liabilities from Buyer or Seller, as applicable, and each party hereto Buyer hereby waives the right to seek Damages Losses or other Liabilities from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto Seller or any director, officer or employee of such other party officer, employee, Representatives, stockholders, members, successors and permitted assignees (or any of its Affiliates). If an Indemnified Party is indemnified for any Losses pursuant to this Agreement with respect to any Third Party Claim, then the appropriate Indemnifying Party will be subrogated to all rights and remedies of the Indemnified Party against such third party, and such Indemnified Party will reasonably cooperate with and assist the Indemnifying Party in asserting all such rights and remedies against such third party. Without limiting the generality of the foregoing, the Parties hereby irrevocably waive any right of rescission they may otherwise have or to which they may become entitled. (b) Notwithstanding any other provision herein, (i) Seller shall have no liability for any Loss under Section 11.2 relating to any Environmental Liability or any obligation to conduct or fund any assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring (collectively, any “Environmental Loss”) if the cost, obligation, event, circumstance or condition that gave rise to such Environmental Loss (A) is the result of any reporting or disclosure to any Governmental Authority, or was discovered as a result of any environmental or other intrusive or subsurface sampling, testing, investigation or analysis conducted, after the Closing Date, except to the extent any such reporting, disclosure, sampling, testing, investigation or analysis was required by Environmental Law pre-Closing or required to respond to an unsolicited and enforceable request, claim or demand by a Governmental Authority of competent jurisdiction; (B) is the result of a site or facility closure, cessation of all or a portion of the operations at any location or material change in use of any Business Real Property after the Closing; (C) arises out of or results from the repeal of, amendment to, or other change in any Environmental Law or Governmental Authorization issued thereunder in effect as of the Closing Date or the enactment or new interpretation of any Environmental Law after the Closing Date; (D) to the extent the cost of such Environmental Loss is increased, or the scope or extent of such Environmental Loss is exacerbated, due to a post-Closing act or omission by a Person other than Seller, its affiliates, agents, contractors or subcontractors, unless such act or omission was required by any Governmental Authority; or (E) relates to the removal or abatement of asbestos or asbestos-containing materials located on or in structural components of the Business Real Property, the Transferred Tangible Personal Property or the tangible personal property of any Transferred Company and (ii) Seller shall have the right, but not the obligation, to direct and control all discussions, negotiations and Proceedings with or before Governmental Authorities or third parties, and to conduct and control any assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring with respect to any Environmental Loss that is subject to indemnification under Section 11.2, including the right, after notice to and consultation with Buyer, to settle or otherwise resolve any matter giving rise to or forming part of such Environmental Loss, including the placement of engineering or institutional controls, such as use or deed restrictions; provided, however, that Seller may not enter into any such settlement or resolution that would reasonably be expected to unreasonably interfere with Buyer’s operation of the Business or the subject property without the prior written consent of Buyer, which consent will not unreasonably be withheld, delayed or conditioned. Buyer may, at its cost and expense, participate in all discussions, negotiations or Proceedings with or before Governmental Authorities or third parties with respect to any such Environmental Loss. Notwithstanding any other provision herein, Buyer hereby grants to Seller and its consultants an irrevocable, non-exclusive and fully paid-up license to enter upon, access and use the Business Real Property, the Transferred Tangible Personal Property and the tangible personal property of any Transferred Company in order to meet its obligations with respect to any Environmental Loss that is subject to indemnification under Section 11.2; provided, however, that Seller shall conduct any assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring in a manner that does not unreasonably interfere with the ongoing operations or conduct of the Business, unless such assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring is mandated by a Governmental Authority. With respect to any Environmental Loss that is subject to indemnification under Section 11.2, Seller shall have no liability or obligation to conduct any assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring, except to the extent such assessment, investigation, cleanup, removal, remediation, corrective action, response or monitoring is reasonably necessary to attain compliance with Environmental Laws and incorporates (i) the least stringent cleanup standards that, based upon the use classification (industrial, commercial or residential) of the subject Business Real Property, as of the Closing Date, are allowed under applicable Environmental Law and (ii) the least costly methods that are allowed under applicable Environmental Law to achieve such standards, including the use of engineering and institutional controls; provided, however, that Seller’s use of engineering and institutional controls does not unreasonably interfere with Buyer’s ownership or operation of the Business or the Transferred Assets without the prior written consent of Buyer, which consent will not unreasonably be withheld, delayed or conditioned.

Limitation, Exclusivity. No Claim based upon a breach of a representation, warranty or covenant shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date such representation, warranty or covenant expires as set forth in Section 10.01. If full recovery under any such Claim is not had within three months of such written notice, if applicablemediation under Section 11.13 must be initiated within 30 days following the end of such three-month period or such Claim shall be invalidated. This Article X provides the exclusive means by which a party may assert and remedy Claims, for such Claim. Except as otherwise provided in an Ancillary Agreement and Sections 11.12 and 11.13 provide the exclusive means by which a party may bring actions against the other party under or with respect to claims for equitable relief made with respect to breaches of any covenant or agreement contained in this Agreement or any of the Ancillary Agreements, each Agreement. Each party hereto acknowledges and agrees that from and after the Principal Closing, the sole and exclusive remedy of such party with respect to any and all claims under this Agreement and the transactions contemplated hereby shall be pursuant to the indemnification provisions set forth in this Article X, and, in furtherance of the foregoing, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, releases any and all rights, other remedies or claims and causes of action they that it may have against the other party hereto (or any of its Affiliates arising under or based upon any statutory or common law or otherwise Affiliates) with respect to the extent relating to matters arising out of or in connection with this Agreement or relating to the transactions contemplated herebyTransferred Assets, except that nothing herein shall limit the liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to Section 11.12misrepresentation. With respect to any Damages arising under this Agreement, Seller and Buyer agree agrees that they it shall only seek such Damages from Buyer Seller or Seller, as applicableits successors or permitted assigns, and each party hereto Buyer hereby waives the right to seek Damages from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto Seller or any director, officer or employee of such other party Seller (or any of its Affiliates).

Limitation, Exclusivity. (a) No Claim shall be made or have any validity unless the Indemnified Party shall have given written notice of such Claim to the Indemnifying Party prior to the date set forth in Section 10.01, if applicable, 8.1 for such Claim. Except Should the Closing occur, except as otherwise set forth in Section 3.2, the remedies provided in an Ancillary Agreement or with respect to claims for equitable relief made with respect to breaches of any covenant or agreement contained in this Agreement or any of the Ancillary Agreements, each party hereto acknowledges and agrees that from and after the Principal Closing, ARTICLE VIII will be the sole and exclusive remedy remedies of such the parties and their Affiliates and each of their respective stockholders, equityholders, officers, directors, employees, Affiliates, agents, Representatives, successors and assigns for any breach of or inaccuracy in any representation, warranty, covenant or obligation contained in this Agreement, in any Closing Certificate, the certificate delivered pursuant to Section 6.2(c)(iii) or the certificate delivered pursuant to Section 6.3(c)(iii); provided, however, that nothing in this Agreement is intended to (i) waive any claims for Fraud, (ii) limit any claims under the Representation and Warranty Insurance Policy or (iii) prohibit a party from commencing an action or proceeding for specific performance or injunction to which a party may be entitled (including any action to require a party hereto to consummate the transactions contemplated hereby). (b) To the extent a Claim is brought with respect to a Seller Fundamental Representation, Buyer agrees to first submit such Claim to the R&W Carrier for coverage under the terms and conditions of the Representation and Warranty Insurance Policy; provided that (i) Buyer shall only be required to (1) use commercially reasonable efforts to seek coverage under the Representations and Warranty Insurance Policy and (2) comply with the terms and conditions of the Representations and Warranty Insurance Policy; provided that any non-compliance with the preceding obligations that would not limit the Buyer’s recovery under the Representations and all claims Warranty Insurance Policy in respect of such Claim would not be deemed a breach of this Section 8.6(b) and (ii) in no event will the Buyer be obligated to initiate litigation against the R&W Carrier in order to recover under the Representations and Warranty Insurance Policy. Subject to the foregoing sentence, to the extent a Claim with respect to a Seller Fundamental Representation is not paid (in whole or in part) under the Representations and Warranty Insurance Policy the Buyer may pursue the unpaid portion of such Claim against Seller in accordance with this Agreement and the transactions contemplated hereby shall be ARTICLE VIII. Any Losses payable by Seller pursuant to the indemnification provisions terms of this ARTICLE VIII associated with such Claim shall be reduced by any proceeds received under the Representation and Warranty Insurance Policy with respect to such Claim. Notwithstanding anything in this Agreement to the contrary, Buyer may submit a Claim for a breach of a Seller Fundamental Representation against Seller at any time (after first submitting such Claim under the Representation and Warranty Insurance Policy as set forth in this Article X, and, in furtherance Section 8.6(b)) for the purpose of reserving its rights to bring such Claim prior to the expiration of the foregoing, each party hereto hereby waives and releases, and agrees to cause its Affiliates to waive and release, from and after the Principal Closing, any and all rights, claims and causes of action they may have against the other party hereto or any of its Affiliates arising under or based upon any statutory or common law or otherwise to the extent relating to this Agreement or the transactions contemplated hereby, except that nothing herein shall limit the liability of any party hereto for fraud or intentional misrepresentation or the right of any party hereto to enforce any arbitration decision rendered pursuant to applicable survival period set forth in Section 11.12. With respect to any Damages arising under this Agreement, Seller and Buyer agree that they shall only seek such Damages from Buyer or Seller, as applicable, and each party hereto hereby waives the right to seek Damages from or equitable remedies, such as injunctive relief, against any Affiliate of the other party hereto or any director, officer or employee of such other party (or any of its Affiliates)8.1.