Common use of Limitation on Actions Clause in Contracts

Limitation on Actions. (a) The representations and warranties contained herein and given in the agreements, instruments, documents and certificates delivered at the Closing pursuant to this Agreement shall survive the Closing for two (2) years, except for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant or agreement prior to its expiration date. (b) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates). (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person be entitled to duplicate compensation with respect to the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision of this Agreement and the various documents delivered in connection with the Closing.

Limitation on Actions. (a) The representations and warranties contained herein and given in the agreements, instruments, documents and certificates delivered at the Closing pursuant to this Agreement shall survive the Closing for two (2) years, except for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement Parties’ indemnity obligations hereunder with respect to such a representation, warranty, covenant covenant, or agreement prior shall continue as to its expiration datesuch representation, warranty, covenant, or agreement only until the applicable Termination Date , except in each case as to matters for which a Claim Notice has been delivered to the Indemnifying Party on or before the Termination Date. The indemnity obligations with respect to the Specified Liabilities shall survive Closing until the one-year anniversary of the Closing Date. (b) The Notwithstanding anything to the contrary contained elsewhere in this Agreement: (1) Seller shall not have any liability under this ‎Article X for any individual Loss that does not exceed $250,000; (2) Subject to ‎Section 10.4(b)(1), Seller shall not have any liability under this ‎Article X unless and until the aggregate amount of any Damages the liability for all Losses for which an Indemnified Person Claim Notices are timely delivered by Buyer and for which Buyer is eligible for indemnity under ‎Section 10.4(b)(1) exceeds a deductible amount equal to 3% of the Aggregate Consideration, after which point Buyer (or Buyer Indemnitees) shall be entitled to indemnity under this Article 9 shall be reduced by the amount claim Losses only in excess of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates).that amount; (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d3) In no event shall any Indemnified Person Sellers aggregate liability to Buyer and Buyer Indemnitees under ‎Section 10.2(a)(2) exceed the value of the Escrowed Unit Consideration, except in the case of breaches of the Seller Fundamental Representations or in the case of actual Fraud; and (4) In no event shall Sellers’ aggregate liability arising out of the indemnification obligations under ‎Article X exceed the Aggregate Consideration, and Buyer waives and releases and shall have no recourse against Seller pursuant to ‎Article X or under or by reason of this Agreement or the transactions contemplated hereunder in excess of the Aggregate Consideration. (c) Notwithstanding anything else to the contrary contained elsewhere in this Agreement, Seller’s aggregate liability to Buyer for a breach of the Special Warranty with respect to any Property shall not exceed the Allocated Value of such Property. (d) Notwithstanding anything to the contrary in this Agreement, solely for purposes of determining the amount of Losses that are the subject matter of an indemnification or reimbursement claim hereunder with respect to such representations and warranties (and not for purposes of determining whether there is any breach), such representations and warranties shall be read without regard and without giving effect to the terms “material” or “Material Adverse Effect” or similar terms, phrases or qualifiers contained in such representation or warranty. (e) TO THE FULLEST EXTENT PERMITTED BY LAW, A PARTY SHALL BE ENTITLED TO THE LIMITATIONS ON LIABILITY HEREUNDER, IN ACCORDANCE WITH THE TERMS HEREOF, REGARDLESS OF WHETHER THE APPLICABLE LOSS IS THE RESULT OF (IN WHOLE OR IN PART) THE GROSS, SOLE, ACTIVE, PASSIVE, CONCURRENT, OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY, OTHER FAULT OR THE VIOLATION OF LAW, IN EACH CASE, OF OR BY SUCH PARTY. No Buyer Indemnitees or Seller Indemnitees shall be entitled to duplicate compensation recover any Losses under any provision of this ‎Article X to the extent Buyer or Seller, respectively, are compensated for such Losses under ‎Article II or such Buyer Indemnitee or Seller Indemnitee, respectively, has received payment for such Losses under any provision of this Agreement. (f) In no event may Buyer or any of its Affiliates initiate a Proceeding alleging or asserting that any Seller or any other Person is liable for Fraud in connection with this Agreement or any of the acts or transactions contemplated hereunder unless such alleged Fraud (i) specifically relates to a matter with respect to which Seller remains responsible for Fraud by the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision express terms of this Agreement and agreement, or (ii) does not relate to any representation, warranty, statement, or information made or communicated, orally or in writing, with respect to which Xxxxx has disclaimed reliance. Further, no Seller shall have any liability for Fraud of another Seller or Person unless such Xxxxxx committed or participated in the various documents delivered in connection with the ClosingFraud of such other Seller or Person.

Limitation on Actions. (a) The representations and warranties contained herein of the Seller in Section 6 and given the covenants and agreements of Seller in the agreements, instruments, documents and certificates delivered at Section 12 shall survive the Closing pursuant to for a period of three (3) months after Closing. All other representations, warranties and covenants of Seller shall terminate as of the Closing Date. (b) The remainder of this Agreement shall survive the Closing for two (2) yearswithout time limit except as may otherwise be expressly provided herein. Representations, except for the representations warranties, covenants and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant or agreement prior to its expiration date. (bc) The indemnities in Section 23(d) shall terminate as of the termination date of each respective representation, warranty, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 23(c) shall continue without time limit. (d) Seller shall not have any liability for any indemnification under Section 23 until and unless the aggregate amount of the liability for all Damages for which Claim Notices are delivered by Buyer exceeds two percent (2%) of the unadjusted Sale Price, and then only to the extent the amount of such Damages exceeds two percent (2%) of the unadjusted Sale Price. (e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify Buyer under Section 23 for aggregate Damages in excess of twenty five percent (25%) of the unadjusted Sale Price. (f) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 Section 23 shall be reduced by the amount of any insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates). (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person be entitled to duplicate compensation with respect to the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision of this Agreement and the various documents delivered in connection with the Closing.

Limitation on Actions. (a) The representations and warranties contained herein of Seller in Article 4 (excluding, for purposes of clarity, the Seller Fundamental Representations and Seller’s representations and warranties in Sections 4.3 and 4.7), the corresponding representations, warranties, and affirmations given in the agreements, instruments, documents and certificates certificate delivered by Seller at the Closing pursuant to Section 8.2(f), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representations and warranties of Seller set forth in Section 4.3 shall survive the Closing for the applicable statute of limitations period plus thirty (30) days and the representations and warranties of Seller set forth in Section 4.7 shall survive the Closing until the Cut-Off Date. The representations and warranties of Purchaser in Article 5 (excluding the Purchaser Fundamental Representations), and the corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.3(f), shall, in each case, survive the Closing for a period of twelve (12) months. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing until fully performed, subject to the applicable limitations set forth in this Section 11.6. The remainder of this Agreement shall survive the Closing for two (2) yearsand delivery of the Assignment and Bill of Sale without time limit except as may otherwise be expressly provided herein. Representations, except for the representations warranties, covenants, and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). (b) The indemnities in Sections 11.3(a)(i), 11.3(a)(ii), 11.3(a)(iii)(B), 11.3(b)(ii), and 11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification thereunder, except in each case as to matters for which a bona fide specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). The indemnity in Section 11.3(b)(i) shall survive the Closing (i) as set forth in Sections 2.3 and 2.4 with respect to Section 11.2(b), (ii) for the applicable statute of limitations period plus thirty (30) days with respect to Section 11.2(c), (iii) for a period of three (3) years with respect to Section 11.2(i), and (iv) without time limit with respect to Sections 11.2(a), 11.2(d), 11.2(e), 11.2(f), 11.2(g), and 11.2(h). The indemnities in Section 11.3(a)(iii)(A) shall continue without time limit. (c) Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), for an individual matter until and unless the amount of the liability for Damages with respect to which Seller an obligation to indemnify the Purchaser Group pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) exceeds One Hundred Twenty-Five Thousand Dollars ($125,000) (the “Individual Indemnity Threshold”). Without limiting the foregoing, Seller shall not have any liability for any indemnification under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3) until and unless the aggregate amount of the liability for all Damages (i) for which Claim Notices are delivered by Purchaser under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), (ii) with respect to which Seller has an obligation to indemnify Purchaser pursuant to the terms of Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties of Seller in Section 4.3), and (iii) which exceed the Individual Indemnity Threshold exceeds an amount equal to one and three quarters of one percent (1.75%) of the Unadjusted Purchase Price, and then only to the extent such Damages exceed an amount equal to one and three quarters of one percent (1.75%) of the Unadjusted Purchase Price. (d) Purchaser shall not have any liability for any indemnification under Sections 11.3(a)(i) and 11.3(a)(ii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations, for which the following limitations shall not apply), for an individual matter until and unless the amount of the liability for Damages with respect to which Purchaser has an obligation to indemnify the Seller Group pursuant to the terms of Section 11.3(a)(i) and 11.3(a)(ii) (except for breaches or inaccuracies of any of the Purchaser Fundamental Representations) exceeds the Individual Indemnity Threshold. (e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify Purchaser (i) under Section 11.3(b)(iii) (except for breaches or inaccuracies of any of the Seller Fundamental Representations and/or the representations and warranties in Section 4.3), for aggregate Damages in excess of fifteen percent (15%) of the Unadjusted Purchase Price, and (ii) under this Article 11 for aggregate Damages in excess of one hundred percent (100%) of the Unadjusted Purchase Price; provided, however, that the limitations set forth in this Section 11.6(e) shall not apply to any Damages (or any related indemnity obligations) to the extent arising out of or based upon Fraud. (f) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates). (c) Any Indemnified Person ; provided, however, that becomes aware of a loss for which it seeks indemnification no Party shall be required to use commercially reasonable efforts seek recovery under any policy of insurance as a condition to mitigate indemnification hereunder. (g) Seller shall be subrogated to the lossrights of any Indemnified Person that is a member of the Purchaser Group and Purchaser shall be subrogated to the rights of any Indemnified Person that is a member of the Seller Group, including taking in each case, against any actions reasonably requested insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by the Indemnifying Party, and an Indemnifying such Party shall not be liable for any loss pursuant to Article 11 to the extent that it a Party pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group or Seller Group, as applicable, who is attributable indemnified pursuant to Article 11 shall assign or otherwise cooperate with Seller or Purchaser, as applicable, in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group or Purchaser Group, as applicable, has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller or Seller Group Indemnified Person shall remit to Purchaser, as applicable, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group or Seller Group, as applicable, from a third Person and which relates to Damages for which (but only to the Indemnified Party’s failure to use commercially extent) such member of the Seller Group or Purchaser Group, as applicable, has been previously compensated hereunder (minus the reasonable efforts to mitigateout-of-pocket costs incurred in obtaining such recovery). (dh) In no event Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the same state of facts giving rise to such liability constituting (i) a breach of more than one representation, warranty, covenant, or agreement herein, (ii) a Purchase Price adjustment made hereunder, or (iii) covered by an obligation of indemnity hereunder. Neither Seller nor Purchaser shall have any Indemnified Person be entitled to duplicate compensation obligation or liability under this Agreement or in connection with or with respect to the same Damagetransactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been affirmatively and expressly waived in writing by the other Party. (i) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity provided hereunder. Notwithstanding the foregoing, neither Purchaser nor Seller shall be entitled to indemnification under Section 6.5, Section 9.4 or this Article 11 for, and “Damages” shall not include, (i) loss of profits, to the extent consequential, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties or to the extent such damages constitute direct damages under Texas law), and (ii) any increase in liability, loss, cost, expense, claim, award or judgment under more than one provision to the extent such increase is caused by the actions or omissions of this Agreement and any Indemnified Person after the various documents delivered in connection with the ClosingClosing Date.

Limitation on Actions. (a) The representations and warranties Notwithstanding anything to the contrary contained herein and given elsewhere in this Agreement, Sellers shall not be required to indemnify the Buyer under this Article X for (i) aggregate Losses (including Losses of the type described in clause (ii) of this Section 10.3(a)) in excess of the Indemnity Holdback Escrow Amount (as may be reduced in accordance with Section 10.4(b), the “Primary Indemnity Cap”) or (ii) aggregate Losses that are attributable to costs in respect of advisors for which Bxxxx is indemnified hereunder in excess of $1,175,000.00 (together with the Primary Indemnity Cap, the “Indemnity Caps”). For the avoidance of doubt, but subject to the Indemnity Caps, any Indemnity Holdback Cash in the agreementsIndemnity Holdback Escrow Account shall be available as recourse of the Buyer Parties for any of the matters set forth on Schedule 10.1 regardless of the Indemnity Holdback Group to which such matter relates, instruments, documents and certificates delivered at the Closing pursuant to this Agreement shall survive the Closing for two (2) years, except “Estimated Potential Losses” specified on Schedule 10.1 for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement matters described therein do not represent caps or limitations on indemnifiable Losses with respect to such a representation, warranty, covenant or agreement prior to its expiration datethereto. (b) The amount of any Damages Losses for which an Indemnified Person Buyer is entitled to indemnity under this Article 9 X and the Indemnity Caps shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person Buyer or its Affiliates with respect to such Damages Losses (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person Buyer or its Affiliates)) and such net insurance proceeds shall be deemed paid out under the Indemnity Holdback Group to which the proceeds relate. (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person Buyer be entitled to duplicate compensation with respect to the same DamageLoss, liability, loss, cost, expense, claim, award award, or judgment under more than one provision of this Agreement and the various documents delivered Transaction Documents and in connection with no event shall the Closingterm “Losses” as used in this Article X include any indirect, special, punitive or consequential damages (including loss of profits); provided, however, that the term “Losses” as used in this Article X shall include Taxes.

Limitation on Actions. (a) The representations and warranties Notwithstanding anything to the contrary contained herein and given elsewhere in this Agreement, Sellers shall not be required to indemnify the Buyer under this Article X for (i) aggregate Losses (including Losses of the type described in clause (ii) of this Section 10.3(a)) in excess of the Indemnity Holdback Escrow Amount (as may be reduced in accordance with Section 10.4(b), the “Primary Indemnity Cap”) or (ii) aggregate Losses that are attributable to costs in respect of advisors for which Xxxxx is indemnified hereunder in excess of $1,175,000.00 (together with the Primary Indemnity Cap, the “Indemnity Caps”). For the avoidance of doubt, but subject to the Indemnity Caps, any Indemnity Holdback Cash in the agreementsIndemnity Holdback Escrow Account shall be available as recourse of the Buyer Parties for any of the matters set forth on Schedule 10.1 regardless of the Indemnity Holdback Group to which such matter relates, instruments, documents and certificates delivered at the Closing pursuant to this Agreement shall survive the Closing for two (2) years, except “Estimated Potential Losses” specified on Schedule 10.1 for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement matters described therein do not represent caps or limitations on indemnifiable Losses with respect to such a representation, warranty, covenant or agreement prior to its expiration datethereto. (b) The amount of any Damages Losses for which an Indemnified Person Buyer is entitled to indemnity under this Article 9 X and the Indemnity Caps shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person Buyer or its Affiliates with respect to such Damages Losses (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person Buyer or its Affiliates)) and such net insurance proceeds shall be deemed paid out under the Indemnity Holdback Group to which the proceeds relate. (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person Buyer be entitled to duplicate compensation with respect to the same DamageLoss, liability, loss, cost, expense, claim, award award, or judgment under more than one provision of this Agreement and the various documents delivered Transaction Documents and in connection with no event shall the Closingterm “Losses” as used in this Article X include any indirect, special, punitive or consequential damages (including loss of profits); provided, however, that the term “Losses” as used in this Article X shall include Taxes.

Limitation on Actions. (a) The Each of the representations and warranties and covenants contained herein in this Agreement and given in any certificate delivered in connection with this Agreement and the right of an Indemnitee to assert any claim for indemnification pursuant to this ARTICLE VII shall survive the Closing until the first anniversary of the Closing Date (except for the Fundamental Representations, which shall survive for a period of six (6) years after the Closing Date). (b) Notwithstanding Section 7.4(a), a Party’s rights to indemnification shall not terminate with respect to any claim, whether or not fixed as to liability or liquidated in amount, with respect to which the Indemnified Person has in good faith delivered written notice to the Indemnifying Person, prior to the expiration of the applicable survival period, setting forth the basis for indemnification and the facts upon which the claim for indemnification is based and, if known to the Indemnitee, a reasonable estimate of the Damages relating thereto, without requiring such Party to commence litigation or any other proceeding. (c) The Company Escrow Parties shall not have any Liability for any indemnification under Section 7.1 unless and until the aggregate Damages for which Claim Notices are delivered by Purchaser in accordance herewith exceed $189,250, in which case the Company Escrow Parties shall have Liability for all Damages for which Claim Notices are delivered by Purchaser in accordance herewith from the first dollar. The foregoing limitations shall not apply in the agreementscase of intentional fraud. (d) Except with respect to claims relating to a breach of the Fundamental Representations, instrumentsor in the event of intentional fraud, documents for which the aggregate Damages payable by the Company Escrow Parties will be limited to the amount of the Merger Consideration (less any amount previously paid or to be paid by the Company Escrow Parties pursuant to this ARTICLE VII) and certificates delivered which may be drawn from the Indemnity Escrow Amount or recovered directly from the Company Escrow Parties at Parent’s election, (i) the Closing aggregate Damages payable by the Company Escrow Parties pursuant to Section 7.1 shall be drawn from the Indemnity Escrow Amount, and (ii) the amount of such Damages for which the Company Stockholders are liable under Section 7.1 shall at no time exceed an amount equal to the Escrow Amount at such time. (e) The aggregate Damages payable by Parent pursuant to this Agreement shall survive the Closing for two (2) years, except for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant limited to this Agreement with respect to such a representation, warranty, covenant or agreement prior to its expiration date. (b) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 shall be reduced by the amount of insurance proceeds realized the Merger Consideration (less any amount previously payable by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its AffiliatesParent). (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person be entitled to duplicate compensation with respect to the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision of this Agreement and the various documents delivered in connection with the Closing.

Limitation on Actions. (a) The representations and warranties contained herein of the Parties in Articles 3 and given in the agreements, instruments, documents and certificates delivered at 4 shall survive the Closing pursuant to for a period of one year, except for (i) the Selected Sellers Representations and Warranties which shall survive without limitation, (ii) the Seller representations and warranties in Section 3.8 (Taxes) which shall survive for the applicable statute of limitations, and (iii) the Seller representations and warranties in Section 3.10 (Environmental Laws) which shall survive for a period of 18 months. The remainder of this Agreement shall survive the Closing for two (2) yearswithout time limit except as may otherwise be expressly provided herein. Representations, except for the representations warranties, covenants, and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant covenant, or agreement prior to its expiration date. (b) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 10 shall be reduced by the amount of insurance proceeds (net of collection costs and expenses) realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates)Damages. (c) Any No Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required entitled to use commercially reasonable efforts to mitigate duplicate compensation for the losssame Damages under this Agreement, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that even if it is attributable entitled to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) indemnification under more than one Section of this Article 10. In no event shall any Indemnified Person be entitled to duplicate compensation indemnification for amounts for which, and to the extent that, an adjustment was made pursuant to Section 2.2 or Section 2.3 or a payment was made pursuant to Section 5.7. (d) Seller shall not be required to pay or be liable for any Damages with respect to an individual claim (which individual claim shall include claims arising out of the same or substantially related circumstances) under Section 10.2(a) unless and until the Damages for such claim shall exceed $150,000 (the “Small Claims Deductible”). (e) Except with respect to the same DamageSelected Seller Representations and Warranties and for claims under Section 10.1(b)(iii), liabilityno Indemnified Person shall have any right to indemnification hereunder except to the extent the aggregate amount of Damages (excluding Damages less than the Small Claims Deductible with respect to Seller) incurred by an Indemnified Person and subject to indemnification under this Article 10 exceeds FIVE HUNDRED THOUSAND United States dollars (US$ 500,000), lossafter which all such amounts exceeding the initial US$ 500,000 shall be subject to indemnification hereunder (the “Deductible”). (f) Except with respect to the Selected Seller Representations and Warranties and for claims under Section 10.1(b)(iii), costSeller shall not be required to indemnify Purchaser under Section 10.1(b) for aggregate Damages in excess of TEN MILLION United States dollars (US$ 10,000,000). Except with respect to claims under Section 10.1(b)(iv) and (v), expense, claim, award or judgment under more than one Purchaser shall first seek to recover Damages from funds deposited pursuant to the Escrow Agreement prior to pursuing any other claim for indemnification hereunder. (g) Notwithstanding anything to the contrary in any other provision of this Agreement Agreement, the Seller’s indemnity obligations under Section 10.l(b)(iv), (v) and (vi) shall survive indefinitely and shall not be limited by the various documents delivered cap on Damages set forth in connection with the ClosingSection 10.3(±) above.

Limitation on Actions. (a) The covenants and agreements of Seller in Section 12 shall survive the Closing for a period of three (3) months after Closing. The representations and warranties contained herein of the Seller in Section 6 and given in the agreementsall other representations, instruments, documents warranties and certificates delivered at covenants of Seller shall terminate as of the Closing pursuant to Date. (b) The remainder of this Agreement shall survive the Closing for two (2) yearswithout time limit except as may otherwise be expressly provided herein. Representations, except for the representations warranties, covenants and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant or agreement prior to its expiration date. (bc) The indemnities in Section 22(d) shall terminate as of the termination date of each respective representation, warranty, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Section 22(c) shall continue without time limit. (d) Seller shall not have any liability for any indemnification under Section 22 until and unless the aggregate amount of the liability for all Damages for which Claim Notices are delivered by Buyer exceeds ten percent (10%) of the unadjusted Sale Price, and then only to the extent the amount of such Damages exceeds ten percent (10%) of the unadjusted Sale Price. (e) Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall not be required to indemnify Buyer under Section 22 for aggregate Damages in excess of twenty five percent (25%) of the unadjusted Sale Price. (f) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 Section 22 shall be reduced by the amount of any insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates). (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d) In no event shall any Indemnified Person be entitled to duplicate compensation with respect to the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision of this Agreement and the various documents delivered in connection with the Closing.

Limitation on Actions. (a) The representations and warranties contained herein and given in the agreements, instruments, documents and certificates delivered at the Closing pursuant to this Agreement shall survive the Closing for two (2) years, except for the representations and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement Parties’ indemnity obligations hereunder with respect to such a representation, warranty, covenant covenant, or agreement prior shall continue as to its expiration datesuch representation, warranty, covenant, or agreement only until the applicable Termination Date , except in each case as to matters for which a Claim Notice has been delivered to the Indemnifying Party on or before the Termination Date. The indemnity obligations with respect to the Specified Liabilities shall survive Closing until the one-year anniversary of the Closing Date. (b) The amount of Notwithstanding anything to the contrary contained elsewhere in this Agreement: (1) Seller shall not have any Damages for which an Indemnified Person is entitled to indemnity liability under this Article 9 XI for any individual Loss that does not exceed $250,000; (2) Subject to Section 11.4(b)(1), Seller shall not have any liability under this Article XI unless and until the aggregate amount of the liability for all Losses for which Claim Notices are timely delivered by Buyer and for which Buyer is eligible for indemnity under Section 11.4(b)(1) exceeds a deductible amount equal to 3% of the Base Purchase Price, after which point Buyer (or Buyer Indemnitees) shall be reduced by the amount entitled to claim Losses only in excess of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates).that amount; (c) Any Indemnified Person that becomes aware of a loss for which it seeks indemnification shall be required to use commercially reasonable efforts to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (d3) In no event shall any Indemnified Person Sellers aggregate liability to Buyer and Buyer Indemnitees under Section 11.2(a)(1) exceed the value of the Escrowed Share Consideration, except in the case of breaches of the Seller Fundamental Representations or in the case of actual Fraud; and (4) In no event shall Sellers’ aggregate liability arising out of the indemnification obligations under Article XI exceed the Base Purchase Price, and Buyer waives and releases and shall have no recourse against Seller pursuant to Article XI or under or by reason of this Agreement or the transactions contemplated hereunder in excess of the Base Purchase Price. (c) Notwithstanding anything else to the contrary contained elsewhere in this Agreement, Seller’s aggregate liability to Buyer for a breach of the Special Warranty with respect to any Property shall not exceed the Allocated Value of such Property. (d) Notwithstanding anything to the contrary in this Agreement, solely for purposes of determining the amount of Losses that are the subject matter of an indemnification or reimbursement claim hereunder with respect to such representations and warranties (and not for purposes of determining whether there is any breach), such representations and warranties shall be read without regard and without giving effect to the terms “material” or “Material Adverse Effect” or similar terms, phrases or qualifiers contained in such representation or warranty. (e) TO THE FULLEST EXTENT PERMITTED BY LAW, A PARTY SHALL BE ENTITLED TO THE LIMITATIONS ON LIABILITY HEREUNDER, IN ACCORDANCE WITH THE TERMS HEREOF, REGARDLESS OF WHETHER THE APPLICABLE LOSS IS THE RESULT OF (IN WHOLE OR IN PART) THE GROSS, SOLE, ACTIVE, PASSIVE, CONCURRENT, OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY, OTHER FAULT OR THE VIOLATION OF LAW, IN EACH CASE, OF OR BY SUCH PARTY. No Buyer Indemnitees or Seller Indemnitees shall be entitled to duplicate compensation recover any Losses under any provision of this Article XI to the extent Buyer or Seller, respectively, are compensated for such Losses under Article II or such Buyer Indemnitee or Seller Indemnitee, respectively, has received payment for such Losses under any provision of this Agreement. (f) In no event may Buyer or any of its Affiliates initiate a Proceeding alleging or asserting that any Seller or any other Person is liable for Fraud in connection with this Agreement or any of the acts or transactions contemplated hereunder unless such alleged Fraud (i) specifically relates to a matter with respect to which Seller remains responsible for Fraud by the same Damage, liability, loss, cost, expense, claim, award or judgment under more than one provision express terms of this Agreement and agreement, or (ii) does not relate to any representation, warranty, statement, or information made or communicated, orally or in writing, with respect to which Xxxxx has disclaimed reliance. Further, no Seller shall have any liability for Fraud of another Seller or Person unless such Xxxxxx committed or participated in the various documents delivered in connection with the ClosingFraud of such other Seller or Person.

Limitation on Actions. (a) The representations and warranties contained herein of Seller in Article 4, the corresponding representations, warranties, and affirmations given in the agreements, instruments, documents and certificates certificate delivered by Seller at the Closing pursuant to Section 8.2(e), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, not survive after the Closing Date. The representations and warranties of Purchaser in Article 5, and the corresponding representations, warranties, and affirmations given in the certificate delivered by Purchaser at Closing pursuant to Section 8.3(f), shall, in each case, survive the Closing indefinitely. The covenants and agreements of the Parties to be performed at any time from and after Closing shall survive Closing until fully performed. The remainder of this Agreement shall survive the Closing for two (2) yearswithout time limit except as may otherwise be expressly provided herein. Representations, except for the representations warranties, covenants, and warranties contained in Section 4.5 (Ownership) and Section 5.5 (Ownership), which shall survive indefinitely. Representations and warranties agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted in writing pursuant to this Agreement with respect to such a representation, warranty, covenant covenant, or agreement prior to its expiration datedate (and, for purposes of clarity, there shall be no termination of any indemnification obligations underlying any such claim in such circumstance). (b) The indemnities in Section 11.3(a) shall continue without time limit. (c) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 9 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates). (c) Any Indemnified Person ; provided, however, that becomes aware of a loss for which it seeks indemnification no Party shall be required to use commercially reasonable efforts seek recovery under any policy of insurance as a condition to mitigate the loss, including taking any actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to the extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigateindemnification hereunder. (d) In no event Purchaser shall be subrogated to the rights of any Indemnified Person be entitled to duplicate compensation that is a member of the Seller Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Purchaser pursuant to Article 11 to the extent that Purchaser pays any such Indemnified Person with respect to such Damages. Any member of the Seller Group who is indemnified pursuant to Article 11 shall assign or otherwise cooperate with Purchaser in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Seller Group has been paid. Any such Seller Group Indemnified Person shall remit to Purchaser within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Seller Group from a Third Party and which relates to Damages for which (but only to the extent) such member of the Seller Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery). (e) Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the same Damagestate of facts giving rise to such liability constituting (i) a breach of more than one representation, warranty, covenant, or agreement herein, (ii) a Purchase Price adjustment made hereunder, or (iii) covered by an obligation of indemnity hereunder. (f) As used in this Agreement, the term “Damages” means the amount of any actual liability, loss, cost, expense, Tax, claim, award award, or judgment under more than one provision incurred or suffered by any Person, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of this Agreement attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters in question, and the various documents delivered in connection with costs of investigation and/or monitoring of such matters, and the Closingcosts of enforcement of the indemnity provided hereunder.