Common use of Limitation on Damages; Survival of Representations Clause in Contracts

Limitation on Damages; Survival of Representations. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER BE LIABLE TO THE SELLER INDEMNITEES FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, REMOTE, OR SPECULATIVE DAMAGES OR LOST PROFITS; PROVIDED, HOWEVER, THAT IF ANY SELLER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND BUYER IS OBLIGATED TO INDEMNIFY SUCH SELLER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, THE BUYER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH SELLER INDEMNITEE FOR, SUCH DAMAGES. The representations and warranties of Buyer set forth in Article 5 shall survive the Closing for a period of one year and such representations and warranties of Buyer shall terminate at 5:00 p.m., local time in Houston, Texas, on the one year anniversary of the Closing Date; provided, however, that any such representation or warranty that is the subject of a written notice of claim specifying in reasonable detail the specific nature of the Losses and the estimated amount of such Losses ("Claim Notice") delivered in good faith shall survive with respect only to the specific matter described in such claim notice until the earlier to occur of (i) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (b) Notwithstanding anything to the contrary in this Agreement, the liability of Seller under this Agreement and any documents delivered in connection herewith or contemplated hereby shall be limited as follows: (i) IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER INDEMNITEES FOR ANY EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES; PROVIDED, HOWEVER, THAT IF ANY BUYER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND SELLER IS OBLIGATED TO INDEMNIFY SUCH BUYER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, SUCH SELLER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH BUYER INDEMNITEE FOR, SUCH DAMAGES. (ii) The representations and warranties of Seller set forth in Article 4 shall survive the Closing for a period of three years and such representations and warranties shall terminate at 5:00 p.m., local time in Houston, Texas, on the third anniversary of the Closing Date; provided, however, that any such representation and warranty that is the subject of a Claim Notice delivered in good faith shall survive with respect only to the specific matter described in such Claim Notice until the earlier to occur of (A) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (B) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, (A) for any individual Losses (other than Losses as to which a claim has been made pursuant to Article 10) not in excess of $3,000 or (B) for any Losses (other than Losses as to which a claim has been made pursuant to Article 10) until the Buyer Indemnitees have suffered Losses (other than Losses excluded pursuant to clause (A)) in the aggregate in excess of a deductible in an amount equal to $7,500, after which point Seller will be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of such deductible (and only to the extent of any such excess). (iv) Notwithstanding anything to the contrary herein, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, for any Losses under this Agreement in excess of an amount equal to 10% of Purchase Price; provided, however, that for purposes of this Section 12.5(b)(iv) the term Losses shall include (A) any amount agreed upon by Buyer and Seller pursuant to Article 9 as the value of any Title Defect and (B) any amounts paid by Seller for environmental liabilities or corrective actions pursuant to Article 10.

Limitation on Damages; Survival of Representations. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER BE LIABLE TO THE SELLER SELLERS' INDEMNITEES FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, REMOTE, REMOTE OR SPECULATIVE DAMAGES OR LOST PROFITSDAMAGES; PROVIDED, HOWEVER, THAT IF ANY SELLER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND BUYER IS OBLIGATED TO INDEMNIFY SUCH SELLER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, THE BUYER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH SELLER INDEMNITEE FOR, FOR SUCH DAMAGES. The representations and warranties of Buyer set forth in Article ARTICLE 5 shall survive the Closing for a period of one year three (3) years and such representations and warranties of Buyer shall terminate at 5:00 p.m., local time in Houston, Texas, on the one year third anniversary of the Closing Date; provided, however, that any such representation or warranty that is the subject of a written notice of claim specifying in reasonable detail the specific nature of the Losses and the estimated amount of such Losses ("Claim Notice") delivered in good faith shall survive with respect only to the specific matter described in such claim notice until the earlier to occur of (i) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (b) Notwithstanding anything to the contrary in this Agreement, the liability of Seller under this Agreement and any documents delivered in connection herewith or contemplated hereby shall be limited as follows: (i) IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER INDEMNITEES FOR ANY EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES; PROVIDED, HOWEVER, THAT IF ANY BUYER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND SELLER IS OBLIGATED TO INDEMNIFY SUCH BUYER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, SUCH SELLER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH BUYER INDEMNITEE FOR, SUCH DAMAGES. (ii) The representations and warranties of Seller set forth in Article 4 shall survive the Closing for a period of three years and such representations and warranties shall terminate at 5:00 p.m., local time in Houston, Texas, on the third anniversary of the Closing Date; provided, however, that any such representation and warranty that is the subject of a Claim Notice delivered in good faith shall survive with respect only to the specific matter described in such Claim Notice until the earlier to occur of (A) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (B) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, (A) for any individual Losses (other than Losses as to which a claim has been made pursuant to Article 10) not in excess of $3,000 or (B) for any Losses (other than Losses as to which a claim has been made pursuant to Article 10) until the Buyer Indemnitees have suffered Losses (other than Losses excluded pursuant to clause (A)) in the aggregate in excess of a deductible in an amount equal to $7,500, after which point Seller will be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of such deductible (and only to the extent of any such excess). (iv) Notwithstanding anything to the contrary herein, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, for any Losses under this Agreement in excess of an amount equal to 10% of Purchase Price; provided, however, that for purposes of this Section 12.5(b)(iv) the term Losses shall include (A) any amount agreed upon by Buyer and Seller pursuant to Article 9 as the value of any Title Defect and (B) any amounts paid by Seller for environmental liabilities or corrective actions pursuant to Article 10.

Limitation on Damages; Survival of Representations. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER BE LIABLE TO THE SELLER SELLER'S INDEMNITEES FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, REMOTE, REMOTE OR SPECULATIVE DAMAGES OR LOST PROFITSDAMAGES; PROVIDED, HOWEVER, THAT IF ANY SELLER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND BUYER IS OBLIGATED TO INDEMNIFY SUCH SELLER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, THE BUYER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH SELLER INDEMNITEE FOR, FOR SUCH DAMAGES. The representations and warranties of Buyer set forth in Article ARTICLE 5 shall survive the Closing for a period of one year three (3) years and such representations and warranties of Buyer shall terminate at 5:00 p.m., local time in Houston, Texas, on the one year third anniversary of the Closing Date; provided, however, that any such representation or warranty that is the subject of a written notice of claim specifying in reasonable detail the specific nature of the Losses and the estimated amount of such Losses ("Claim Notice") delivered in good faith shall survive with respect only to the specific matter described in such claim notice until the earlier to occur of (i) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution.shall (b) Notwithstanding anything to the contrary in this Agreement, the liability of Seller under this Agreement and any documents delivered in connection herewith or contemplated hereby shall be limited as follows: (i) IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER INDEMNITEES FOR ANY EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES; PROVIDED, HOWEVER, THAT IF ANY BUYER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND EITHER SELLER IS OBLIGATED TO INDEMNIFY SUCH BUYER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, SUCH SELLER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH BUYER INDEMNITEE FOR, SUCH DAMAGES. (ii) The representations and warranties of Seller set forth in Article ARTICLE 4 (except for Section 4.9, which shall terminate at Closing) shall survive the Closing for a period of three (3) years and such representations and warranties shall terminate at 5:00 p.m., local time in Houston, Texas, on the third anniversary of the Closing Date; provided, however, that any such representation and warranty that is the subject of a Claim Notice delivered in good faith shall survive with respect only to the specific matter described in such Claim Notice until the earlier to occur of (A) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (B) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, (A) for any aggregated individual Losses (other than Losses as to which a claim has been made pursuant to Article 10) not in excess of $3,000 or (B) for any Losses (other than Losses as to which a claim has been made pursuant to Article ARTICLE 10) until the Buyer Indemnitees have suffered Losses (other than Losses excluded pursuant to clause (A)) in A))in the aggregate in excess of a deductible in an amount equal to $7,500, after which point Seller will be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of such deductible (and only to the extent of any such excess).Ten Thousand (iv) Notwithstanding anything to the contrary herein, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, for any Losses under this Agreement in excess of an amount equal to 10% of Purchase Price; One Million Five Hundred Thousand Dollars ($1,500,000.00) provided, however, that for purposes of this Section 12.5(b)(iv12.4(b)(iv) the term Losses shall include (A) any amount agreed upon by Buyer and Seller pursuant to Article 9 as the value of any Title Defect and (B) any amounts paid by Seller for environmental liabilities or corrective actions pursuant to Article 10. (v) No amount shall be recovered from Seller for the breach or inaccuracy of any of Seller's representations, warranties, covenants or agreements, or for any other matter, to the extent that Buyer had actual knowledge of such breach, inaccuracy or other matter at or prior to the Closing, nor shall Buyer be entitled to post-Closing rescission with respect to any such matter. (vi) Seller shall have no liability for Losses pursuant to this Article unless a Claim Notice has been delivered to Seller as required by Section 12.5 within three (3) years after the Effective Time.

Limitation on Damages; Survival of Representations. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER BE LIABLE TO THE SELLER INDEMNITEES FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, REMOTE, REMOTE OR SPECULATIVE DAMAGES OR LOST PROFITSDAMAGES; PROVIDED, HOWEVER, THAT IF ANY SELLER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND BUYER IS OBLIGATED TO INDEMNIFY SUCH SELLER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, THE BUYER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH SELLER INDEMNITEE FOR, SUCH DAMAGES. The representations and warranties of Buyer set forth in Article 5 shall survive the Closing for a period of one year three (3) years and such representations and warranties of Buyer shall terminate at 5:00 p.m., local time in Houston, Texas, on the one third year anniversary of the Closing Date; provided, however, that any such representation or warranty that is the subject of a written notice of claim specifying in reasonable detail the specific nature of the Losses and the estimated amount of such Losses ("Claim Notice") delivered in good faith shall survive with respect only to the specific matter described in such claim notice until the earlier to occur of (i) the date on which a final non-appealable nonappealable resolution of the matter described in such Claim Notice has been reached or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (b) Notwithstanding anything to the contrary in this Agreement, the liability of Seller under this Agreement and any documents delivered in connection herewith or contemplated hereby shall be limited as follows: (i) IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER INDEMNITEES FOR ANY EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES; PROVIDED, HOWEVER, THAT IF ANY BUYER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND SELLER IS OBLIGATED TO INDEMNIFY SUCH BUYER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, SUCH SELLER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH BUYER INDEMNITEE FOR, SUCH DAMAGES. (ii) The representations and warranties of Seller set forth in Article 4 shall survive the Closing for a period of three years and such representations and warranties shall terminate at 5:00 p.m., local time in Houston, Texas, on the third anniversary of the Closing Date; provided, however, that any such representation and warranty that is the subject of a Claim Notice delivered in good faith shall survive with respect only to the specific matter described in such Claim Notice until the earlier to occur of (A) the date on which a final non-appealable resolution of the matter described in such Claim Notice has been reached or (B) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, (A) for any individual Losses (other than Losses as to which a claim has been made pursuant to Article 10) not in excess of $3,000 or (B) for any Losses (other than Losses as to which a claim has been made pursuant to Article 10) until the Buyer Indemnitees have suffered Losses (other than Losses excluded pursuant to clause (A)) in the aggregate in excess of a deductible in an amount equal to $7,500, after which point Seller will be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of such deductible (and only to the extent of any such excess). (iv) Notwithstanding anything to the contrary herein, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, for any Losses under this Agreement in excess of an amount equal to 10% of Purchase Price; provided, however, that for purposes of this Section 12.5(b)(iv) the term Losses shall include (A) any amount agreed upon by Buyer and Seller pursuant to Article 9 as the value of any Title Defect and (B) any amounts paid by Seller for environmental liabilities or corrective actions pursuant to Article 10.

Limitation on Damages; Survival of Representations. (a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER BE LIABLE TO THE SELLER INDEMNITEES FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, REMOTE, REMOTE OR SPECULATIVE DAMAGES OR LOST PROFITSDAMAGES; PROVIDED, HOWEVER, THAT IF ANY SELLER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND BUYER IS OBLIGATED TO INDEMNIFY SUCH SELLER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, THE BUYER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH SELLER INDEMNITEE FOR, SUCH DAMAGES. The representations and warranties of Buyer set forth in Article 5 shall survive the Closing for a period of one year three years and such representations and warranties of Buyer shall terminate at 5:00 p.m., local time in Houston, Texas, on the one third year anniversary of the Closing Date; provided, however, that any such representation or warranty that is the subject of a written notice of claim specifying in reasonable detail the specific nature of the Losses and the estimated amount of such Losses ("Claim Notice") delivered in good faith shall survive with respect only to the specific matter described in such claim notice until the earlier to occur of (i) the date on which a final non-appealable nonappealable resolution of the matter described in such Claim Notice has been reached or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (b) Notwithstanding anything to the contrary in this Agreement, the liability of Seller under this Agreement and any documents delivered in connection herewith or contemplated hereby shall be limited as follows: (i) IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER INDEMNITEES FOR ANY EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES; PROVIDED, HOWEVER, THAT IF ANY BUYER INDEMNITEE IS HELD LIABLE TO A THIRD PARTY FOR ANY SUCH DAMAGES AND EITHER SELLER IS OBLIGATED TO INDEMNIFY SUCH BUYER INDEMNITEE FOR THE MATTER THAT GAVE RISE TO SUCH DAMAGES, SUCH SELLER SHALL BE LIABLE FOR, AND OBLIGATED TO REIMBURSE SUCH BUYER INDEMNITEE FOR, SUCH DAMAGES. (ii) The representations and warranties of Seller set forth in Article 4 (except for Section 4.13 which shall survive forever and Section 4.18 which shall terminate at Closing) shall survive the Closing for a period of three years and such representations and warranties shall terminate at 5:00 p.m., local time in Houston, Texas, on the third year anniversary of the Closing Date; provided, however, that any such representation and warranty that is the subject of a Claim Notice delivered in good faith shall survive with respect only to the specific matter described in such Claim Notice until the earlier to occur of (A) the date on which a final non-appealable nonappealable resolution of the matter described in such Claim Notice has been reached or (B) the date on which the matter described in such Claim Notice has otherwise reached final resolution. (iii) Notwithstanding anything to the contrary in this Agreement, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, (A) for any individual Losses (other than Losses as to which a claim has been made pursuant to Article 10) not in excess of $3,000 10,000 or (B) for any Losses (other than Losses as to which a claim has been made pursuant to Article 10) until the Buyer Indemnitees have suffered Losses (other than Losses excluded pursuant to clause (A)) in the aggregate in excess of a deductible in an amount equal to $7,500100,000, after which point Seller will be obligated only to indemnify the Buyer Indemnitees from and against further Losses in excess of such deductible (and only to the extent of any such excess). (iv) Notwithstanding anything to the contrary herein, in no event shall Seller indemnify the Buyer Indemnitees, or be otherwise liable in any way whatsoever to the Buyer Indemnitees, for any Losses under Sections 11.2(a) or 11.2(b) of this Agreement in excess of an amount equal to 10% $2,500,000, except such limitation shall not apply to Losses related to a breach of Purchase Price; providedSection 4.13 hereof. (v) No amount shall be recovered from Seller for the breach or inaccuracy of any of Seller's representations, howeverwarranties, covenants or agreements, or for any other matter, to the extent that Buyer had actual knowledge of such breach, inaccuracy or other matter at or prior to the Closing, nor shall Buyer be entitled to post-Closing rescission with respect to any such matter. (vi) Seller shall have no liability for purposes of Losses pursuant to this Article unless a Claim Notice has been delivered to Seller as required by Section 12.5(b)(iv) the term Losses shall include 11.4 as follows: (A) within three years after the Effective Time with respect to any amount agreed upon by Buyer Losses under Sections 11.2(a) (except for Losses under Section 11.2(a) relating to Section 4.13 which shall survive forever) and Seller pursuant to Article 9 as the value of any Title Defect and 11.2(b); (B) within the period of the applicable statute of limitations with respect to any amounts paid by Seller for environmental liabilities or corrective actions pursuant to Article 10Losses under Sections 11.2(c), 11.2(d) and 11.2(e).