Common use of Limitation on Losses; Exclusive Remedy Clause in Contracts

Limitation on Losses; Exclusive Remedy. (a) Losses payable by an Indemnifying Party under this Article VI shall not include Venture Losses. (b) Except with regard to compensation for claims paid to third parties, Losses payable by an Indemnifying Party under this Article VI shall not include punitive damages. (c) The amount of indemnifiable Losses incurred by an Indemnified Party under this Article VI, prior to application of applicable indemnification percentages, caps and thresholds, shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the Loss for which indemnification may be sought, net of retrospective premium adjustments and similar charges, and (b) reduced by any amounts actually recovered from any third parties, by way of indemnification or otherwise, with respect to the Loss for which indemnification may be sought, in each case net of expenses incurred by the Indemnified Party in collecting such proceeds or amounts. In the event an insurance or other claim by an Indemnified Party against a third party is pending at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when any insurance or third-party proceeds are received by the Indemnified Party, the indemnifiable Losses shall be adjusted to reflect the receipt of such proceeds and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. The Company and Member shall each use reasonable commercial efforts to obtain waivers of the insurer’s subrogation rights in each of its policies of insurance insuring matters which could constitute indemnifiable Losses under this Article VI. (d) The liability of an Indemnifying Party under this Article VI above shall be reduced by the net amount of any Tax benefits actually realized by the Indemnified Party or its members to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense. In the event Tax benefits have not been actually realized (through a refund of or deduction or credit against Taxes payable), or the net Tax benefit cannot finally be determined, at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when the Tax benefits are actually realized and the net amount thereof finally determined, the indemnifiable Losses shall be adjusted to reflect the net Tax benefits realized and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. (e) Except as specifically set forth in this Article VI, the Company waives any rights and claims the Company may have against Member, whether at law or equity, relating to the Contributed Assets or the transactions contemplated hereby, other than claims for fraud. The rights and claims waived by the Company include claims for contribution or other rights of recovery arising out of or relating to any Environmental Law (whether now or hereinafter in effect), claims for breach of contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty. After the date hereof, Sections 6.2 and 6.3 will, in the absence of fraud, provide the exclusive remedy of the Company or any other member of the Company against Member, or Member against the Company, for any misrepresentation, breach of warranty, covenant or other agreement (other than those contained in Section 2.4(c) and 3.2) or other claims arising out of this Agreement or the transactions contemplated hereby.

Limitation on Losses; Exclusive Remedy. (a) Losses payable by an Indemnifying Party under this Article VI shall not include Venture Losses. (b) Except with regard to compensation for claims paid to third parties, Losses payable by an Indemnifying Party under this Article VI shall not include punitive damages. (c) The amount of indemnifiable Losses incurred by an Indemnified Party under this Article VI, prior to application of applicable indemnification percentages, caps and thresholds, shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the Loss for which indemnification may be sought, net of retrospective premium adjustments and similar charges, and (b) reduced by any amounts actually recovered from any third parties, by way of indemnification or otherwise, with respect to the Loss for which indemnification may be sought, in each case net of expenses incurred by the Indemnified Party in collecting such proceeds or amounts. In the event an insurance or other claim by an Indemnified Party against a third party is pending at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when any insurance or third-party proceeds are received by the Indemnified Party, the indemnifiable Losses shall be adjusted to reflect the receipt of such proceeds and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. The Company and Member shall each use reasonable commercial efforts to obtain waivers of the insurer’s subrogation rights in each of its policies of insurance insuring matters which could constitute indemnifiable Losses under this Article VI. (d) The liability of an Indemnifying Party under this Article VI above shall be reduced by the net amount of any Tax benefits actually realized by the Indemnified Party or its members to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense. In the event Tax benefits have not been actually realized (through a refund of or deduction or credit against Taxes payable), or the net Tax benefit cannot finally be determined, at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when the Tax benefits are actually realized and the net amount thereof finally determined, the indemnifiable Losses shall be adjusted to reflect the net Tax benefits realized and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. (e) Except as specifically set forth in this Article VI, the Company waives any rights and claims the Company may have against Member, whether at law or equity, relating to the Contributed Assets or the transactions contemplated hereby, other than claims for fraud. The rights and claims waived by the Company include claims for contribution or other rights of recovery arising out of or relating to any Environmental Law (whether now or hereinafter in effect), claims for breach of contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty. After the date hereof, Sections 6.2 and 6.3 will, in the absence of fraud, provide the exclusive remedy of the Company or any other member of the Company against Member, or Member against the Company, for any misrepresentation, breach of warranty, covenant or other agreement (other than those contained in Section 2.4(cSections 2.5(c) and 3.2) or other claims arising out of this Agreement or the transactions contemplated hereby.

Limitation on Losses; Exclusive Remedy. (a) Losses payable by an Indemnifying Party under this Article VI shall not include Venture Losses. (b) Except with regard to compensation for claims paid to third parties, Losses payable by an Indemnifying Party under this Article VI shall not include punitive damages. (c) The amount of indemnifiable Losses incurred by an Indemnified Party under this Article VI, prior to application of applicable indemnification percentages, caps and thresholds, shall be (a) reduced by any insurance proceeds actually received by the Indemnified Party with respect to the Loss for which indemnification may be sought, net of retrospective premium adjustments and similar charges, and (b) reduced by any amounts actually recovered from any third parties, by way of indemnification or otherwise, with respect to the Loss for which indemnification may be sought, in each case net of expenses incurred by the Indemnified Party in collecting such proceeds or amounts. In the event an insurance or other claim by an Indemnified Party against a third party is pending at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when any insurance or third-party proceeds are received by the Indemnified Party, the indemnifiable Losses shall be adjusted to reflect the receipt of such proceeds and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. The Company and Member shall each use reasonable commercial efforts to obtain waivers of the insurer’s subrogation rights in each of its policies of insurance insuring matters which could constitute indemnifiable Losses under this Article VI. (d) The liability of an Indemnifying Party under this Article VI above shall be reduced by the net amount of any Tax benefits actually realized by the Indemnified Party or its members to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense. In the event Tax benefits have not been actually realized (through a refund of or deduction or credit against Taxes payable), or the net Tax benefit cannot finally be determined, at the time indemnification is sought from an Indemnifying Party, no reduction shall be made to the amount payable by the Indemnifying Party but, as and when the Tax benefits are actually realized and the net amount thereof finally determined, the indemnifiable Losses shall be adjusted to reflect the net Tax benefits realized and the Indemnified Party shall promptly refund to the Indemnifying Party any excess of the indemnification payment theretofore made over the adjusted amount payable. (e) Except as specifically set forth in this Article VI, the Company waives any rights and claims the Company may have against Member, whether at law or equity, relating to the Contributed Assets or the transactions contemplated hereby, other than claims for fraud. The rights and claims waived by the Company include claims for contribution or other rights of recovery arising out of or relating to any Environmental Law environmental law (whether now or hereinafter in effect), claims for breach of contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty. After the date hereof, Sections 6.2 and 6.3 will, in the absence of fraud, provide the exclusive remedy of the Company or any other member of the Company against Member, or Member against the Company, for any misrepresentation, breach of warranty, covenant or other agreement (other than those contained in Section Sections 2.4(c) and 3.2) or other claims arising out of this Agreement or the transactions contemplated hereby.