Common use of Limitation on Remedies Clause in Contracts

Limitation on Remedies. (i) Notwithstanding anything to the contrary in this Agreement, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(d).

Limitation on Remedies. (i) Notwithstanding anything to the contrary in this Agreement, except (ia) for the remedy of specific performance to the extent permitted in Section 9.11 and (iib) with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary Subsidiary, the Sponsors, Värde Partners, Inc. and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement in accordance with Section 8.1 and, to the extent and only to the extent provided in this Section 8.3, to receive payment of the Parent Termination Fee and any Expenses payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against any of the Parent Related Parties under or relating to this Agreement Agreement, the Guarantee, or the Equity Commitment Letter in respect of any oral representations made or alleged to be made in connection herewith or therewith or the transactions contemplated herebythereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against any of the Parent Related Parties arising out of this Agreement Agreement, the Guarantee or the Equity Commitment Letter, in respect of any oral representations made or alleged to be made in connection herewith or therewith or the transactions contemplated herebythereby, nor shall any of the Parent Related Parties have any further liability or obligation relating to or arising out of this Agreement, the Guarantee, or the Equity Commitment Letter in respect of any oral representations made or alleged to be made in connection herewith or therewith or the transactions contemplated thereby. The Company acknowledges that both Parent and Merger Subsidiary are newly-formed companies and do not have any material assets except in connection with this Agreement or the Equity Commitment Letter as expressly set forth herein and therein. The provisions of this Section 8.3(f)(i) are intended to be for the benefit of, and shall be enforceable by, each of the Parent Related Parties. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination FeeFee and Expenses payable pursuant to Section 8.3(d), (i) in no event shall the Company be entitled to specific performance of this Agreement Agreement, the Guarantee or the Equity Commitment Letter from and after such time as the Company has received the Parent Termination Fee and Expenses payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 to effect the consummation of the Merger and (B) the Parent Termination Fee and any Expenses payable pursuant to Section 8.3(d).

Limitation on Remedies. (i) Notwithstanding anything to From and after the contrary in this Agreement, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this AgreementClosing, the Company’s sole and exclusive remedy (whether at lawof an Indemnified Party, in equitywith respect to any claim of any nature whatsoever, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise arising out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated herebyContemplated Transactions, nor shall be pursuant to and limited by the provisions set forth in this Article 11 and shall be first satisfied, in the case of the indemnification pursuant to Sections 11.2.1.1, 11.2.1.2, 11.2.2.1 and 11.2.2.2 (except for any breach of the Company Fundamental Representations or Seller Fundamental Representations), solely against and to the extent of the outstanding principal amount for the Buyer PIK Notes together with cash received in respect thereof held in the Indemnity Escrow Account. In the case of all other sections, any claim may only be made solely in accordance with the limitations set forth in Section 11.4.1, firstly against any Seller to the extent of the then outstanding principal amount of the then outstanding Buyer PIK Notes held by such Seller and shall not otherwise be made against any Seller unless the Buyer PIK Notes have been paid off in full. In no event may a claim be made against any Affiliate of a Seller or any of the Seller’s or its Affiliate’s respective partners, members, managers, directors, stockholders, investment bankers, brokers, Representatives or controlling Persons, or any Affiliate of any of the foregoing, including the Sellers’ Representative. Each of the Company, Buyer and each Seller hereby irrevocably waives, to the fullest extent permitted under applicable law, and agrees not to assert and to cause each Indemnified Party, as the case may be, not to assert, in any Action of any kind or otherwise, any and all rights, claims and causes of action it may now or hereafter have against any other Person party, any Affiliate thereof or any of their respective partners, members, managers, directors, stockholders, investment bankers, brokers, Representatives or controlling Persons, or any Affiliate of any of the foregoing (including, the Sellers’ Representative) arising out of or relating to this Agreement, other than claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Article 11. In the event of any indemnification of a Buyer Indemnitee pursuant to Section 11.2.2 as a result of a breach of a representation or warranty solely made by or breach of a covenant or agreement solely the obligation of a particular Seller, then any claim against such Seller shall be first satisfied by reducing the outstanding principal amount of such Seller’s Buyer PIK Note held in the Indemnity Escrow Account and against any cash received in respect thereof held in the Indemnity Escrow Account, and then, to the extent that the outstanding principal amount of Seller’s Buyer PIK Note held in the Indemnity Escrow Account is reduced to zero and no cash remains in the Indemnity Escrow Account, and if the Buyer Indemnitee is entitled to bring or maintain indemnification beyond the Indemnity Escrow Amount, by reduction of outstanding Buyer PIK Notes held by such Seller. For avoidance of doubt, the Buyer and each of the Sellers acknowledges and agrees that its and each Buyer Indemnitee’s and Seller Indemnitee’s sole recourse for any other Legal Proceeding against the Parent Related Parties and all Losses arising out of or relating to this Agreement or the Contemplated Transactions shall be pursuant to this Article 11. Notwithstanding the foregoing, this Section 11.5 shall not apply with respect to any claim for fraud in the negotiation or execution of this Agreement or the transactions contemplated hereby. For the avoidance intentional breach of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) any covenant or agreement set forth in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(d)Agreement.

Limitation on Remedies. (ia) Notwithstanding anything to the contrary in this Agreement, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Feecontained herein, (i) in no event shall the Company Holders shall not be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable liable for any Losses pursuant to Section 8.3(d8.3(a) unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Company Holders exceeds $175,000 in the aggregate (the “Deductible Amount”), in which event the Company Holders shall, subject to the other limitations contained herein, be liable only for the portion of such Losses in excess of the Deductible Amount, (ii) under no circumstances shall the maximum aggregate amount of indemnifiable Losses which may be recovered from the Company Holders shall be entitled the amount, if any, of cash remaining in the Escrow Account on or prior to receive both the Escrow Termination Date (Athe “Cap”), it being understood that the Company Holders shall not be liable for Losses in the aggregate in excess of the Cap, and (iii) a grant of specific performance Parent shall not be liable for any Losses pursuant to Section 9.11 8.3(c) unless and until the aggregate amount of indemnifiable Losses which may be recovered from Parent exceeds the Deductible Amount, in which event Parent shall, subject to the other limitations contained herein, be liable only for the portion of such Losses in excess of the Deductible Amount, it being understood that Parent shall not be liable for Losses in the aggregate in excess of the Cap; provided however, that, solely with respect to breaches of Section 2.11(c), the Cap shall be an amount equal to $5,000,000, less the aggregate amount (Bif any) previously paid to the Parent Termination Fee payable Stockholders’ Representative on behalf of the Company Holders pursuant to Section 8.3(d)2.11. The Deductible Amount and the Cap shall not apply to any inaccuracy in or breach of any Fundamental Representations or fraud and the Deductible Amount shall not apply to any failure to perform or comply with any agreement, obligation or covenant contained in this Agreement.

Limitation on Remedies. From and after the Closing, the sole and exclusive remedy of each Seller Indemnitee and Buyer Indemnitee as against any Person, with respect to all claims relating to the subject matter of this Agreement (other than claims relating to Taxes), shall be pursuant to the indemnification provisions set forth in this Section 10. From and after the date hereof until the Closing, the sole and exclusive remedy of each Seller Indemnitee (including the Company) and each Buyer Indemnitee with respect to any breach or inaccuracy of any of the representations and warranties set forth in Sections 4, 5 and 6 or any breach of any of the covenants and agreements set forth in Section 7 shall be termination of this Agreement pursuant to Section 12. In furtherance of the foregoing, effective as of the Closing Date, (i) Notwithstanding anything each Seller shall be deemed to release, remise and forever discharge any and all rights, claims and causes of action it may now or hereafter have against the Buyer and any of its respective Affiliates, members, partners, shareholders, officers, directors, employees, agents and representatives and their respective Affiliates (including the Company) relating to the contrary in subject matter of this Agreement, except other than (iw) claims for indemnification asserted as permitted by and in accordance with the remedy provisions set forth in this Section 10, (x) claims by directors, officers and employees of specific performance the Company for indemnification with respect to any periods prior to the Closing, (y) to the extent permitted in under Section 9.11 12.2, claims asserted after termination of this Agreement and (z) claims arising out of fraud, (ii) the Buyer shall be deemed to release, remise and forever discharge any and all rights, claims and causes of action it may now or hereafter have against any and all of the Sellers, their respective Affiliates, members, partners, shareholders, officers, directors, employees, agents and representatives and their respective Affiliates relating to the subject matter of this Agreement, other than (x) claims for indemnification asserted as permitted by and in accordance with the provisions set forth in this Section 10, (y) to the extent permitted under Section 12.2, claims asserted after termination of this Agreement, and (z) claims arising out of fraud, and (iii) the parties agree that the waiver in writing of any condition to Closing based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant, agreement or obligation, shall be deemed a waiver of the right to indemnification under this Section 10 or Section 7.7 with respect to liabilities the specific inaccuracy of such representation or damages warranty, or the specific failure to perform or compliance with such covenant, agreement or obligation, in any such case as set forth in such written waiver. The Buyer represents that were it has no Knowledge of the result inaccuracy or non-compliance of fraud any representation, warranty, covenant or any Willful and Material Breach on obligation made or undertaken by the part of Parent Sellers or Merger Subsidiary the Company in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(d)Schedules attached hereto.

Limitation on Remedies. (a)(I) So long as any Senior Obligation shall remain outstanding or during any Payment Blockage Period, except as expressly permitted by and subject to the terms of this Agreement (including, without limitation, Section 2.5(a)(II) below), the Junior Obligees shall have no right to (i) Notwithstanding anything except to the contrary extent not prohibited by clause (II) of this Section 2.5(a), commence, prosecute or participate in this Agreementany administrative, legal or equitable action against any of the Credit Parties relating to any Junior Obligations (it being understood that the holders of the Junior Obligations may participate in any such action in which the Tranche A Lender or its representative is participating (and not commenced by the holders of the Junior Obligations in such capacity) to the extent necessary to maintain their claims to, and to preserve their rights in respect of, the Junior Obligations), (ii) commence or join in the commencement of a proceeding under any bankruptcy, insolvency, liquidation, reorganization or other similar law in its capacity as a holder of Junior Obligations (it being understood that the holders of the Junior Obligations may participate in any such proceeding not commenced by the holders of the Junior Obligations in such capacity to the extent necessary to maintain their claims to, and to preserve their rights in respect of, the Junior Obligations), or (iii) direct the Administrative Agent or the Collateral Agent to do any of the foregoing and (II) during any Payment Blockage Period, except as expressly permitted by and subject to the terms of this Agreement (including, without limitation, Section 2.5(c) below), the Junior Obligees shall have no right to (i) for take any action or institute any proceedings to collect or enforce the remedy payment of specific performance to any of the extent permitted in Section 9.11 Junior Obligations (other than the Tranche B Interest Reserve Account and any proceeds thereof), (ii) with take any action under the Financing Documents or otherwise to foreclose or sell or otherwise realize upon any Collateral (other than the Tranche B Interest Reserve Account and any proceeds thereof) or enforce any of the Financing Documents or to exercise any right, remedy or power in respect of the Junior Obligations under any of the Financing Documents or otherwise available to liabilities it under applicable law, or damages that were (iii) direct the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement Administrative Agent or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and Collateral Agent to do any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(d)foregoing.

Limitation on Remedies. Except as otherwise expressly provided in any Ancillary Document and, in the case of the Buyer Indemnified Parties as provided in the Representation and Warranty Insurance Policy, from and after the Closing, the sole and exclusive remedy of each Buyer Indemnified Party and Seller Indemnified Party as against any Indemnifying Party, with respect to all claims of any nature whatsoever relating to the Transactions, including any breach of any representation, warranty, covenant or agreement contained in this Agreement, shall be pursuant to and limited by the indemnification provisions set forth in this Article IX, it being understood that (ix) the foregoing limitations shall not apply in respect of a claim of fraud or for the remedies of injunctive relief or specific performance set forth herein and (y) nothing in this sentence shall operate to interfere with or impede the operation of the provisions of Section 2.4 or 6.2(e). Notwithstanding anything to the contrary set forth herein, but except as otherwise expressly provided in any Ancillary Document, (A) any amount to which any Buyer Indemnified Party is entitled pursuant to this Agreement, except Article IX (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) other than with respect to liabilities or damages that were the result of fraud or any Willful Interim Losses) shall be limited to, and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreementsolely satisfied from, the Company’s sole funds that remain in the Indemnity Escrow Account at the time and exclusive remedy (whether at law, shall be claimed by such Buyer Indemnified Party upon the provision of a notice of a claim in equity, such amount to the Escrow Agent in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, accordance with the “Parent Related Parties”) for all losses and damages that arise out terms of the failure of the transactions under this Escrow Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable any amount to which any Buyer Indemnified Party is entitled pursuant to Section 8.3(dthis Article IX with respect to Interim Losses shall be limited to, and solely satisfied from, the funds that remain in the Interim Loss Indemnity Escrow Account at the time and shall be claimed by such Buyer Indemnified Party upon the provision of a notice of a claim in such amount to the Escrow Agent in accordance with the terms of the Escrow Agreement; provided, that to the extent the amount of funds in the Interim Loss Indemnity Escrow Account is, at any time, less than or equal to the aggregate amount to which the Buyer Indemnified Parties are entitled under this Article IX with respect to Interim Losses (such shortfall, the “Interim Loss Indemnity Escrow Shortfall Amount”), then the Buyer Indemnified Parties may satisfy such liability from any remaining funds in the Indemnity Escrow Account, and such funds shall be claimed by such Buyer Indemnified Party upon the provisions of a notice of a claim in the amount of the Interim Loss Indemnity Escrow Shortfall Amount to the Escrow Agent in accordance with the terms of the Escrow Agreement.

Limitation on Remedies. (a) The Right of Setoff, where applicable, and recovery from the Escrow Fund shall be the sole and exclusive remedies of the Indemnified Parties under this Agreement or for any Losses incurred by any Indemnified Party (other than claims for injunctive relief and/or specific performance of covenants that require performance after the Closing), and the Indemnified Parties shall in all cases proceed against the Escrow Fund until it has been exhausted prior to exercising the Right of Setoff (provided that any amounts in the Escrow Fund subject to a claim by an Indemnified Party pursuant to Section 8.3 shall be considered exhausted for this purpose). Notwithstanding the foregoing, (i) Notwithstanding anything liability for any Losses based on any inaccuracy in or breach of any Fundamental Representations or the matters referenced in Sections 3.8(h)(i) and 8.3(a)(ii) through 8.3(a)(vi) shall not be limited to the contrary in Right of Setoff and recovery from the Escrow Fund, and instead shall be limited to the aggregate amount of the Merger Consideration paid, or due and payable, under this Agreement, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) with respect to liabilities a Company Equityholder’s liability for his, her or damages that were the result of fraud its own fraud, intentional misrepresentation or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or willful misconduct shall not be limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure of the transactions under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated herebyArticle VIII. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall will any Company Equityholder be liable to the Indemnified Parties for any amounts in excess of the portion of the Merger Consideration actually received by, or in the case of the Escrow Fund and the Shareholders’ Representative Expense Fund, allocated to, such Company be entitled to specific performance Equityholder (except in circumstances of this Agreement from and after fraud, intentional misrepresentation or willful misconduct by such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(dEquityholder).

Limitation on Remedies. Subject to the subsequent sentence, and except as set forth in Section 8.10 or to the extent any other remedy may be provided by applicable law and such other remedy may not, under applicable law, be waived or otherwise limited or excluded by agreement, (i) Notwithstanding anything prior to the contrary Closing the rights set forth in this AgreementArticle X, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) at and after the Closing the rights of the Parties set forth in Section 7.2 and the Indemnity Escrow Agreement and in Section 7.3, shall in each case be the sole and exclusive remedies of the Parties with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or the transactions contemplated by this Agreement, the Company’s sole and exclusive remedy claims (whether at law, in equity, based in contract, in tort or otherwise) against Parentresulting from or relating to this Agreement or any of the transactions contemplated hereby, Merger Subsidiary including without limitation any claim resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement; provided each Party may enforce that certain Confidentiality Agreement dated as of January 2, 2002 by and their respective between the Company and Parent (the "Confidentiality Agreement"). Except (i) to the extent any other remedy may be provided by applicable law and such other remedy may not, under applicable law, be waived or otherwise limited or excluded by agreement, (ii) as set forth in Section 8.10, (iii) after termination of this Agreement in accordance with Article X, for claims of Parent pursuant to Section 10.3, and (iv) after the Closing, for claims of the Parent Indemnified Parties pursuant to Section 7.2 and the Indemnity Escrow Agreement, Parent will not assert, and will cause its Subsidiaries (including without limitation after the Closing the Company and its Subsidiaries) and Affiliates and all Parent Indemnified Parties not to assert, any claim against any of the Fully-Diluted Stockholders or any of their Affiliates or any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholderspartners, directors, officers, employees, agents stockholders, attorneys, representatives or other Representativescontrolling persons, membersor seek to hold the Fully-Diluted Stockholders or any such Persons liable, Financing Sources in respect of any claim relating to the Company, any of its Subsidiaries, this Agreement or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out of the failure any of the transactions under contemplated hereby and shall indemnify and hold harmless the Fully-Diluted Stockholders and such Persons against all such claims. Notwithstanding anything in this Agreement to the contrary, no Party hereto shall be consummated or deemed to have waived any breach or failure to perform as required hereunder claim, including any claim for fraud, which cannot be waived under applicable law (common or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 and (B) the Parent Termination Fee payable pursuant to Section 8.3(d).

Limitation on Remedies. The Right of Setoff and recovery from the Escrow Fund shall be the sole and exclusive remedies of the Indemnified Parties under this Agreement or for any Losses incurred by any Indemnified Party (other than claims for injunctive relief and/or specific performance of covenants that require performance after the Closing). Notwithstanding the foregoing, (i) Notwithstanding anything liability for any Losses based on any inaccuracy in or breach of any Fundamental Representations or the matters referenced in Sections 6.3(a)(ii) through 6.3(a)(viii) shall not be limited to the contrary Right of Setoff and recovery from the Escrow Fund, and Losses in excess thereof shall be recovered from the Company Equityholders pursuant to this Agreement, except (i) and the liability for the remedy of specific performance any such Losses shall instead be limited to the extent permitted in Section 9.11 aggregate amount of the Merger Consideration paid, or due and payable, under this Agreement, (ii) with respect liability for any Losses based on any inaccuracy in or breach of the IP Representation shall not be limited to liabilities or damages that were the result Right of fraud or any Willful Setoff and Material Breach on recovery from the part of Parent or Merger Subsidiary Escrow Fund, and Losses in connection with this Agreement or excess thereof shall be recovered from the transactions contemplated by Company Equityholders pursuant to this Agreement, and the Company’s sole and exclusive remedy liability for any such Losses shall instead be limited to the aggregate amount of $18,661,000 (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, the “Parent Related Parties”) for all losses and damages that arise out inclusive of the failure of the transactions Escrow Fund); and (iii) a Company Equityholder’s liability for its own fraud, intentional misrepresentation or willful misconduct shall not be limited under this Agreement to be consummated or any breach or failure to perform as required hereunder or otherwise, shall be to terminate this Agreement and, to the extent and only to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated herebyArticle VI. For the avoidance of doubt, while the Company may pursue both specific performance as permitted in connection with any recovery by Section 9.11 and the payment of the Parent Termination Feean Indemnified Party for Losses, (i) in no event the Indemnified Party shall recover any such Losses by Right of Setoff and recovery from the Escrow Fund, to the extent available, before recovering such Losses from the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) Equityholders; and (ii) under no circumstances shall the obligations of the Company Equityholders to make payment on account of Losses in excess of the Right of Setoff shall be entitled several but not joint, and with respect to receive both (A) a grant any such Losses, the amount of specific performance pursuant to Section 9.11 and (B) recovery which may be sought by the Parent Termination Fee payable pursuant to Section 8.3(d)Indemnified Party from any Company Equityholder shall not exceed the Company Equityholder’s Pro Rata Portion of such Losses.

Limitation on Remedies. (i) Notwithstanding anything to the contrary any provision in this Agreement, except (i) for the remedy of specific performance to the extent permitted in Section 9.11 and (ii) with respect to liabilities or damages that were the result of fraud or any Willful and Material Breach on the part of Parent or Merger Subsidiary in connection with this Agreement or any other Operative Agreement to the transactions contemplated by this Agreementcontrary, if an Agency Agreement Event of Default described in Section 5.1(c) or resulting from a default under Section 2.7 hereof shall have occurred (such Agency Agreement Event of Default, a "Construction Risk Event") and no other Event of Default has occurred and is continuing, the Company’s sole and exclusive remedy Construction Agent shall either (whether at law, in equity, in contract, in tort or otherwisei)(A) against Parent, Merger Subsidiary and their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents or other Representatives, members, Financing Sources or other financing sources, managers, general or limited partners or assignees (collectively, arrange for the “Parent Related Parties”) for all losses and damages that arise out sale of the failure applicable Property (a "Non-Completed Property") on behalf of the transactions under this Agreement Lessor to a third party in an arms length transaction, such sale to close within 90 days after the occurrence of such Construction Risk Event, and pay to the Lessor an amount (the "Construction Risk Payment") equal to the sum of (1) the Non-Completion Amount for such Non-Completed Property and (2) the net proceeds realized by the Lessor from the sale of such Non-Completed Property (provided that if such sale does not occur within such 90-day period, such sale shall be deemed to have occurred on the 90th day and the net proceeds shall be deemed to be consummated or any breach or failure to perform as required hereunder or otherwise$1.00), but not in excess of the Termination Value for such Non-Completed Property, and shall be to terminate this Agreement and, also pay all costs and expenses attributable to the extent sale of such Non-Completed Property, including, without limitation, fees and only disbursements of counsel to the extent provided in Section 8.3, to receive payment of the Parent Termination Fee payable pursuant to Section 8.3(d), and upon payment in full of such amounts, neither the Company nor any other Person shall have any rights or claims against the Parent Related Parties under or relating to this Agreement or the transactions contemplated hereby, nor shall the Company or any other Person be entitled to bring or maintain any other Legal Proceeding against the Parent Related Parties arising out of this Agreement or the transactions contemplated hereby. For the avoidance of doubt, while the Company may pursue both specific performance as permitted by Section 9.11 and the payment of the Parent Termination Fee, (i) in no event shall the Company be entitled to specific performance of this Agreement from and after such time as the Company has received the Parent Termination Fee payable pursuant to Section 8.3(d) and (ii) under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance pursuant to Section 9.11 Lessor and (B) satisfy each of the Parent conditions set forth in Section 10.1 of the Lease; or (ii) purchase such Non-Completed Property from the Lessor for Termination Fee payable Value for such Non-Completed Property within 90 days after the occurrence of such Construction Risk Event. Any sale of the Non-Completed Property pursuant to clause (A) above shall be subject to the approval of the Agent if the Construction Risk Payment with respect thereto is not equal to or greater than the Termination Value with respect to such Non-Completed Property; provided, however, that no withholding of approval by the Agent shall result in the Construction Agent's liability hereunder for any amount in excess of the NonCompletion Amount. The payment by the Construction Agent of either amount set forth in the first sentence of this Section 8.3(d)5.4 shall satisfy the liability of the Lessee under the Lease for any Lease Event of Default occurring prior to the Completion Date with respect to a Construction Period Property that is caused by an event that is also an Agency Agreement Event of Default. The limitation of Construction Agent's liability contained in this Section 5.4 shall in no event constitute a limitation on Lessee's liability under Section 12 of the Participation Agreement.