Common use of Limitations of Indemnification Clause in Contracts

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation to indemnify Buyer Indemnitees pursuant to this Section 8.2: (i) Seller's liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2. The limitations on Seller's indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by Seller. (ii) Seller and its Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which Buyer Indemnitees are entitled to recover under this Agreement exceeds 1.0% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above. (iii) Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of Buyer, Buyer Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Buyer’s obligations to indemnify Buyer Seller Indemnitees pursuant to this Section 8.26.3: (i) Seller's Buyer’s and its Affiliates’ aggregate liability under Section 6.3(a)(i) of this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2Liability Cap. The limitations on Seller's the indemnification obligations set forth in the prior sentence shall not apply to losses Adverse Consequences resulting from fraud or willful misconduct by Buyer or its Affiliates or to Seller’s right to payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. (ii) Seller Buyer and its Affiliates will have no liability for any Adverse Consequences, under Section 6.3(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Buyer Seller Indemnitees are entitled to recover under Section 6.3(a)(i) of this Agreement exceeds 1.0% of exceed the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Seller Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above, provided, further, that such Threshold Amount shall not apply to Seller’s right to the payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. (iii) Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 6 shall be the exclusive remedies of Buyer, Buyer the Seller Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement. (iv) Any claim that may be brought under Section 6.3(a)(ii) or Section 6.3(a)(iii), regardless of whether it may also be brought under Section 6.3(a)(i), shall not be subject to any limitation in Section 6.3(b)(i) or Section 6.3(b)(ii).

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the FRC Parties' obligations to indemnify Buyer the Company and the AMCI Parties Indemnitees pursuant to this Section 8.2:8.3(a) or the Company's obligations to indemnify the AMCI Parties pursuant to Section 8.3(b): (i) Seller's liability The FRC Parties' Liability for the matters described under Section 8.3(a) of this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2Cap. The limitations on Seller's the FRC Parties' indemnification obligations set forth in the prior sentence shall not apply to (A) losses resulting from any breach of the representations and warranties set forth in Sections 4.1 4.2, and 4.6 or (B) fraud or willful misconduct by Sellerthe FRC Parties or any of their Affiliates. The FRC Parties' liability under this Agreement for all matters other than fraud or willful misconduct by the FRC Parties or any of their Affiliates shall not exceed $100 million. The FRC Parties' Liability for Adverse Consequences related to Assumed Liabilities and fraud or willful misconduct by the FRC Parties or any of their Affiliates shall be unlimited. The Company's Liability for Adverse Consequences related to Assumed Liabilities shall be unlimited. (ii) Seller Except as set forth in the last sentence of this subparagraph (ii), the FRC Parties and its their Affiliates will have no liability Liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences (after taking into account the present value (discounted by 8%) of any Tax Benefit presently quantifiable with certainty by, and insurance and indemnity proceeds presently quantifiable with certainty to, the indemnified party with respect thereto) for which Buyer the Company or the AMCI Parties Indemnitees are entitled to recover under this Agreement exceeds 1.0% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer after which the Company and the AMCI Parties Indemnitees will be entitled to recover all amounts to which they are entitled in excess of to indemnification under this Agreement to the extent such Adverse Consequences exceed the Threshold Amount. In calculating the Threshold Amount or the Adverse Consequences under this Section, subject all Adverse Consequences which individually total less than $50,000 shall be excluded in their entirety and the FRC Parties and its Affiliates shall have no Liability hereunder to the Company or the AMCI Parties Indemnitees for such Adverse Consequences; provided that for purposes of this sentence, the Adverse Consequences from any events or actions resulting from the same or substantially similar occurrences shall be aggregated. Notwithstanding anything in this Section 8.3(c)(ii) to the contrary, the limitations on the FRC Parties' indemnification obligations set forth in the first two sentences of this Section 8.3(c)(ii) shall not apply to Adverse Consequences resulting from (iA) aboveany breach of the representations and warranties set forth in Sections 4.1 4.2, and 4.4, (B) any matter referred to in Section 8.3(b) or (C) fraud or willful misconduct by the FRC Parties or any of their Affiliates. (iii) Seller The Company and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any factthe AMCI Parties acknowledge and agree that, matter or circumstance within the actual knowledge of Buyerexcept as set forth below, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 11.1 shall be the exclusive remedies of Buyer, Buyer the Company and the AMCI Parties Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement and any other events, circumstances or conditions relating to the ownership or operation of the Subject Companies subsequent to the Closing Date, and whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever. The AMCI Parties hereby waive any claim or cause of action pursuant to common or statutory law or otherwise against the FRC Parties and its Affiliates with respect to Adverse Consequences or obligations of any nature whatsoever that relate to this Agreement or are attributable to the Business or ownership of the Contributed Interests whether arising before, on or after the Closing Date other than claims (A) pursuant to the terms of this Agreement, (B) for fraud or intentional misrepresentation and (C) for injunctive relief. (iv) Notwithstanding any other provision of this Agreement, the FRC Parties shall not be liable for any Adverse Consequences to the extent that an amount has been credited or allowed for in the Financial Statements of the Subject Companies or were taken into account in the calculation of the Working Capital Balance as of the Closing Date, and the FRC Parties shall not be liable for Adverse Consequences to the extent they arose from (A) a change in accounting or Tax Law, policy or practice made after the Closing Date or (B) any legislation not in force on the Closing Date. (v) Notwithstanding any other provision of this Agreement, the FRC Parties shall not be liable under this Article VIII for an amount to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of the Company, the AMCI Parties Indemnitees or any Affiliate to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party. (vi) Notwithstanding anything herein to the contrary, no indemnified party shall be entitled to indemnification under this Article VIII for Adverse Consequences arising out of or relating to breach of any representation or warranty in this Agreement if the indemnifying party can establish that the indemnified party had actual knowledge before the Closing Date of facts or circumstances which would cause the representation or warranty to be untrue. (vii) Except for matters involving fraud or willful misconduct, it is understood and agreed by the Company and the AMCI Parties that no director, officer, employee, agent, shareholder or Affiliate of the FRC Parties (including any shareholder, partner, director, officer, employee, agent or Affiliate of a shareholder) shall have (A) any personal liability to the Company or a AMCI Parties Indemnity as a result of the breach of any representation, warranty, covenant or agreement of the FRC Parties contained herein or otherwise arising out of or in connection with the transactions contemplated hereby or (B) any personal obligation to indemnify the Company or the AMCI Parties Indemnitees for any of their claims pursuant to Section 8.3, and the Company and KM, for itself and all other AMCI Parties Indemnitees, hereby waives and releases and shall have no recourse against any of such parties described in this Section 8.3(c)(viii) as a result of the breach of any representation, warranty, covenant or agreement of the FRC Parties contained herein or otherwise arising out of or in connection with the transactions contemplated hereby. (viii) Notwithstanding any other provision of this Article VIII, if the Company has been indemnified with respect to a matter arising under this Section 8.3, then the AMCI Parties Indemnitees shall not be entitled to any further indemnification under this Section 8.3 with respect to any loss in the value of the AMCI Parties' interest in the Company (as opposed to out of pocket losses) suffered with respect to the same matter.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Sellers' obligations to indemnify the Buyer Indemnitees pursuant to this Section 8.2: (i) Seller's The Sellers' liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2. The limitations on Seller's Sellers' indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by Sellerthe Sellers. (ii) Seller The Sellers and its their Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which the Buyer Indemnitees are entitled to recover under this Agreement exceeds 1.01% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, the Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above. (iii) Seller The Sellers and its their Affiliates shall not be liable to the Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of the Buyer, the Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to the Buyer, the Buyer Indemnitees or their Affiliates in writing. (iv) The Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of the Buyer, the Buyer Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement.

Limitations of Indemnification. The following limitations shall apply with regard to SellerBuyer's obligation obligations to indemnify Buyer Seller Indemnitees pursuant to this Section 8.28.3: (i) SellerBuyer's and its Affiliates' liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2Liability Cap. The limitations on SellerBuyer's indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by SellerBuyer. (ii) Seller Buyer and its Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which Buyer Seller Indemnitees are entitled to recover under this Agreement exceeds 1.0% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Seller Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above. (iii) PinnOak and each Seller acknowledge and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees agree that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of BuyerPinnOak, Buyer Sellers, Seller Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Buyer Parties’ obligations to indemnify Buyer Seller Indemnitees pursuant to this Section 8.26.3: (i) Seller's The Buyer Parties and their respective Affiliates’ aggregate liability under Section 6.3(a)(i) of this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2Liability Cap. The limitations on Seller's the indemnification obligations set forth in the prior sentence shall not apply to losses Adverse Consequences resulting from fraud or willful misconduct by any Buyer Party or any of their respective Affiliates or to Seller’s right to payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. (ii) Seller The Buyer Parties and its their respective Affiliates will have no liability for any Adverse Consequences, under Section 6.3(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Buyer Seller Indemnitees are entitled to recover under Section 6.3(a)(i) of this Agreement exceeds 1.0% of exceed the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Seller Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above, provided, further, that such Threshold Amount shall not apply to Seller’s right to the payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. (iii) Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 6 shall be the exclusive remedies of Buyer, Buyer the Seller Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement. (iv) Any claim that may be brought under Section 6.3(a)(ii) or Section 6.3(a)(iii), regardless of whether it may also be brought under Section 6.3(a)(i), shall not be subject to any limitation in Section 6.3(b)(i) or Section 6.3(b)(ii).

Limitations of Indemnification. The following limitations shall apply only with regard to Sellerthe Buyer's obligation obligations to indemnify Buyer the Seller Indemnitees pursuant to this Section 8.2:8.3(a): (i) SellerThe Buyer's liability Liability for the matters described under Section 8.3(a) of this Agreement shall not exceed 2550% of the Purchase Price paid in accordance with Section 2.2. The limitations on SellerPrice; provided that the Buyer's indemnification obligations Liability for the losses resulting from any breach of the representations and warranties set forth in Section 3.2 (a), (b), (d) and (e) and the prior sentence obligation to replace the Reclamation Bonds and the Letter of Credit pursuant to Section 6.8 shall not apply to losses resulting from fraud or willful misconduct by Sellerexceed 100% of the Purchase Price. (ii) Seller Except as set forth below, the Buyer and its Affiliates will have no liability Liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which Buyer the Seller Indemnitees are entitled to recover under this Agreement exceeds 1.0% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer the Seller Indemnitees will be entitled to recover all amounts to which they are entitled to indemnification under this Agreement. In addition, in excess of calculating the Threshold AmountAmount or the Adverse Consequences under this Section, subject all Adverse Consequences which individually total less than $50,000 shall be excluded in their entirety and the Buyer and its Affiliates shall have no Liability hereunder to the limitations set forth in (i) aboveSeller Indemnitees for such Adverse Consequences; provided that for purposes of this sentence, the Adverse Consequences from any events or actions resulting from the same or substantially similar occurrences shall be aggregated. (iii) The Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that that, except as set forth below, the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of Buyerthe Seller, Buyer the Seller Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement. The Seller hereby waives any claim or cause of action pursuant to common or statutory law or otherwise against the Buyer and its Affiliates with respect to Adverse Consequences or obligations of any nature whatsoever that relate to this Agreement or are attributable to the Subject Assets, the Acquired Equity Interests, the Acquired Companies, the Acquired Assets or the ownership and operation of the Acquired Companies, Fox River or the Acquired Assets, whether arising before, on or after the Closing Date other than claims (i) pursuant to the terms of this Agreement, (ii) for fraud, intentional misrepresentation or similar cause of action, and (iii) for injunctive relief. (iv) Notwithstanding the above, in no event shall the limitations set forth in Section 8.3(c)(i) and (ii) apply with respect to losses resulting from (A) fraud or willful misconduct by the Buyer or its Affiliates or (B) matters described under Section 8.3(b) of this Agreement.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Sellers' obligations to indemnify the Buyer Indemnitees pursuant to this Section 8.2: (i) Seller's The Sellers' and their Affiliates' liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2. The limitations on Seller's Sellers' indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by Sellerthe Sellers. (ii) Seller The Sellers and its their Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which the Buyer Indemnitees are entitled to recover under this Agreement exceeds 1.01% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, the Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above. (iii) Seller The Sellers and its their Affiliates shall not be liable to the Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of the Buyer, the Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to the Buyer, the Buyer Indemnitees or their Affiliates in writing. (iv) The Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of the Buyer, the Buyer Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement. Furthermore, the Buyer waives any right to assert any claim or otherwise hold any of the Sellers, other than El Paso CGP, liable for or responsible for any indemnification of the Buyer Indemnitees and their Affiliates under this Agreement, with it being acknowledged that only El Paso CGP shall be liable for or responsible for indemnifying the Buyer Indemnitees and their Affiliates under this Agreement.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Buyer’s obligations to indemnify Buyer Seller Indemnitees pursuant to this Section 8.26.3: (i) Seller's Buyer and its Affiliates’ aggregate liability under Section 6.3(a)(i) of this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2Liability Cap. The limitations on Seller's the indemnification obligations set forth in the prior sentence shall not apply to losses Adverse Consequences resulting from fraud or willful misconduct by Buyer or any of its Affiliates or to Seller’s right to payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. Notwithstanding the first sentence of Section 6.3(a), in the event of a liability arising under Section 6.3(a)(iv), such liability of Buyer will not be subject to either the Threshold Amount or the Liability Cap but shall be limited to the Adverse Consequences arising out of or resulting from Buyer’s breach in an amount not to exceed the difference between $255,000,000 and the aggregate portion of the Purchase Price paid by Buyer to Seller at all Applicable Closings prior to the date of such breach. (ii) Seller Buyer and its Affiliates will have no liability for any Adverse Consequences, under Section 6.3(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Buyer Seller Indemnitees are entitled to recover under Section 6.3(a)(i) of this Agreement exceeds 1.0% of exceed the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Seller Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above, provided, further, that such Threshold Amount shall not apply to Seller’s right to the payment of the full Purchase Price pursuant to the terms and conditions of this Agreement. (iii) Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing. (iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 6 shall be the exclusive remedies of Buyer, Buyer the Seller Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement. (iv) Any claim that may be brought under Section 6.3(a)(ii), Section 6.3(a)(iii) or Section 6.3(a)(iv), regardless of whether it may also be brought under Section 6.3(a)(i), shall not be subject to any limitation in Section 6.3(b)(i) or Section 6.3(b)(ii), as the case may be.

Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation the Sellers' obligations to indemnify the Buyer Indemnitees Indemnities pursuant to this Section 8.2: (i) Seller's The Sellers' liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2. The limitations on Seller's Sellers' indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by Sellerthe Sellers. (ii) Seller The Sellers and its their Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which the Buyer Indemnitees Indemnities are entitled to recover under this Agreement exceeds 1.01% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, the Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above. (iii) Seller The Sellers and its their Affiliates shall not be liable to the Buyer Indemnitees Indemnities for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of the Buyer, the Buyer Indemnitees Indemnities and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to the Buyer, the Buyer Indemnitees Indemnities or their Affiliates in writing. (iv) The Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of the Buyer, the Buyer Indemnitees Indemnities and their Affiliates with respect to the transactions contemplated by this Agreement.