Common use of Limitations on Seller Indemnification Clause in Contracts

Limitations on Seller Indemnification. Notwithstanding the foregoing provisions of Section 12.1, (a) Seller shall not be required to indemnify Purchaser or any Purchaser-Related Entities under this Agreement unless the aggregate of all amounts for which an indemnity would otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such event, Seller shall be responsible for the entire amount including all amounts representing the Basket Limitation, (b) in no event shall the liability of Seller with respect to the indemnification provided for in Section 12.1 above exceed in the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser obtains knowledge (and for purposes hereof, such knowledge shall include any information contained in the Due Diligence Material) of any inaccuracy or breach of any representation, warranty or covenant of Seller contained in this Agreement (a “Purchaser-Waived Breach”) and nonetheless proceeds with and consummates the Closing, then Purchaser and any Purchaser-Related Entities shall be deemed to have waived and forever renounced any right to assert a claim for indemnification under this Article 12 for, or any other claim or cause of action under this Agreement, at law or in equity on account of any such Purchaser-Waived Breach, and (d) notwithstanding anything herein to the contrary, the Basket Limitation and the Cap Limitation shall not apply with respect to Losses suffered or incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 5.3, Section 5.4, Section 11.10, or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms of this Agreement. Notwithstanding anything contained in this Agreement or in any closing document to the contrary, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of any such direct or indirect partners or affiliates, or the directors, officers or shareholders of any of the foregoing, be subject to satisfaction of any liabilities or obligations of Seller under this Agreement or in any closing document delivered by Seller at Closing and in no event shall Seller be liable for, nor shall Purchaser seek, any consequential, indirect or punitive damages from Seller.

Limitations on Seller Indemnification. Notwithstanding any other provision hereof or of any applicable law, the foregoing provisions of Section 12.1, (a) Seller Buyer Indemnitees shall not be required entitled to indemnify Purchaser or any Purchaser-Related Entities under this Agreement unless the aggregate make a claim as a result of all amounts for which an indemnity would otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such event, Seller shall be responsible for the entire amount including all amounts representing the Basket Limitation, (b) in no event shall the liability of Seller with respect to the indemnification provided for in Section 12.1 above exceed in the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser obtains knowledge (and for purposes hereof, such knowledge shall include any information contained in the Due Diligence Material) of any inaccuracy or a breach of any representation, warranty or covenant which survives the Closing pursuant to Section 5 hereof against Seller unless such claim, together with all other claims of Seller contained in this the Buyer Indemnitees under Section 18.2.1 hereunder and under the equivalent provisions of the SIG Agreement and the St. Xxxxxx Casino Agreement (a “Purchaser-Waived Breach”each as defined in Section 36), exceed in the aggregate $200,000 (in which case only the excess over $200,000 of such Claims will be paid); provided, however, that (i) and nonetheless proceeds such $200,000 minimum threshold with and consummates the Closing, then Purchaser and respect to indemnifiable Damages shall not apply to any Purchaser-Related Entities shall be deemed to have waived and forever renounced any right to assert a claim for indemnification made by Buyer under this Article 12 for, or any other claim or cause of action under this Agreement, at law or in equity on account of any such Purchaser-Waived Breach, and (d) notwithstanding anything herein to the contrary, the Basket Limitation and the Cap Limitation shall not apply Agreement with respect to Losses suffered (w) the breach or incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 5.3, Section 5.4, Section 11.10, or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms of this Agreement. Notwithstanding anything contained in this Agreement or in any closing document to the contrary, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of any such direct or indirect partners or affiliates, or the directors, officers or shareholders inaccuracy of any of the foregoingrepresentations or warranties contained in Section 5.1 (Organization, be subject Standing and Authority), Section 5.3 (Title), or Section 5.4 (Litigation), (x) the gross negligence, willful misconduct or fraud of Seller, (y) any Excluded Obligation, or (z) Seller’s indemnification obligation pursuant to satisfaction Section 18.2.2, (the items described in the immediately preceding clauses (w), (x), (y) and (z), collectively, the “Seller Retained Liabilities”), and (ii) except with respect to an indemnification obligation in respect of any liabilities or a Seller Retained Liability, Seller’s indemnification obligations of Seller under this Agreement or in any closing document delivered by Seller at Closing and in no event shall Seller be liable for, nor shall Purchaser seek, any consequential, indirect or punitive damages from Seller.for Damages under

Limitations on Seller Indemnification. Notwithstanding any other provision hereof or of any applicable law, the foregoing provisions of Section 12.1, (a) Seller Buyer Indemnitees shall not be required entitled to indemnify Purchaser or any Purchaser-Related Entities under this Agreement unless the aggregate make a claim as a result of all amounts for which an indemnity would otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such event, Seller shall be responsible for the entire amount including all amounts representing the Basket Limitation, (b) in no event shall the liability of Seller with respect to the indemnification provided for in Section 12.1 above exceed in the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser obtains knowledge (and for purposes hereof, such knowledge shall include any information contained in the Due Diligence Material) of any inaccuracy or a breach of any representation, warranty or covenant which survives the Closing pursuant to Section 5 hereof against Seller unless such claim, together with all other claims of Seller contained in this the Buyer Indemnitees under Section 18.2.1 hereunder and under the equivalent provisions of the SIG Agreement and the Xxxx Xxxxx Casino Agreement (a “Purchaser-Waived Breach”each as defined in Section 36), exceed in the aggregate $200,000 (in which case only the excess over $200,000 of such Claims will be paid); provided, however, that (i) and nonetheless proceeds such $200,000 minimum threshold with and consummates the Closing, then Purchaser and respect to indemnifiable Damages shall not apply to any Purchaser-Related Entities shall be deemed to have waived and forever renounced any right to assert a claim for indemnification made by Buyer under this Article 12 for, or any other claim or cause of action under this Agreement, at law or in equity on account of any such Purchaser-Waived Breach, and (d) notwithstanding anything herein to the contrary, the Basket Limitation and the Cap Limitation shall not apply Agreement with respect to Losses suffered (w) the breach or incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 5.3, Section 5.4, Section 11.10, or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms of this Agreement. Notwithstanding anything contained in this Agreement or in any closing document to the contrary, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of any such direct or indirect partners or affiliates, or the directors, officers or shareholders inaccuracy of any of the foregoingrepresentations or warranties contained in Section 5.1 (Organization, be subject Standing and Authority), Section 5.3 (Title), or Section 5.4 (Litigation), (x) the gross negligence, willful misconduct or fraud of Seller, (y) any Excluded Obligation, or (z) Seller’s indemnification obligation pursuant to satisfaction Section 18.2.2, (the items described in the immediately preceding clauses (w), (x), (y) and (z), collectively, the “Seller Retained Liabilities”), and (ii) except with respect to an indemnification obligation in respect of a Seller Retained Liability, Seller’s indemnification obligations for Damages under Section 18.2.1 of this Agreement (including, without limitation, indemnification obligations with respect to environmental claims under Section 5.11) shall not exceed, together with Seller’s equivalent indemnification obligations under the SIG Agreement and the Xxxx Xxxxx Casino Agreement, in the aggregate $14,375,000. The amount of any liabilities or obligations indemnifiable Damages under Section 18.2.1 shall be reduced by any insurance proceeds actually received with respect thereto (it being understood that after the satisfaction in full of indemnifiable Damages hereunder, the Buyer Indemnitees shall assign to Seller under this Agreement or in any closing document delivered by Seller at Closing and in no event shall Seller be liable forall of its rights to unpaid insurance proceeds with respect to insurance coverage, nor shall Purchaser seek, any consequential, indirect or punitive damages from Sellerbut only to the extent applicable to such Damages).

Limitations on Seller Indemnification. Notwithstanding the foregoing provisions of Section 12.1, (a) Seller shall not be required to indemnify Purchaser or any Purchaser-Related Entities under this Agreement unless the aggregate of all amounts for which an indemnity would otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such event, Seller shall be responsible for the entire amount including all amounts representing the Basket Limitation, (b) in In no event shall the liability indemnification obligations of Seller the Sellers include any obligation to provide indemnification for Losses of the type identified in Section 11.2(a) (other than with respect to any Fundamental Representations, and the indemnification provided for representations and warranties contained in Section 12.1 above exceed in 4.15 (Taxes) and Sections 4.8(a)(i) (Seller Owned Real Property) and 4.8(b)(i) (Seller Leased Real Property)) (the “Seller Covered Claims”), unless and until the aggregate amount of all Losses arising out of such Seller Covered Claims for which indemnification is sought exceeds on a cumulative basis an amount equal to $550,000 (the Cap Limitation“Seller Deductible”); in which case indemnification under this Article 11 shall be available (subject to the other limitations herein) only for Losses in excess of the Seller Deductible. (b) The maximum obligation of the Sellers to provide indemnification to any Purchaser Indemnified Parties (i) under Section 11.2(a) shall not exceed an amount equal to ten percent (10%) of the Purchase Price, (ii) under Section 11.2(c)(ii) shall not exceed an amount equal to ten percent (10%) of the Purchase Price, and (iii) with respect to Fundamental Representations and the representations and warranties contained in Section 4.15 (Taxes) and Sections 4.8(a)(i) (Seller Owned Real Property) and 4.8(b)(i) (Seller Leased Real Property), shall not exceed the Purchase Price. (c) if prior Notwithstanding anything to the contrary contained in this Article 11, Losses subject to indemnification pursuant to Section 11.2 shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement or being addressed by more than one clause under Section 11.2. (d) Notwithstanding anything herein to the contrary and except as set forth in Article 3, the Sellers shall have no obligation to indemnify any Purchaser Indemnified Parties with respect to any Losses relating to the amount or conditions of any inventory of the Sellers delivered to the Purchaser at the Closing, Purchaser obtains knowledge absent fraud. (and e) For the avoidance of doubt, the limitations set forth in this Section 11.4 shall not apply to any Losses arising out of actual common law fraud (with intent to deceive) by the Sellers under this Agreement. (f) The Sellers shall not be liable under this Article 11 for purposes hereof, such knowledge shall include any information contained in the Due Diligence Material) Losses based upon or arising out of any inaccuracy in or breach of any representation, warranty representations or covenant warranties of Seller the Sellers contained in this Agreement (a “Purchaser-Waived Breach”) and nonetheless proceeds with and consummates if the Closing, then Purchaser and any Purchaser-Related Entities shall be deemed to have waived and forever renounced any right to assert a claim for indemnification under this Article 12 for, had knowledge of such inaccuracy or any other claim or cause of action under this Agreement, at law or in equity on account of any such Purchaser-Waived Breach, and (d) notwithstanding anything herein breach prior to the contrary, the Basket Limitation and the Cap Limitation shall not apply with respect to Losses suffered or incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 5.3, Section 5.4, Section 11.10, or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms date of this Agreement. (g) Notwithstanding anything contained in any other provision of this Agreement Agreement, if Purchaser has received a title commitment and survey for a Designated Plant and Sellers have cured any Encumbrances or in any closing document other title defects which would reasonably be expected to the contraryrestrict Purchaser’s use and quiet enjoyment of such Designated Plant pursuant to Section 6.13 of this Agreement, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of then following any such direct or indirect partners or affiliates, or the directors, officers or shareholders of any of the foregoing, be subject to satisfaction of any liabilities or obligations of Seller under this Agreement or in any closing document delivered cure by Seller at Closing and in no event shall Seller be liable for, nor shall Purchaser seekSellers, any consequential, indirect or punitive damages from Seller.Losses arising out of a breach

Limitations on Seller Indemnification. Notwithstanding the foregoing provisions of foregoing, but subject to Section 12.16.6(a), (ai) Seller no Buyer Indemnified Party shall not be required entitled to indemnify Purchaser or indemnification pursuant to Section 8.2(a)(i) for any Purchaser-Related Entities under this Agreement Losses unless and until the aggregate amount of all amounts Losses for which an indemnity would otherwise be payable by all Buyer Indemnified Parties are entitled to indemnification pursuant to Section 8.2(a)(i) exceeds $925,000 (the “Seller under Section 12.1 above exceeds the Basket Limitation andThreshold Amount”), in such event, Seller at which time Buyer Indemnified Parties shall be responsible entitled to indemnification for such Losses sustained by such Buyer Indemnified Parties that exceed the entire amount including all amounts representing the Basket Limitation, Seller Threshold Amount; (bii) in no event shall the liability aggregate amount of Losses sustained by the Buyer Indemnified Parties be entitled to indemnification pursuant to Section 8.2(a)(i) exceed $20,000,000 (the “Seller with respect to the indemnification provided for in Section 12.1 above exceed in the aggregate the Cap Limitation, Indemnification Cap”); and (ciii) if prior to the Closing, Purchaser obtains knowledge (and for purposes hereof, such knowledge Seller shall include any information contained in the Due Diligence Material) of any inaccuracy or breach of any representation, warranty or covenant of Seller contained in this Agreement (a “Purchaser-Waived Breach”) and nonetheless proceeds with and consummates the Closing, then Purchaser and any Purchaser-Related Entities shall not be deemed to have waived and forever renounced any right to assert a claim for indemnification liable under this Article 12 for8 for any special, or any other claim or cause of action under this Agreementindirect, at law or incidental, consequential (in equity on account of any such Purchaser-Waived Breacheach case, and (d) notwithstanding anything herein to the contraryextent not reasonably foreseeable), punitive or aggravated damages or damages for lost profits on the investment represented by the transactions contemplated hereby or lost prospective business opportunities. Notwithstanding this Section 8.2(e), the Basket Limitation Seller Threshold Amount and the Seller Indemnification Cap Limitation shall not apply to any Losses arising out of, resulting from, relating to, incurred in connection with respect or incident to Losses suffered or incurred as a result any breach of breaches of any covenant or agreement of Seller the representations and warranties set forth in Section 5.34.1 (Organization and Qualification), Section 5.44.2 (Authorization), Section 11.104.3(a) and 4.3(b) (No Conflict), 4.14(a) (Title to Purchased Assets), 4.15 (Questionable Payments), 4.21 (Tax Matters), 4.27 (Brokers), 4.31 (Anti-Corruption Matters) or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms of this Agreement. Notwithstanding anything contained in this Agreement or in any closing document to the contrary, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of any such direct or indirect partners or affiliates, or the directors, officers or shareholders of any of the foregoing, be subject to satisfaction of any liabilities or obligations of Seller under this Agreement or in any closing document delivered by Seller at Closing and in no event shall Seller be liable for, nor shall Purchaser seek, any consequential, indirect or punitive damages from Sellerclaim involving Fraud.

Limitations on Seller Indemnification. Notwithstanding any other provision hereof or of any applicable law, the foregoing provisions of Section 12.1, (a) Seller Buyer Indemnitees shall not be required entitled to indemnify Purchaser or any Purchaser-Related Entities under this Agreement unless the aggregate make a claim as a result of all amounts for which an indemnity would otherwise be payable by Seller under Section 12.1 above exceeds the Basket Limitation and, in such event, Seller shall be responsible for the entire amount including all amounts representing the Basket Limitation, (b) in no event shall the liability of Seller with respect to the indemnification provided for in Section 12.1 above exceed in the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser obtains knowledge (and for purposes hereof, such knowledge shall include any information contained in the Due Diligence Material) of any inaccuracy or a breach of any representation, warranty or covenant which survives the Closing pursuant to Section 5 hereof against Seller unless such claim, together with all other claims of Seller contained in this the Buyer Indemnitees under Section 18.2.1 hereunder and under the equivalent provisions of the St. Xxxxxx Agreement and the Xxxx Xxxxx Casino Agreement (a “Purchaser-Waived Breach”each as defined in Section 36), exceed in the aggregate $200,000 (in which case only the excess over $200,000 of such Claims will be paid); provided, however, that (i) and nonetheless proceeds such $200,000 minimum threshold with and consummates the Closing, then Purchaser and respect to indemnifiable Damages shall not apply to any Purchaser-Related Entities shall be deemed to have waived and forever renounced any right to assert a claim for indemnification made by Buyer under this Article 12 for, or any other claim or cause of action under this Agreement, at law or in equity on account of any such Purchaser-Waived Breach, and (d) notwithstanding anything herein to the contrary, the Basket Limitation and the Cap Limitation shall not apply Agreement with respect to Losses suffered (w) the breach or incurred as a result of breaches of any covenant or agreement of Seller set forth in Section 5.3, Section 5.4, Section 11.10, or Section 10.1 of this Agreement or to any Pursuit Costs that may be due Purchaser pursuant to this express terms of this Agreement. Notwithstanding anything contained in this Agreement or in any closing document to the contrary, in no event shall the properties or assets of the direct or indirect partners of Seller, or of the affiliate partnerships or corporations or successors or assigns of any such direct or indirect partners or affiliates, or the directors, officers or shareholders inaccuracy of any of the foregoingrepresentations or warranties contained in Section 5.1 (Organization, be subject Standing and Authority), Section 5.3 (Title), or Section 5.4 (Litigation), (x) the gross negligence, willful misconduct or fraud of Seller, (y) any Excluded Obligation, or (z) Seller’s indemnification obligation pursuant to satisfaction Section 18.2.2, (the items described in the immediately preceding clauses (w), (x), (y) and (z), collectively, the “Seller Retained Liabilities”), and (ii) except with respect to an indemnification obligation in respect of a Seller Retained Liability, Seller’s indemnification obligations for Damages under Section 18.2.1 of this Agreement (including, without limitation, indemnification obligations with respect to environmental claims under Section 5.11) shall not exceed, together with Seller’s equivalent indemnification obligations under the St. Xxxxxx Agreement and the Xxxx Xxxxx Casino Agreement, in the aggregate $14,375,000. The amount of any liabilities or obligations indemnifiable Damages under Section 18.2.1 shall be reduced by any insurance proceeds actually received with respect thereto (it being understood that after the satisfaction in full of indemnifiable Damages hereunder, the Buyer Indemnitees shall assign to Seller under this Agreement or in any closing document delivered by Seller at Closing and in no event shall Seller be liable forall of its rights to unpaid insurance proceeds with respect to insurance coverage, nor shall Purchaser seek, any consequential, indirect or punitive damages from Sellerbut only to the extent applicable to such Damages).