Other Limitations on Indemnification. (a) No Party shall have any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c). (b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit. (c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived. (d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Samples: Purchase and Sale Agreement (Penn Virginia Corp), Limited Liability Company Unit Purchase and Sale Agreement (American Midstream Partners, LP)
Other Limitations on Indemnification. Notwithstanding anything contained in Section 9.1, the indemnification obligations of Acquiror and Seller are subject to the following additional limitations:
(a) No Party shall have any liability pursuant to Section 7.2(aexcept (i) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer extent awarded to a Third Party (that is not an Acquiror Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), Person or an Affiliate of an Acquiror Indemnified Person) in a Third Party Claim for which case the Buyer an Acquiror Indemnified Parties shall be Person otherwise is entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above under this Article IX or (ii) Buyer’s obligations in the case of Losses for indirect, incidental or consequential damages that are the probable and reasonably foreseeable consequence of the events, actions or circumstances giving rise to Sellers pursuant to such claims and are not based on any special circumstances of the Acquiror Indemnified Persons, Seller shall not have any liability for Losses under this Article IX for any indirect, incidental, consequential, special or punitive damages, including loss of future revenue, income or profits, diminution in the value of any member of the Company Group, any of its Subsidiaries or the Equity Interests, or damages arising from changes in or interpretations of any Law, GAAP or SAP occurring after the date of this Agreement, and no Losses related thereto shall be aggregated for purposes of Section 7.3(b9.2(b) or Section 7.3(c9.2(c).;
(b) The aggregate liability the obligation of Acquiror and Seller to indemnify the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, for Losses under this Article IX shall be reduced (A) by the amount actually received by the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, pursuant to any indemnification by, or any indemnification or other agreement with, any Third Party with respect to such Losses or the underlying reasons therefor and (B) by the amount of insurance proceeds actually received by the Acquiror Indemnified Persons or the Seller Indemnified Persons from any Third Party, including insurers, with respect to such Losses or the underlying reasons therefor; provided, that the amount deemed to be recovered under any insurance policy shall be net of (i) the deductible for such policies and (ii) any increase in premium for such policies arising out of or in connection with such Loss; provided, further, that (x) no right of subrogation shall accrue or inure to the benefit of any Party source of any amounts described in this Section 9.2(b) and neither party shall, and shall cause the other Acquiror Indemnified Persons or Seller Indemnified Persons, as applicable, to not, take any action to provide that a right of subrogation shall accrue or inure to the benefit of any source of any amounts described in this Section 9.2(b), (y) the Acquiror Indemnified Persons or the Seller Indemnified Persons, as applicable, shall use commercially reasonable efforts to collect amounts from the sources described in clause (A) and from insurance policies of the Company Group and any of its Subsidiaries in effect as of the date of this Agreement and the New Tail Policies (provided, that, the premium for the New Tail Policies shall have been paid in full prior to the Closing Date or shall be treated as Transaction Expenses) and (z) if Seller pays to any Acquiror Indemnified Person (including through a disbursement from the Indemnification Escrow Fund) or if Acquiror pays to any Seller Indemnified Person an amount in respect of Losses and the such Persons thereafter receive from a third party a sum that is related to the matter giving rise to such Losses, then Acquiror or Seller, as applicable, shall promptly tender to the other party an amount equal to the lesser of such sum and the amount that such party paid in respect of such Losses; provided, that, notwithstanding the foregoing, the obligations set forth in this Section 9.2(b) shall in no way modify or amend the obligation of the Seller to make indemnification payments pursuant to Section 9.5 when due and any amounts subsequently received by Acquiror pursuant to this Article 7 Section 9.2(b) shall be reimbursed;
(c) The indemnification obligations of Seller under Section 9.1(a)(i) and of Acquiror under Section 9.1(b)(i) for any breach or inaccuracy of the representations and warranties in no event exceed, individually this Agreement (whether set forth in this Agreement or in any certificate delivered in connection herewith) shall survive the aggregateClosing until the eighteenth month anniversary of the Closing Date; provided, $15,000,000that (i) the indemnification obligations of Seller under Section 9.1(a)(i) and of Acquiror under Section 9.1(b)(i) for any breach or inaccuracy of the Fundamental Representations shall survive until the four year anniversary of the Closing Date and (ii) the indemnification obligations of Seller under Section 9.1(a)(i) for any breach or inaccuracy of the representations and warranties set forth in Section 3.11 (Tax Matters) shall survive until the forty-eight (48) month anniversary of the Closing; provided, further, that each party shall preserve its right to pursue a claim under Sections 9.1(a)(i) and 9.1(b)(i) with respect to a particular breach if, prior to the expiration of the applicable period, Acquiror or Seller, as applicable, delivers a notice that constitutes an Indemnification Notice, but only with respect to the content of, and on the basis set forth in, such Indemnification Notice; and
(d) All covenants or agreements of the parties set forth in Article VI shall survive the Closing until the eighteenth month anniversary of the Closing Date and all other covenants and agreements of the parties shall survive the Closing until performed; provided, however, that subject each party shall preserve its right to Section 7.5(c) belowpursue a claim under Sections 9.1(a)(ii), (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing9.1(a)(iii), 9.1(b)(ii) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a9.1(b)(iii) with respect to a particular breach or default of any Fundamental Representation and Section 7.2(b) such covenant or agreement set forth in Article VI if, prior to the date that is the eighteen month anniversary of the Closing Date, Acquiror or Seller, as applicable, delivers a notice that constitutes an Indemnification Notice, but only with respect to any covenantthe content of, shalland on the basis set forth in, in each case, be without limitsuch Indemnification Notice.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Samples: Transaction Agreement (Wellcare Health Plans, Inc.)
Other Limitations on Indemnification. (a) No Party shall have any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages Notwithstanding anything to the contrary contained in this Agreement, no Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties Person shall be entitled to indemnification only under Article V or IX for any Losses to the extent that such Losses (a) relate to any action taken by the Buyer or any of its Affiliates or representatives in breach of this Agreement or (b) are reflected as a liability of the excess over Business on the Indemnification ThresholdFinal Statement. There Notwithstanding anything to the contrary contained in this Agreement, no Seller Parent Indemnified Person shall be no threshold entitled to indemnification under Article V or deductible with respect IX for any Losses to the extent that such Losses (ia) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect relate to any action taken by Seller Parent or any of its Affiliates or representatives in breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)this Agreement.
(b) The aggregate liability Buyer shall (or shall cause the named insured under the R&W Policy to), on behalf of the applicable Buyer Indemnified Person(s), first seek recovery for any Party portion of Losses that would otherwise constitute indemnifiable Losses pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, IX and that are subject to Section 7.5(ccoverage under R&W Policy (“Covered Losses”). With respect to indemnifiable Losses arising under Sections 9.1(a)(i), 9.1(a)(iii), 9.1(a)(iv) belowor 9.7, (aSeller Parent shall have no obligation to indemnify any Buyer Indemnified Person for those Covered Losses that are actually recovered by the applicable Buyer Indemnified Person(s) Buyer’s liability from the R&W Policy, and any claim for indemnity pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(aSections 9.1(a)(i) with respect to any Fundamental Representation Covered Losses shall be held in abeyance pending the full and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages final resolution of any nature (including lost profits); providedapplicable claim under the R&W Policy. Except as set forth in the immediately preceding sentence, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity Buyer Indemnified Person(s) shall be entitled to pursue all rights and remedies available to them under this Agreement shall not be waived.
concurrently with seeking recovery under the R&W Policy, subject to the obligations of Buyer Indemnified Persons pursuant to all other provisions of this Article IX (d) The Parties will make appropriate adjustments for expressly including, without limitation, the obligation to refund any insurance proceeds actually subsequently received by pursuant to Section 9.4(a)). Notwithstanding anything to the Indemnified Party contrary in determining Damages for purposes this Agreement, if the R&W Policy is not procured and issued in accordance with Section 5.23 of this Article 7. All indemnification payments under Agreement, then this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement Section 9.9(b) shall not apply and shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementno force and effect.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Other Limitations on Indemnification. (a) No Party Seller shall not have any liability to the Buyer Indemnified Parties pursuant to Section 7.2(a8.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty set forth in Section 4.1 (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. Buyer shall not have any liability to the Seller Indemnified Parties pursuant to Section 8.3(a) with respect to any breach of any representation or warranty set forth in Section 4.2 (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Seller Indemnified Parties exceeds the Indemnification Threshold, in which case the Seller Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ Seller’s obligations to Buyer pursuant to Section 7.2(a8.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(bSections 8.2(b) above or 8.2(c) or (ii) Buyer’s obligations to Sellers Seller pursuant to Section 7.3(b8.3(a) with respect to any breach of any Fundamental Representation pursuant to Sections 8.3(b) or Section 7.3(c8.3(c).
(b) The aggregate liability of any Party Seller pursuant to this Article 7 8 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject 10,000,000. Subject to Section 7.5(c) below8.5(c), (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, 8.3 shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any the other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party Third Party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 78. All indemnification payments under this Article 7 8 will be deemed to be adjustments to the amounts paid to Sellers Seller pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 78, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
(f) For purposes of the indemnifications given under this Sections 8.2(a) and 8.3(a) for breaches of the representations and warranties made by Seller and Buyer in Article 4, such representations and warranties qualified by materiality or Material Adverse Effect shall be deemed to have been made without the materiality or Material Adverse Effect qualifications and shall be true and correct in all respects.
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Other Limitations on Indemnification. (a) No Party Sellers shall not have any liability to the Buyer Indemnified Parties pursuant to Section 7.2(a8.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty set forth in Section 4.1 (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ Sellers obligations to Buyer pursuant to Section 7.2(a8.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b8.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)8.3.
(b) The Except as to any Retained Liability and except as to any Damages incurred by Buyer on account of a breach of Section 4.1(f), the aggregate liability of any Party Sellers pursuant to this Article 7 8 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject 6,100,000. Subject to Section 7.5(c) below8.5(c), (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, 8.3 shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any the other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party Third Party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 78. All indemnification payments under this Article 7 8 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 78, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Other Limitations on Indemnification. (a) No Party Seller shall not have any liability to the Buyer Indemnified Parties pursuant to Section 7.2(a8.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty set forth in Section 4.1 (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ Seller’s obligations to Buyer pursuant to Section 7.2(a8.2(a) above with respect to any breach of any Fundamental Representation Representation, Section 4.1(s), Section 6.4 or pursuant to Section 7.2(bany of Sections 8.2(b) above through 8.2(g) (inclusive) or (ii) Buyer’s obligations to Sellers Seller pursuant to Section 7.3(b) or Section 7.3(c)8.3.
(b) The aggregate liability of any Party Seller pursuant to this Article 7 8 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject . Subject to Section 7.5(c) below8.5(c), (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, 8.3 shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any the other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party Third Party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 78. All indemnification payments under this Article 7 8 will be deemed to be adjustments to the amounts paid to Sellers Seller pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) For purposes of the indemnifications given under Section 8.2(a) for breaches of the representations and warranties made by Seller in Section 4.1, such representations and warranties qualified by materiality or Material Adverse Effect shall be deemed to have been made without the materiality or Material Adverse Effect qualifications and shall be true and correct in all respects.
(f) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 78, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Other Limitations on Indemnification. (a) No Party shall have In all cases in determining whether there has been a breach of a representation, warranty or covenant by the Company, the Purchaser or the Seller for purposes of this Article XII, or in determining the amount of any liability pursuant to Section 7.2(a) or Section 7.3(a) above Losses with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless such breach, such representations, warranties and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties covenants shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect read without regard to any breach of materiality qualifier (including any Fundamental Representation or pursuant reference to Section 7.2(bMaterial Adverse Effect) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)contained therein.
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above Except with respect to any covenant (including Buyer’s liability to fund fraud, the Purchase Price at Purchaser acknowledges and agrees that, from and after the Closing) , the indemnification provisions of this Article XII are the Purchaser’s sole and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) exclusive remedy against the Seller for any claim with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages the breach of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreementagreement hereunder.
(c) The amount of any Loss subject to indemnification under Section 12.02 or 12.03 shall be calculated net of (i) any Tax Benefit realized by the Indemnitee or its Affiliates on account of such Loss, but only to the extent such Tax Benefit is realized on or prior to the date on which the indemnification payment is made on account of such Loss, and (ii) any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnitee from any third party with respect thereto, net of any retropremiums and costs of recovery, if any. The Indemnitee shall take all commercially reasonable actions to seek full and prompt recovery under all insurance policies and any other rights, remedies or agreements covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnitor.
(d) Each of the Purchaser and the Seller acknowledges that a failure to mitigate any Losses may result in a lesser recovery pursuant to Delaware common law in a breach of contract action.
(e) Each Indemnified Party seeking No Purchaser Indemnitee shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one Loss or related group of Losses.
(f) All amounts owed to any Purchaser Indemnitee in respect of Losses indemnifiable pursuant to Section 12.02 which are satisfied out of the Indemnity Escrow Funds shall be distributed in a ratio of cash to Class A Common Stock (valued based on the 30-day volume-weighted average price per share as of the day prior to the date of determination) equal to the Indemnity Escrow Funding Ratio, and all amounts owed to any Purchaser Indemnitee in respect of Losses indemnifiable pursuant to Section 12.02 which are satisfied out of the Tax Indemnity Escrow Funds shall be distributed in a ratio of cash to Class A Common Stock (valued based on the 30-day volume-weighted average price per share as of the day prior to the date of determination) equal to the Tax Indemnity Escrow Funding Ratio. For the avoidance of doubt, in the event that (i) all cash amounts in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, have been released from the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, the Purchaser Indemnitees’ sole and exclusive source of recovery against the Seller for indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs solely with respect to breaches of the Company Indemnity Fundamental Reps) shall be against the Class A Common Stock in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, and expenses(ii) incurred all Class A Common Stock in connection therewith the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, have been released from the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, the Purchaser Indemnitees’ sole and exclusive source of recovery against the Seller for indemnification (other than solely with respect to breaches of the Company Indemnity Fundamental Reps) shall constitute Damagesbe against the cash in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable, and in no event shall the Seller have any liability for any amounts due pursuant to Section 12.02 (other than solely with respect to breaches of the Company Indemnity Fundamental Reps) except to the extent of amounts available in the Indemnity Escrow Account or the Tax Indemnity Escrow Account, as applicable.
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Other Limitations on Indemnification. (a) No amounts of indemnity shall be payable, nor shall any Indemnifying Party shall have or any liability pursuant of its Affiliates be obligated to Section 7.2(a) or Section 7.3(a) above with respect respond to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages claim for indemnity, for Losses to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”)extent, in which case the Buyer Indemnified Parties shall be entitled to indemnification but only to the extent extent, that such Losses arise from any action taken by an Indemnified Party or any of its Affiliates after the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000Closing; provided, however, that subject the foregoing limitations shall not apply in respect of any Losses of any party arising from any action taken by any other party or any of its Affiliates after the Closing in respect of the Escrowed Assets. Each Indemnifying Party shall take, and shall cause to be taken by each of its Affiliates, all reasonable efforts to mitigate any Loss upon and after becoming aware of any event which could reasonably be expected to give rise to a claim for indemnification under this Agreement.
(b) If Purchaser sells, assigns or transfers any of its right, title or interest in, to or under any Purchased Asset to a third party, neither Purchaser nor any other Purchaser Indemnified Party shall assert against Sellers, AIG or its Affiliates, as applicable, for purposes of indemnification under Section 7.5(c) below7.2, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c5.1(e), Sections 6.4(b) and (bd) Seller’s liability pursuant to Section 7.2(ahereof, that it shall have suffered any Loss by virtue of such sale, assignment or transfer, and any such claim for indemnification (whether such claim shall then be pending or shall be only prospective) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, shall be without limitbarred forever.
(c) Under no circumstances shall (c) If Purchaser waives, amends, modifies or otherwise changes the terms of any Party be liable Loan Document after the Closing (or consents to any such waiver, amendment, modification or other Party for any indirect, contingent, consequential, unforeseen, exemplary change or punitive, special Damages of any nature (including lost profits); provided, however, that directs AIG to cause Sellers to make any such Damages recovered by waiver, amendment, modification or other change to any third party Loan Document included in the Escrowed Assets) or changes or modifies the Transferred System Intellectual Property, as the case may be, neither Purchaser nor any other Purchaser Indemnified Party shall have or assert at any time any claim (whether such claim shall then be pending or shall be only prospective) against any Seller, AIG or any of its Affiliates, as applicable, for which a Party owes another Party an indemnity purposes of indemnification under this Agreement shall not be waived.
Section 7.2, Section 5.1(e) or Sections 6.4(b) and (d) The Parties will make appropriate adjustments for hereof, that it shall have suffered any insurance proceeds actually received by Loss resulting from or arising out of such waiver, amendment, modification or other change to such Loan Document or the Transferred System Intellectual Property. For the avoidance of doubt, nothing in this Section 7.4(c) shall limit in any manner (i) the ability of Purchaser to provide additional funding with respect to any Loan or (ii) the ability of any Purchaser Indemnified Party to have or assert any claim, in determining Damages for purposes of accordance with this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to VII, against any Seller or AIG for Losses caused by any breach or inaccuracy of any representation or warranty made by AIG on behalf of Sellers pursuant to Article 2. Any liability for indemnification under or AIG in this Agreement shall be determined without duplication or any breach or failure by AIG to perform or to cause Sellers to perform any of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant their respective covenants or agreementobligations contained in this Agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Other Limitations on Indemnification. (a) No In the event that any Indemnified Party shall have any liability pursuant makes a Claim which is finally determined to Section 7.2(a) be without reasonable basis in law or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless fact, such Indemnified Party will bear and until promptly reimburse the aggregate amount of Indemnifying Party for all of expenses and losses in investigating and defending against the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)Claim.
(b) The aggregate liability indemnification obligations of the Indemnifying Party hereunder shall be limited to the obligation to make the Indemnified Party whole on a dollar for dollar basis for assets lost or diminished, liabilities increased or expenses and costs actually incurred, and under no circumstances shall the Indemnifying Party be liable for claims by the Indemnified Parties that as a consequence of a breach in question any Indemnified Party pursuant has incurred, for its own account, consequential, enhanced, punitive, special or exemplary damages (it being understood that the Indemnifying Party shall be liable for consequential, enhanced, punitive, special or exemplary damages payable by any Indemnified Party to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limitanother party).
(c) Under no circumstances shall The amount of any Party be liable to any other Party Indemnifying Party’s liability under the Agreement for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of shall be determined taking into account any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any applicable insurance proceeds actually or proceeds from applicable “pass-through” warranty coverage received or reasonably expected to be received by the Indemnified Party in determining Damages for purposes respect of this Article 7such Damages. All indemnification payments under this Article 7 will IX shall be deemed to be adjustments to the amounts paid Purchase Price.
(d) Notwithstanding any provision hereof to Sellers the contrary, no Claim may be asserted for the breach of any representation or warranty contained in this Agreement after the Termination Date; provided, that this Section 9.5(d) shall not limit the ability of any Indemnified Party to recover for any Claim relating to the breach of any such representation or warranty asserted prior to the Termination Date and provided further that this Section 9.5(d) shall not be a limitation on the time when a Claim covered by both clause (i) of Section 9.2(a) and another clause of Section 9.2(a) or by both clause (i) of 9.2(b) or another clause of 9.2(b), as the case may be, may be asserted. In addition, any Claim made by any party following the Closing pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise made pursuant to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute DamagesIX.
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Other Limitations on Indemnification. (a) No Party Any indemnification obligations of Bioceres and Parent hereunder shall have first be applied against the Escrow Shares and then against any liability pursuant to Section 7.2(a) other Escrow Property. Any Escrow Shares or Section 7.3(a) above with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties Union Ordinary Share received by Union as an indemnification payment shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)promptly cancelled by Union.
(b) The aggregate liability Liability of any Party pursuant Bioceres and Parent to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(cUnion Indemnified Parties (i) below, (a) Buyer’s liability for Losses pursuant to Section 7.3(b9.2(i) above with respect to any covenant shall not exceed twenty million U.S. Dollars (including Buyer’s liability to fund $20,000,000) (the Purchase Price at the Closing) and Section 7.3(c“General Liability Cap”) and (bii) Seller’s liability for Losses pursuant to Section 7.2(a9.2(iv) with respect to any Fundamental Representation and Section 7.2(bshall not exceed twenty-three million U.S. Dollars ($23,000,000), provided that the Rizobacter Call Option is exercised, or seventeen million three-hundred thousand U.S. Dollars ($17,300,000) with respect to any covenant, shall, in the event the Rizobacter Call Option is not exercised (in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profitsthe “Rizobacter Injunction Cap”); provided, however, that the General Liability Cap shall not apply to Losses of the Union Indemnified Parties arising directly or indirectly from or in connection with (A) any such Damages recovered by breach or inaccuracy of any third party for which a Party owes another Party an indemnity under Bioceres Fundamental Representation, (B) any breach or non-fulfillment of any covenant contained in this Agreement and (C) Sections 9.2(iii) and (v), or (d) fraud, provided, further, however, that the aggregate Liability of Bioceres and Parent to the Union Indemnified Parties for Losses pursuant to subclauses (A) and (B) of the foregoing proviso shall not exceed the value of the Exchange Shares at Closing. For the avoidance of doubt, Losses pursuant to Section 9.2(iv) shall not be waivedapplied towards the General Liability Cap, which is reserved solely for Losses pursuant to Section 9.2(i).
(dc) The Parties will make appropriate adjustments for Notwithstanding anything to the contrary contained herein, upon any Indemnified Party becoming aware of any Indemnification Claim, such Indemnified Party shall utilize all reasonable efforts, consistent with normal practices and policies and good commercial practice, to mitigate such Losses. For purposes of this ARTICLE 9, all Losses shall be computed net of (i) any insurance proceeds actually received received, (ii) any amounts recovered by the Indemnified Party or any of its respective Affiliates from any Person with respect to such Losses (whether under any agreement for indemnification, contribution or otherwise) and (iii) the amount of any actual reduction in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments Taxes payable, in each case, by the Indemnified Party (as applicable, or any Affiliate thereof) that is attributable to the amounts paid Losses to Sellers pursuant which such claim relates, and with respect to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication clause (iii) in the taxable period in which such Losses are incurred, treating any item of recovery loss, deduction or credit as a result of such Losses as the last item used in such period, and taking into account any Tax detriment suffered by reason the Indemnified Party as a result of such Losses and the receipt of the state related indemnity payment (in the case of facts giving rise to clauses (i), (ii) and (iii), net of the cost and expense of obtaining any such liability constituting a breach of more than one representationbenefits, warrantyproceeds, covenant payments or agreement.
(e) Each reimbursements). The Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate pursue, and to cause their respective Affiliates to pursue, all insurance claims, other third party payments and Tax benefits to which it or they may be entitled in connection with any Damages that Losses incurred. If any Indemnified Party actually receives any insurance or other Third Party payment in connection with any claim for Losses for which it asserts has already received a payment under this Article 7ARTICLE 9, but it shall pay to the Indemnitor within thirty (30) days after such payment is received, an amount equal to the excess of (x) the amount previously received by such Indemnified Party with respect to such claim plus the amount of such insurance or other Third Party payment, less the costs of collection and, if insurance proceeds are received, any reasonable costs and expenses increase in premiums directly caused by the receipt of such insurance proceeds, over (other than internal costs and expensesy) incurred the amount of Losses to which the Indemnitor has become entitled under this Agreement in connection therewith with such claim.
(d) Notwithstanding anything in this Agreement to the contrary, for the purpose of calculating the amount of any Losses incurred as a result of any breach or inaccuracy of the representations and warranties contained in this Agreement, any qualification with respect to materiality or Bioceres Material Adverse Effect or other similar qualification shall constitute Damagesbe deemed made or given without such qualification and without giving effect to such words; provided that the foregoing disapplication of qualifiers shall not apply to qualifiers that define the scope of any scheduling or listing requirements of any representation or warranty made by Bioceres in this Agreement. For the avoidance of doubt, the materiality scrape in the foregoing sentence shall not apply for purposes of determining whether there has a been a breach of any representation or warranty under this Agreement.
(e) Notwithstanding anything else to the contrary set forth herein, the right to indemnification, payment of Losses or any other remedy based on representations, warranties or covenants will not be affected by any investigation conducted with respect to or any knowledge acquired (or capable of being acquired) at any time with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty or covenant.
(f) IN NO EVENT WILL BIOCERES BE LIABLE FOR PUNITIVE DAMAGES EXCEPT TO THE EXTENT PAID TO A THIRD PARTY.
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Other Limitations on Indemnification. (ai) No Party shall have IN NO EVENT SHALL SELLER GROUP BE LIABLE TO THE BUYER INDEMNIFIED PARTIES FOR PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES AND IN NO EVENT SHALL BUYER GROUP BE LIABLE TO THE SELLER INDEMNIFIED PARTIES FOR PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES, PROVIDED, THAT THESE LIMITATIONS SHALL NOT APPLY TO (I) PUNITIVE, SPECIAL EXEMPLARY DAMAGES AND CONSEQUENTIAL PAYABLE TO A THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM OR (II) CONSEQUENTIAL DAMAGES DIRECTLY RESULTING FROM A SPECIFIC BREACH OF A PARTY'S REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER.
(ii) Anything in this Agreement to the contrary notwithstanding, no claim may be asserted nor any liability pursuant to Section 7.2(a) or Section 7.3(a) above with respect to any action commenced against Seller Group for breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c).
(b) The aggregate liability of any Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking agreement contained herein, unless written notice of such claim or action is received by Seller, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in this Agreement irrespective of whether the subject matter of such claim or action shall have occurred before or after such date. Indemnification shall continue hereunder with respect to any matter of which a party has notified the other parties in accordance with the requirements of this Section 7.2 ----------- on or prior to the date such indemnification hereunder would otherwise terminate in accordance with this Section 7.2(a), as to which the obligation of such -------------- other party shall use commercially reasonable efforts continue until the liability of such party shall have been determined pursuant to mitigate any Damages that it asserts under this Article 7VII, but any reasonable costs and expenses (other than internal costs and expenses) incurred the Indemnitor shall have reimbursed all indemnified parties for the full amount of such Indemnifiable Damages in connection therewith shall constitute Damages.accordance with this Article VII. -----------
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Other Limitations on Indemnification. Portions of the exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(a) No For purposes of computing the amount of any Losses incurred by any Indemnified Party under this Article VII for which such Indemnified Party would otherwise be entitled to receive indemnification payments under this Article VII, there shall be deducted an amount equal to any cash payments actually recovered by such Indemnified Party under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or Contract pursuant to which or under which such Indemnified Party is a party or has rights; provided that in the event any amounts recovered under insurance policies or other collateral sources are not received before any claim for indemnification is paid under this Article VII, the Indemnifying Party shall pay the full amount of the applicable Losses, and the Indemnified Party shall have the right, but not the obligation, to pursue recovery for all amounts paid in indemnification under such insurance policies; provided, further, that nothing herein shall (i) apply to any liability pursuant self-insurance or (ii) be deemed to Section 7.2(a) obligate any Indemnified Party or Section 7.3(a) above any of its Affiliates to maintain any insurance policies after the Closing Date or assert any claim, seek any recovery or take any other action against any insurance carriers or other Third Parties with respect to any breach of any representation or warranty (other than any Fundamental Representation) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any breach of any Fundamental Representation or pursuant to Section 7.2(b) above or (ii) Buyer’s obligations to Sellers pursuant to Section 7.3(b) or Section 7.3(c)such claim.
(b) The aggregate liability of any Each Party pursuant to this Article 7 shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each caseand shall cause its respective Affiliates to, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid to Sellers pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages Loss indemnifiable hereunder to the extent required by applicable Law upon and after becoming aware of any event that it asserts under would reasonably be expected to give rise to any Loss.
(c) No Indemnified Party shall be entitled to be indemnified pursuant to this Article 7VII for any Loss that constitutes punitive or exemplary damages, but any reasonable costs and expenses (other than internal costs and expenses) incurred except to the extent actually paid to a Third Party as a result of a final, non-appealable determination in connection therewith shall constitute Damagesrespect of the applicable Third Party Claim.
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Other Limitations on Indemnification. (a) No Party Except with respect to Damages claimed by the Purchaser under Section 12.16 (Risk of Damage): (i) the Parties shall have any liability pursuant no right to Section 7.2(a) or Section 7.3(a) above indemnification with respect to any loss of profits or any consequential, indirect, special or punitive damages (provided, however, and for greater certainty, that such limitation does not apply to an award to a third party based on a Third Party Claim or in the event of actual fraud, intentional misrepresentation or willful breach by either Party); (ii) the Parties shall have no right to indemnification with respect to any losses to the extent that they are included in the calculation of any adjustment to the Purchase Price pursuant to Section 2.6 and (iii) MFI shall have no liability under this Agreement with respect to any matter to the extent that the expense, loss or liability comprising the Damages arising from such matter has been provided for in the Financial Statements or taken into account in calculating the Adjustment Amount.
(b) The amount which the Indemnifying Party is required to pay to, for, or on behalf of the Indemnified Party pursuant to this Article 9 shall be reduced by any Tax benefit applicable thereto actually recognized by the Indemnified Party.
(c) The Indemnified Party shall have an obligation to promptly seek to recover or make a claim for insurance proceeds or other similar amounts as a result of any matter giving rise to an indemnification claim of the Indemnified Party against the Indemnifying Party. If the Indemnified Party receives any insurance proceeds or other similar amounts as a result of the matter giving rise to any indemnification claim of the Indemnified Party prior to the date upon which the Indemnifying Party is given Notice of the claim, the Indemnifying Party’s indemnification obligation with respect to such claim shall be net of the amount of any such insurance proceeds or other similar amounts actually received by the Indemnified Party (minus the amount of any retroactive increases in premiums with respect to such insurance resulting from such claim). If the Indemnified Party receives any insurance proceeds or other similar amounts as a result of the matter giving rise to any indemnification claim of the Indemnified Party against the Indemnifying Party after the Indemnifying Party has paid such indemnification claim to the Indemnified Party, then the Indemnified Party shall promptly turn over any such insurance proceeds or other similar amounts received to the Indemnifying Party to the extent of the payments made by the Indemnifying Party to the Indemnified Party with respect to the claim (minus the amount of any retroactive increases in premiums with respect to such insurance resulting from such claim).
(d) Except in the event of actual fraud, intentional misrepresentation or willful breach by MFI and except pursuant to the other agreements attached as exhibits hereto, the sole recourse and exclusive remedy of the Parties and their respective Indemnified Parties from and after the Closing arising out of this Agreement or otherwise arising out of the Purchaser’s acquisition of the Business, whether based on tort, contract, statutory or common law remedy or equitable remedy or otherwise, including but not limited to, any misrepresentation, breach of warranty or otherwise, shall be to assert a claim for indemnification under the indemnification provisions of this Article 9, and the Purchaser and MFI each covenant that it (and the Purchaser’s Indemnified Parties and MFI’s Indemnified Parties) will not seek to obtain any remedy except as provided in this Article 9.
(e) An Indemnified Party shall take commercially reasonable steps to mitigate any Losses and shall respond to a claim or liability that may provide a basis for indemnification in the same manner (but in any event in a reasonable manner) it would respond in the absence of the indemnification provided in this Agreement. In the event that the Indemnified Party fails to make reasonable efforts to mitigate any losses, or resolve any claim or liability, the Indemnified Party shall not be indemnified to the extent that any Losses could reasonably be expected to have been avoided if the Indemnified Party had made such efforts.
(f) Each Party acknowledges and agrees that (a) prior to the Closing, other than in the case of actual fraud, intentional misrepresentation or willful breach by MFI, the sole and exclusive remedy of the Purchaser for any breach of any of the representations and warranties of MFI contained in Article 4 shall be, in the event that each of the conditions set forth in Article 6 has not been satisfied or waived, refusal to close the purchase and sale of the Purchased Assets hereunder; (b) following the Closing, (i) the indemnification provisions of this Article 9 shall be the sole and exclusive remedies of the Parties for any breach of the representations or warranties contained in this Agreement except in the case of fraud, intentional misrepresentation or willful breach and (ii) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or obligation contained herein shall give rise to any right on the part of either Party to rescind this Agreement or any of the transactions contemplated hereby except in the case of actual fraud, intentional misrepresentation or willful breach; and (c) following the Closing, the indemnification provisions of this Article 9 shall be the sole and exclusive monetary remedies of the Parties for any breach or non-fulfillment of any covenant (other than those covenants set forth under Section 13.1 and Section 13.2 for the enforcement of which a Party may also seek specific performance or except in the case of actual fraud, intentional misrepresentation or willful breach).
(g) MFI shall not have any indemnification obligations under Section 9.1(a) for breach of any representation or warranty (other than any Fundamental Representationcontained in Section 4.11 or under Section 9.1(e) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification only to the extent Damages arise from or relate to any sampling and analysis by or on behalf of the excess over Purchaser of any environmental media subsequent to the Indemnification Threshold. There shall be no threshold or deductible with respect to Closing, except (i) Sellers’ obligations to Buyer pursuant to Section 7.2(a) above with respect to any in the event of actual fraud, intentional misrepresentation or willful breach of any Fundamental Representation or pursuant to Section 7.2(b) above or by MFI; (ii) Buyer’s obligations to Sellers where such sampling and analysis is required pursuant to Section 7.3(bEnvironmental Laws and is not related to any post-Closing closure of a Facility; or (iii) where such sampling and analysis is necessary to complete bona fide construction, maintenance or Section 7.3(c)expansion activities.
(bh) The aggregate liability In respect of any Party pursuant Environmental Liabilities which are the subject of indemnification obligations under Section 9.1 which require cleanup or remediation (“Remediation”) MFI shall have the right, but not the obligation, to this Article 7 conduct such Remediation. Whether MFI chooses to remediate or indemnify, MFI’s obligation shall in no event exceedbe limited to Remediation to the least stringent cleanup standards, individually or including risk assessment where permitted, that are applicable to a Real Property considering its use and use classification as of the Closing. Any Remediation that is required to satisfy MFI’s indemnification obligations shall be performed in the aggregate, $15,000,000; provided, however, most cost-effective manner and may include the recording of deed restrictions or implementation of institutional or engineering controls where such deed restrictions or controls are acceptable to Governmental Authorities for the type of Hazardous Materials that are the subject to Section 7.5(c) below, (a) Buyer’s liability pursuant to Section 7.3(b) above with respect to any covenant (including Buyer’s liability to fund of the Purchase Price at the Closing) Remediation and Section 7.3(c) and (b) Seller’s liability pursuant to Section 7.2(a) with respect to any Fundamental Representation and Section 7.2(b) with respect to any covenant, shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any other Party for any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 7. All indemnification payments under this Article 7 will be deemed to be adjustments to the amounts paid landlord for Leased Real Property. Where MFI chooses to Sellers pursuant remediate, MFI shall have the right to Article 2. Any liability control the Remediation in its sole discretion, acting reasonably, and MFI and the Purchaser shall enter into an agreement addressing terms for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise access, including reasonable measures to such liability constituting a breach of more than one representationminimize disruption to Purchaser, warrantyon terms and conditions acceptable to both, covenant or agreementacting reasonably.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 7, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
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Other Limitations on Indemnification. (a) No Party Seller shall not have any liability to the Buyer Indemnified Parties pursuant to Section 7.2(a8.2(a) or Section 7.3(a) above with respect to any breach of any representation or warranty set forth in Section 4.1 (other than any Fundamental RepresentationRepresentation or any representation or warranty in Sections 4.1(o) or (p)) unless and until the aggregate amount of all of the Damages to the Buyer Indemnified Parties exceeds $2,000,000 (the “Indemnification Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification as to such breach of any representation or warranty set forth in Section 4.1 (other than any Fundamental Representation) only to the extent of the excess over the Indemnification Threshold. There shall be no threshold or deductible with respect to (i) Sellers’ Seller’s obligations to Buyer pursuant to Section 7.2(a8.2(a) above with respect to any breach of any Fundamental Representation Representation, any representation or warranty in Sections 4.1(o) or (p) or pursuant to Section 7.2(b8.2(b) above or Section 8.2(c) or (ii) Buyer’s obligations to Sellers Seller pursuant to Section 7.3(b) or Section 7.3(c)8.3.
(b) The aggregate liability of any Party Seller pursuant to this Article 7 8 (other than with respect to any breaches of any Fundamental Representations) shall in no event exceed, individually or in the aggregate, $15,000,000; provided, however, that subject . Subject to Section 7.5(c8.5(c), Seller’s liability pursuant to Section 8.2(a) belowwith respect to any breach of any Fundamental Representation shall, (a) in each case, be without limit. Subject to Section 8.5(c), Buyer’s liability pursuant to Section 7.3(b) above with respect 8.3 shall, in each case, be without limit. Notwithstanding anything herein to any covenant (including Buyer’s liability to fund the Purchase Price at the Closing) and Section 7.3(c) and (b) contrary, Seller’s liability pursuant to Section 7.2(a) with respect the special warranty of title contained in any Deed, Assignment or other assignment relating to any Fundamental Representation and Section 7.2(b) with respect to any covenant, the Purchased Assets shall, in each case, be without limit.
(c) Under no circumstances shall any Party be liable to any the other Party for for, and each Party hereby waives, any indirect, contingent, consequential, unforeseen, exemplary or punitive, special Damages of any nature (including lost profits); provided, however, that any such Damages recovered by any third party Third Party for which a Party owes another Party an indemnity under this Agreement shall not be waived.
(d) The Parties will make appropriate adjustments for any insurance proceeds actually received by the Indemnified Party in determining Damages for purposes of this Article 78. All indemnification payments under this Article 7 8 will be deemed to be adjustments to the amounts paid to Sellers Seller pursuant to Article 2. Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.
(e) Each Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to mitigate any Damages that it asserts under this Article 78, but any reasonable costs and expenses (other than internal costs and expenses) incurred in connection therewith shall constitute Damages.
(f) For purposes of the indemnifications given under Section 8(a) for breaches of the representations and warranties made by Seller in Section 4.1, each such representation and warranty will be read without regard and without giving effect to the terms “knowledge”, “Knowledge”, “material”, “material adverse effect”, “Material Adverse Effect” or similar terms (fully as if any such word or phrase were deleted from such representation and warranty).
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