Seller’s Limitations. (a) Notwithstanding anything in this Agreement to the contrary:
(i) in no event shall any of the Purchaser’s Indemnified Persons recover, or seek to recover, by claim for indemnification or otherwise, any Losses until notice thereof shall have been given by or on behalf of any of the Purchaser’s Indemnified Persons to the Seller in the manner provided in Section 8.5;
(ii) in no event shall any of the Purchaser’s Indemnified Persons recover, or seek to recover, by claim for indemnification or otherwise, any Losses until the aggregate of all Losses recoverable by the Purchaser’s Indemnified Persons exceeds $250,000, in which event the full extent of all Losses shall be recoverable by the Purchaser’s Indemnified Persons in accordance with the terms of this Agreement; and
(iii) the maximum aggregate Liability of the Seller and Xxxxxxxx for all Losses pursuant to Section 8.1(a) and Section 8.1(b) shall not exceed $2,200,000; provided, however, that such maximum aggregate Liability shall be increased by $1,800,000 with respect to any Losses that result from or arise out of any breach of any representation or warranty made in Section 2.7 hereof; and provided further that that such maximum aggregate Liability shall be increased to the Purchase Price with respect to any Losses that result from or arise out of any breach of any representation or warranty made in Section 2.5 hereof.
(b) If, and to the extent that, the Seller is required to indemnify the Purchaser’s Indemnified Persons pursuant to Section 8.1, the Seller shall be entitled to offset all or any part of any required payment against the consulting fee payments that the Purchaser is required to make to the Seller pursuant to the terms of the Brand Management Agreement. The amount that is offset shall first be applied to the final payment that the Purchaser is required to make to the Seller, i.e., the 6th year payment, and then to each successive year thereafter, i.e., next the 5th year payment, then the 4th year payment, and so on.
Seller’s Limitations. The Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $250,000 (the “Basket”), and then only to the extent such Losses exceed the Basket. The aggregate amount of all Losses for which the Sellers shall be liable pursuant to Section 8.2(a) shall not exceed $250,000 (the “Cap”); provided, that the Buyer Indemnitees shall be entitled to seek recovery for any Losses in excess of the Cap from the R&W Policy.
Seller’s Limitations. No Seller shall have any liability under Section 9.01 and no claim under Section 9.01 shall:
(a) accrue to any of Buyer's Indemnified Persons against any Seller under Section 9.01(a) unless and until the total liability of Sellers in respect of claims arising under Section 9.01(a) exceeds Two Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate; provided, however, that there shall be no minimum Loss requirement, and liability of Sellers shall arise from and after One Dollar ($1.00) of Losses, in respect of Losses resulting from any Seller's intentional misrepresentation or fraud;
(b) be made unless notice thereof shall have been given by or on behalf of any of Buyer's Indemnified Persons to Sellers in the manner provided in Section 9.05; or
(c) be recoverable by Buyer except (i) until a plan of reorganization in the Bankruptcy Cases has become effective or, if the cases are converted to Chapter 7 cases, until each such case is closed, as administrative expenses of Sellers' bankruptcy estates, (ii) against the Indemnity Deposit or the LC Deposit for claims asserted within eighteen months after the Closing Date (unless a longer period is specified in Section 9.06 with respect to a representation and warranty), and (iii) pursuant to Buyer's rights of offset and set off in Section 10.11; provided, however, that all claims for indemnification made by Buyer under this Section 9 will survive any termination or expiration described above and be recoverable from the sources described above until such claims shall have been satisfied or otherwise resolved as provided herein.
Seller’s Limitations. (i) The aggregate liability of the Sellers pursuant to Section 8.2 shall under no circumstances exceed the Purchase Price; provided, however, that such limitation shall not apply to breach or inaccuracy of any Fundamental Representation or of any representation and warranty based on Fraud by any of the Sellers.
(ii) The Sellers shall not have any liability pursuant to Section 8.2 with respect to a Loss if such Loss would not have arisen but for actions taken or omitted to be taken by the Company after the Closing Date.
(iii) The Sellers shall not have any liability pursuant to Section 8.2 with respect to a Loss to the extent arising from or relating to any change in any Laws or any judicial (or similar) interpretation after the Closing Date that has a retroactive effect.
Seller’s Limitations. 9.1. The total aggregate liability of the Seller in respect of all Claims shall be limited to the aggregate of the Consideration to the extent paid to the Seller from the Escrow Account and the Inter-Company Loan Amount.
9.2. The Seller shall not be liable in respect of a Claim under this Agreement unless such Claim is notified to the Seller in writing, in accordance with clause 25, on or before the date falling twelve months after the Completion Date.
9.3. If not previously satisfied, settled or withdrawn, any Claim shall be deemed to be withdrawn (and no new Claim may be made in respect of the facts giving rise to such withdrawn Claim) unless legal proceedings in respect thereof have been commenced within six months of the giving of written notice of the Claim.
9.4. The Purchaser shall not be entitled to recover more than once in respect of any individual matter giving rise to a Claim.
9.5. The Seller shall not be liable for any Claim in respect of indirect or consequential loss.
9.6. The Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) take all reasonable action to mitigate any loss suffered by it or the relevant member of the Purchaser’s Group which has or is reasonably likely to result in a Claim.
Seller’s Limitations. (a) Sellers shall have no liability under Section 14.1 and no claim under Section 14.1 shall:
(i) accrue to any of Purchasers' Indemnified Persons against Sellers under Section 14.1(a) unless (1) the claim arising under the applicable representation or warranty under Section 14.1(a) exceeds $10,000 and (2) only to the extent the total liability of Sellers in respect of such claim(s) satisfying the threshold requirement in (1) above, together with claims made under Section 14.1(f), exceed(s) $1,000,000 in the aggregate; provided that there shall be no minimum loss requirements, and liability of Sellers shall arise from and after $1.00 of Losses, in respect of Losses resulting from any Seller's intentional misrepresentation or fraud; and
(ii) accrue to any of Purchasers' Indemnified Persons against Sellers under Section 14.1(f) unless and only to the extent the total liability of Sellers in respect of such claim, together with claims made under Section 14.1(a), exceeds $1,000,000;
(iii) accrue to any of Purchasers' Indemnified Persons against Sellers under Section 14.1(e) or Section 14.1(f) unless such claim is made within 12 months after Closing; and
(iv) be made unless notice thereof shall have been given by or on behalf of any of Purchasers' Indemnified Persons to Sellers in the manner provided in Section 14.5.
(b) Furthermore, notwithstanding any other provision in this Agreement to the contrary, Sellers' total aggregate liability under Section 14.1(a), Sections 14.1(e) and 14.1(f) shall be capped at, and shall not exceed $10,000,000 in total with (i) up to $10,000,000 for liability under Sections 14.1(e) and 14.1(f), and (ii) up to $5,000,000 for liability under Section 14.1(a); provided that there shall be no maximum liability of Sellers in respect of Losses resulting from any Seller's intentional misrepresentation or fraud.
Seller’s Limitations. Seller shall have no liability under Section 9.01(a) and no claim shall accrue against Seller under Section 9.01(a): (i) if the Loss arises from the inaccuracy of any representation or warranty made by Seller and Seller proves that prior to the Effective Date Buyer had actual knowledge of the inaccuracy of such representation or warranty, and (ii) unless and until the total liability of Seller in respect of claims arising under Section 9.01(a), together with claims arising under section 9.01(a) of the Related Agreement, exceeds $200,000 in the aggregate, provided that there shall be no minimum Losses requirement, and liability of Seller shall arise from and after $1.00 of Losses, in respect of Losses resulting from Seller’s intentional misrepresentation or fraud.
Seller’s Limitations. (a) In no event shall Seller's indemnification obligations under Section 15.1(a) exceed $100,000,000.
(b) Seller shall not be required to make any indemnification payment pursuant to Section 15.1(a) unless the aggregate of all amounts for which indemnity payable by Seller exceeds $750,000 (the "Basket Amount"), and in such event, Seller shall be responsible for only the amount in excess of the Basket Amount; provided that there shall be no minimum Loss requirement, and liability of Seller shall arise from and after $1.00 of Losses, in respect of Losses resulting from Seller's intentional misrepresentation or fraud.
(c) The liability of Seller with respect to any claim for indemnification by any Indemnified Party pursuant to Section 15.2 shall be offset dollar-for-dollar by (i) any insurance proceeds received by Buyer after the Closing Date in respect of the Losses involved, and (ii) any other recovery made by Buyer from any third-party on account of the Losses involved.
(d) Seller shall have no liability under Section 15.1(a) if, at or before the Closing Date, Vanguard or Buyer had actual knowledge of a false or incorrect representation or warranty of Seller or the New Foundation (other than as a result of disclosure by Seller or the New Foundation) and did not inform one of the Persons listed on Schedule 1.2(g)(i) of such knowledge.
Seller’s Limitations. The Purchaser Group will not be entitled to any punitive, incidental, indirect, special or consequential damages resulting from or arising out of any Purchaser Claim, including without limitation damages for lost revenues, income or profits diminution in value except to the extent due on any Third Party Claims. The aggregate cumulative damages to which the Purchaser Group will be entitled for all claims hereunder (other than pursuant to Subsection 12(c)(i)(C) and except with respect to the representations and warranties contained in Subsection 4(f) hereof and paragraph 2 of the Seller’s Officer’s Certificate, which claims shall be exempt from this limitation) shall be limited to the Purchase Price (in each case taking into account cumulative amounts paid on all other claims).
Seller’s Limitations. The terms of Schedule 8 shall apply to limit the liability of the Seller.
