Common use of Sole Remedy/Waiver Clause in Contracts

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the Parties acknowledge and agree that the remedies provided for in Section 2.9, Section 6.5 and this Article VII shall be the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter of this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreements, which shall be governed by the terms thereof). In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties hereby waive, on behalf of themselves and their Affiliates, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they may have against the Sellers or any of their Affiliates, or Purchaser Parent or any of its Affiliates (including Purchaser and its Subsidiaries), as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreements.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the The Parties acknowledge and agree that, in the event that the remedies provided for in Section 2.9, Section 6.5 and this Article VII shall be Closing occurs: (a) the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter remedy of this Agreement or any of the Ancillary Implementing Agreements (but not Purchaser Indemnitee with respect to any claims under and all Losses arising in connection with the other Ancillary Agreementsrepresentations, which shall warranties and covenants set forth in this Agreement will be governed by pursuant to the terms thereof)indemnification obligations set forth in Section 7.6 and Section 8.2; and (b) the sole and exclusive remedy of any Seller Indemnitee with respect to any and all Losses arising from this Agreement or the transactions contemplated hereby, including in connection with the representations, warranties and covenants set forth in this Agreement will be pursuant to the indemnification obligations set forth in Section 7.6 and Section 8.3. In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any, and claims for rescission) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers or any of their Affiliates, or Purchaser Parent Seller or any of its Affiliates (including or Representatives, any member of the board of directors of any Conveyed Company, or Purchaser and or any of its Subsidiaries)Affiliates or Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) arising from this Agreement or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by hereby, including in connection with any misrepresentation or breach of the warranties or covenants contained in this Agreement except with respect to claims of fraud, willful breach or intentional misrepresentations. Notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall limit or be construed to limit (i) any Person’s rights or remedies in the event of fraud, willful breach or intentional misrepresentation, as to which such Person shall have all remedies available at Law or in equity, (ii) limit any right of any Person to seek and obtain equitable relief (including specific performance or injunctive relief) in accordance with, and subject to, Section 10.17 or (iii) limit any Person’s rights or remedies under the Ancillary AgreementsTransaction Documents other than this Agreement.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the The Parties acknowledge and agree that, in the event that the Closing occurs, with the exception of the rights of any Purchaser Indemnitee or Seller Indemnitee (i) to bring any claim of Fraud, (ii) to seek available remedies provided for under any Ancillary Agreements, (iii) to resolve any Disputed Items before the Accountant, pursuant to Section 2.6, and (iv) to seek equitable relief pursuant to and in accordance with the provisions of Section 2.9, Section 6.5 and this Article VII shall be 10.17: (a) the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter remedy of this Agreement or any of the Ancillary Implementing Agreements (but not Purchaser Indemnitee with respect to any claims under and all Losses arising in connection with the other Ancillary AgreementsBusiness, which shall the Conveyed Companies or otherwise in connection with the transactions contemplated hereby will be governed by pursuant to the terms thereof)indemnification obligations set forth in Article VII and Section 8.2; and (b) the sole and exclusive remedy of any Seller Indemnitee with respect to any and all Losses arising in connection with the Business the Conveyed Companies or otherwise in connection with the transactions contemplated hereby will be pursuant to the indemnification obligations set forth in Article VII and Section 8.3. In furtherance of the foregoing, and except as set forth for the foregoing rights described in the exceptions set forth in the preceding sentence and except as provided in this Section 2.9, Section 6.5 and this Article VII, from and after the Closing8.8, the Parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any, and claims for rescission) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers or any of their Affiliates, or Purchaser Parent Seller or any of its Affiliates (including or Representatives, any member of the board of directors of any Conveyed Company, or Purchaser and or any of its Subsidiaries)Affiliates or Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such statutory remedies under Environmental Law (including the Comprehensive Environmental Response, Compensation and Liability Act (Superfund) and state statutes relating to environmental matters (including Environmental Lawsclean-up of hazardous substances) or arising under or based upon any securities Law, common law or otherwise) for any misrepresentation or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims breach of the warranties or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under covenants contained in this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreements.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after (a) The parties hereto acknowledge and agree that, if the Closing pursuant to this Agreementoccurs, and except in the case of fraud with respect to the representationsactual fraud, warranties, covenants and agreements contained in this Agreement, the Parties acknowledge and agree that the remedies provided for in Section 2.9, Section 6.5 and this Article VII VIII shall be the Parties’ sole and exclusive remedyremedies for any breach of this Agreement or any claims relating to this Agreement, other documents, certificates or agreements delivered in connection with this Agreement, the Terminal Operations, the Assumed Liabilities, the Purchased Assets, and the Excluded Liabilities (including with respect to Pre-Closing Asbestos Liabilities). (b) Purchaser acknowledges that its sole and exclusive remedy against Seller or any Affiliate of Seller for any Losses relating to any Environmental Laws, Permits required under Environmental Laws or Hazardous Materials, or any environmental, health or safety matter, including natural resources (“Environmental Losses”), is under Section 8.2 of this Agreement. In furtherance of the foregoing, from and after the Closing, with respect except for any Losses for which Seller is obligated to indemnify the Purchaser Indemnitees pursuant to Section 8.2, (i) Purchaser hereby releases, on its own behalf and on behalf of its Affiliates, predecessors, successors and assigns, officers, directors, employees, agents and partners, to the subject matter of fullest extent permitted under applicable Law, each Seller Indemnitee from (x) any Environmental Losses incurred by the Purchaser Indemnitees and (y) any other environmental, health or safety matter, including natural resources, related in any way to the Terminal Operations or this Agreement or its subject matter, (ii) Purchaser hereby waives, on its own behalf and on behalf of its Affiliates, predecessors, successors and assigns, officers, directors, employees, agents and partners, to the fullest extent permitted under applicable Law, any of claim or remedy against the Ancillary Implementing Agreements Seller Indemnitees now or hereafter available under any applicable Environmental Law, including CERCLA or similar international, foreign, federal, regional or state Law, whether or not in existence on the date hereof and (but not with respect to iii) Purchaser shall fully indemnify and hold harmless the Seller Indemnitees from and against any claims under the other Ancillary Agreements, which shall be governed Environmental Losses incurred by the terms thereof)Seller Indemnitees and any other environmental, health or safety matter, including natural resources, in each case related in any way to the Terminal Operations or this Agreement or its subject matter. In furtherance of the foregoing, and except as set forth the parties agree that, upon Closing, an environmental release in the exceptions set forth in form attached hereto as Exhibit M (the preceding sentence “Environmental Release”) shall become effective and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after shall be recorded immediately following recordation of the Closing, the Parties hereby waive, on behalf of themselves and their Affiliates, deeds with respect to the fullest extent permitted by applicable Law, any transfer of each parcel of Owned Real Property. The obligations of Purchaser under this Section 8.8(b) shall be binding upon the successors and all other rights, claims and causes assigns of action (including rights of contribution, if any) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they may have against the Sellers or any of their Affiliates, or Purchaser. If Purchaser Parent or any of its Affiliates successors or assigns (including Purchaser and its Subsidiariesi) consolidates with or merges into any other Person or (ii) transfers all or any portion of the Purchased Assets to any other Person (whether by asset sale, stock sale or otherwise), as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, proper provision shall be governed by made so that the terms thereofsuccessors and assigns of Purchaser honor the obligations set forth in this Section 8.8(b), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreements.

Sole Remedy/Waiver. Except with Should the Closing occur, the remedies provided for in this Article VIII shall be the sole and exclusive remedies of any Indemnified Party in respect to claims seeking of this Agreement, the Ancillary Agreements, the Purchased Assets, the Products, the Excluded Assets, the Assumed Liabilities, the Retained Liabilities or the transactions contemplated hereby or by the Ancillary Agreements, other than (i) for actions for specific performance or other equitable relief with remedies or (ii) for claims against a Party directly arising out of the fraud or intentional misconduct of such Party in respect to covenants or agreements to be performed after the Closing pursuant to of a provision of this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the Parties acknowledge and agree that the remedies provided for in Section 2.9, Section 6.5 and this Article VII shall be the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter of this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreements, which shall be governed by the terms thereof). In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties each Party hereby waive, waives (on behalf of themselves itself and their Affiliates, the relevant Indemnified Parties) any provision of applicable Law to the fullest extent permitted by applicable Lawthat it would limit or restrict the agreement contained in this Section 8.9, and each Party hereby waives (on behalf of itself and the relevant Indemnified Parties) for periods following the Closing any and all other rights, claims and or causes of action (including rights of contribution, if any) known it or unknown, foreseen its Affiliates or unforeseen, which exist or may arise in the future, that they relevant Indemnified Parties may have against the Sellers other Party or any of their Affiliates, or Purchaser Parent or any of its Affiliates (including Purchaser and its Subsidiaries), as or Representatives now or in the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether future arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence)this Agreement, any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreementany document or certificate delivered in connection herewith. Without limiting the generality of the foregoingIN NO EVENT SHALL ANY PARTY HERETO BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, in no event shall any PartySPECIAL, its AffiliatesINDIRECT OR PUNITIVE DAMAGES ARISING OUT OF ANY BREACH OF THE PROVISIONS OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary AgreementsEXCEPT IN THE CASE OF FRAUD OR WILLFUL MISCONDUCT OR TO THE EXTENT PAYABLE TO A THIRD PARTY.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreementactual fraud, the Parties parties hereto acknowledge and agree that the remedies provided for in Section 2.9, Section 6.5 and this Article VII Agreement or the Ancillary Agreements shall be the Partiesparties’ sole and exclusive remedy, from and after the Closing, remedy with respect to the subject matter of this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreements, which . No amount shall be governed recoverable under this Agreement by any Seller Party or Buyer Party to the terms thereof)extent such Seller Party or Buyer Party has asserted a claim or received indemnification for such Loss under any Ancillary Agreement. In furtherance of the foregoing, the parties hereby waive and except as set forth in the exceptions set forth in the preceding sentence release (and except as provided in Section 2.9, Section 6.5 agree to cause their respective Affiliates to waive and this Article VII, from and after the Closing, the Parties hereby waive, on behalf of themselves and their Affiliatesrelease), to the fullest extent permitted by applicable LawLaw and, except for claims of actual fraud, any and all other rights, claims and causes of action (including rights of contributioncontributions, if any) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers or any of their Affiliates, or Purchaser Parent Seller or any of its Affiliates (including Purchaser and Affiliates, or Buyer or any of its Subsidiaries)Affiliates, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty any federal, state or contract (including for breach of any representationlocal statute, warrantylaw, covenant ordinance, rule, regulation or agreement), tortious conduct (including negligence), any Law judicial decision (including any such Law statute, law, ordinance, rule, regulation or judicial decision relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Lawlaw, ERISA common law or otherwise) or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality in respect of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission subject matter of the transactions contemplated by this Agreement and the Ancillary Agreements. The parties shall be entitled to such remedies as shall be available at law or in equity with respect to any willful breach of this Agreement prior to the Closing, or if this Agreement is terminated to the extent provided in Section 9.2. The Indemnified Party is not entitled to recover damages or otherwise retain payment, reimbursement or restitution more than once in respect of the same loss or liability. This Section 8.6 shall survive Closing.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the (a) The Parties acknowledge and agree that, in the event that the Closing occurs, the remedies provided for in Section 2.9, Section 6.5 and this Article VII Agreement shall be the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter of this Agreement or remedy for any breach of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreementsrepresentations and warranties and covenants, which shall be governed by the terms thereof)undertakings and agreements contained in this Agreement. In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any) (other than with respect to a claim of fraud) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers Seller or any of their AffiliatesRepresentatives, or Purchaser Parent or any of its Affiliates (including Purchaser and its Subsidiaries)Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty any federal, state or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any local Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) for any breach of the representations and warranties and covenants, undertakings and agreements contained in this Agreement. (b) Each party hereto further acknowledges and agrees that its obligations to fulfill the covenants, undertakings and agreements set forth in this Agreement applicable to it are unique and that any breach or threatened breach of any of its obligations under any such covenants, undertakings and agreements may result in irreparable harm and substantial damages to the other party. Accordingly, in the event of a breach or threatened breach by either party of any covenant, undertaking or agreement set forth in this Agreement, the other Party hereto shall have the right, in addition to exercising any other remedies at law or in equity which may be available to it under this Agreement or otherwise, to obtain injunctive relief, specific performance and other equitable remedies in any court of competent jurisdiction, to prevent the breach, and/or to prevent the continuance of any breach, of any such covenant, undertaking or agreement, together with an award or judgment for any and all damages, losses, liabilities, expenses and costs incurred by the non-breaching party as a result of such breach or threatened breach. Each Party shall cause its respective Affiliates expressly waives any requirement based on any statute, rule or procedure, or other source, that the other party to an Ancillary Implementing Agreement not to assert post a bond as a condition of obtaining any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreementsabove-described remedies.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance for the enforcement of any covenant or other equitable relief with respect to covenants or agreements agreement to be performed after the Closing pursuant and claims for fraud or intentional misrepresentation, this ARTICLE VIII provides the exclusive means by which a Party may assert and remedy Claims after the Closing, and Section 10.11 provides the exclusive means by which a Party may bring actions against the other Party with respect to Claims under this Agreement. Except as set forth in Section 10.10(c) and this ARTICLE VIII, effective as of the Closing, each Party hereby waives and except in releases any other remedies or claims that it may have against the case other Party (or any of fraud its Affiliates) with respect to the representations, warranties, covenants and agreements contained matters arising out of or in connection with this Agreement, except that nothing herein shall limit the Parties acknowledge and agree that the remedies provided liability of any Party hereto for in Section 2.9, Section 6.5 and this Article VII shall be the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter of this Agreement fraud or any of the Ancillary Implementing Agreements (but not with intentional misrepresentation. With respect to any claims Losses arising under the other Ancillary Agreementsthis Agreement, which Purchaser agrees that Purchaser shall be governed by the terms thereof). In furtherance of the foregoingonly seek such Losses from Seller, and except Purchaser hereby waives the right to seek Losses from or equitable remedies, such as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9injunctive relief, Section 6.5 and this Article VII, from and after the Closing, the Parties hereby waive, on behalf against any Affiliate of themselves and their Affiliates, to the fullest extent permitted by applicable Law, any and all Seller (other rights, claims and causes of action (including rights of contribution, if anythan a Divesting Entity) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they may have against the Sellers or any director, officer or employee of their Affiliates, or Purchaser Parent Seller (or any of its Affiliates Affiliates). With respect to any Losses arising under this Agreement, Seller agrees that Seller shall only seek such Losses from Purchaser, and Seller hereby waives the right to seek Losses from or equitable remedies, such as injunctive relief, against any Affiliate of Purchaser or any director, officer or employee of Purchaser (including Purchaser and its Subsidiaries), as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreements).

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the The Parties hereto acknowledge and agree that, in the event that the Closing occurs, the remedies provided for in Section 2.9, Section 6.5 and this Article VII VIII shall be the Parties’ sole and exclusive remedyremedy for any breach of the representations and warranties or covenants contained in this Agreement, except for claims for fraud or intentional breach of any covenant contained in this Agreement. Without limitation of the foregoing, Parent and the Surviving Corporation hereby acknowledge and agree that, except in the case of fraud or intentional breach of any covenant contained in this Agreement, and except in the circumstances where the limitations set forth in Section 8.4(b) do not apply, the sole recourse of any Parent Intemnitee in respect of any Losses subject to indemnification hereunder shall be against funds on deposit from time to time in the Indemnity Escrow Account, and after the Closing, with no Parent Indemnitee shall have or assert any claim in respect to the subject matter of this Agreement thereof against Stockholders’ Representative or any of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreements, which shall be governed by the terms thereof)Equity Holder. In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closingevent of fraud or intentional breach of any covenant contained herein, the Parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any, and claims for rescission) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers Equity Holders or any of their Affiliatesrepresentatives, any member of the Board of the Company, or Purchaser Parent or any of its Affiliates (including Purchaser and its Subsidiaries)or representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty any federal, state or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law local law (including any such Law law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Lawlaw, common law or otherwise) for any breach of the representations and warranties or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under covenants contained in this Agreement. Without limiting The Parties further acknowledge and agree that, (I) at any time on or after June 30, 2007, the generality of the foregoing, in no event Stockholders’ Representative shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission instruct the Escrow Agent to release to the Stockholders’ Representative (i) if there are no claims then outstanding in respect of the transactions contemplated Indemnity Escrow Amount, any portion of the Indemnity Escrow Amount in excess of $5,000,000 or (ii) if there are claims then outstanding in respect of the Indemnity Escrow Amount, any portion of the Indemnity Escrow Amount in excess of the sum of (a) $5,000,000 plus (b) the aggregate amount of all claims then outstanding in respect of the Indemnity Escrow Amount and (II) at any time on or after January 31, 2008, upon request by this Agreement and the Ancillary AgreementsStockholders Representative, the Parties shall submit a joint written instruction to the Escrow Agent, instructing the Escrow Agent to release to the Stockholders’ Representative, (i) if there are no claims then outstanding in respect of the Indemnity Escrow Amount, any portion of the Indemnity Escrow Amount remaining on deposit in the Indemnity Escrow Account or (ii) if there are claims then outstanding in respect of the Indemnity Escrow Amount, any portion of the Indemnity Escrow Amount in excess of the aggregate amount of all claims then outstanding in respect of the Indemnity Escrow Amount.

Sole Remedy/Waiver. Except with respect Notwithstanding anything contained herein to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the contrary, the parties hereto acknowledge and agree that, should the Closing pursuant to occur, the remedies provided for in this Agreement, Article VIII shall be the parties’ sole and except in the case exclusive remedy for any breach of fraud with respect to the representations, warranties, agreements or covenants and agreements contained in this Agreement, the Parties acknowledge and agree that the remedies provided for in Section 2.9, Section 6.5 and this Article VII shall be the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter of this Agreement or any of claims relating to this Agreement or any other document, certificate or agreement delivered pursuant hereto or the Ancillary Implementing Agreements transactions contemplated herein or therein (but not with respect to any other than claims under arising from the other Ancillary AgreementsTransaction Documents, which shall be governed or claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto in connection with the transactions contemplated by the terms thereofthis Agreement). In furtherance of the foregoing, and except as set forth the parties hereby waive (other than for claims arising from the other Transaction Documents, or claims arising fraud, criminal activity or willful misconduct on the part of a party hereto in connection with the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and transactions contemplated by this Article VII, from and after the Closing, the Parties hereby waive, on behalf of themselves and their AffiliatesAgreement), to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any, and claims for rescission) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against Seller, any of the Sellers Acquired Companies or any of their Affiliatesrespective Representatives, or Purchaser Parent Buyer or any of its Affiliates (including Purchaser and its Subsidiaries)Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty any federal, state or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any local Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) for any breach of the representations, warranties, agreements or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims or causes of action under such Ancillary Implementing covenants contained in this Agreement, and all such claims shall be asserted only under except pursuant to the indemnification provisions set forth in this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary AgreementsArticle VIII.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the Parties (a) The parties hereto acknowledge and agree that, in the event that the Closing occurs, the remedies provided for in Section 2.9, Section 6.5 and this Article VII Agreement shall be the Partiesparties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter remedy for any misrepresentations or breach of warranties contained in this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any claims under the other Ancillary Agreements, which shall be governed by the terms thereof)Agreement. In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contributioncontributions, if any) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against either Seller, the Sellers Seller Corporations or any of their AffiliatesRepresentatives, or Purchaser Parent or any of its Affiliates (including Purchaser and its Subsidiaries)Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law Law or otherwise) for any misrepresentations or breach of warranties contained in this Agreement. (b) Each party hereto further acknowledges and agrees that its obligations to fulfill the covenants set forth in this Agreement applicable to it are unique and that any breach or threatened breach of any of its obligations under any such covenants may result in irreparable harm and substantial damages to the other party. Accordingly, in the event of a breach or threatened breach by either party of any covenant set forth in this Agreement, the other party here to shall have the right, in addition to exercising any other remedies at law or equity which may be available to it under this Agreement or otherwise, to obtain ex parte, preliminary, interlocutory, temporary or permanent injunctive relief, specific performance and other equitable remedies in any court of competent jurisdiction, to prevent the breach, and/or to prevent the continuance of any breach, of any such covenant, together with an award or judgment for any and all damages, losses, liabilities, expenses and costs incurred by the non-breaching party as a result of such breach or threatened breach. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert expressly waives any claims requirement based on any statute, rule or causes procedure, or other source, that the other party post a bond as a condition of action under such Ancillary Implementing Agreement, and all such claims shall be asserted only under this Agreement. Without limiting the generality obtaining any of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreementsabove-described remedies.

Sole Remedy/Waiver. Except with respect to claims seeking specific performance or other equitable relief with respect to covenants or agreements to be performed after the Closing pursuant to this Agreement, and except in the case of fraud with respect to the representations, warranties, covenants and agreements contained in this Agreement, the The Parties acknowledge and agree that, in the event that the remedies provided for in Section 2.9, Section 6.5 and this Article VII shall be Closing occurs: (a) the Parties’ sole and exclusive remedy, from and after the Closing, with respect to the subject matter remedy of this Agreement or any of the Ancillary Implementing Agreements (but not Purchaser Indemnitee with respect to any claims under and all Losses arising in connection with the other Ancillary AgreementsBusiness, which shall the Purchased Assets, the Conveyed Entities or otherwise in connection with the transactions contemplated hereby will be governed by pursuant to the terms thereof)indemnification obligations set forth in ‎Section 7.6 and ‎Section 8.2; and (b) the sole and exclusive remedy of any Seller Indemnitee with respect to any and all Losses arising in connection with the Business, the Purchased Assets, the Conveyed Entities or otherwise in connection with the transactions contemplated hereby will be pursuant to the indemnification obligations set forth in ‎Section 7.6 and ‎Section 8.3. In furtherance of the foregoing, and except as set forth in the exceptions set forth in the preceding sentence and except as provided in Section 2.9, Section 6.5 and this Article VII, from and after the Closing, the Parties hereby waive, on behalf effective upon the occurrence of themselves and their Affiliatesthe Closing, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, if any, and claims for rescission) known or unknown, foreseen or unforeseen, which exist or may arise in the future, that they it may have against the Sellers or any of their Affiliates, or Purchaser Parent Seller or any of its Affiliates (including or Representatives, any member of the board of directors of any Conveyed Company, or Purchaser and or any of its Subsidiaries)Affiliates or Representatives, as the case may be, in connection with the transactions contemplated by this Agreement or any of the Ancillary Implementing Agreements (but not with respect to any rights, claims or causes of action under the other Ancillary Agreements which, in each case, shall be governed by the terms thereof), whether arising under or based upon breach of warranty or contract (including for breach of any representation, warranty, covenant or agreement), tortious conduct (including negligence), any Law (including any such Environmental Law relating to environmental matters (including Environmental Laws) or arising under or based upon any securities Law, common law or otherwise) for any misrepresentation or otherwise. Each Party shall cause its respective Affiliates party to an Ancillary Implementing Agreement not to assert any claims breach of the warranties or causes of action under such Ancillary Implementing covenants contained in this Agreement, except with respect to claims of fraud, willful breach or intentional misrepresentations. Notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall limit or be construed to limit (i) any Person’s rights or remedies in the event of fraud, willful breach or intentional misrepresentation, as to which such Person shall have all remedies available at Law or in equity (ii) limit any right of any Person to seek and all such claims shall be asserted only obtain equitable relief (including specific performance or injunctive relief) in accordance with, and subject to, ‎Section 10.17 or (iii) limit any Person’s rights or remedies under the Ancillary Agreements other than this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its Affiliates, successors or permitted assigns be entitled to claim or seek rescission of the transactions contemplated by this Agreement and the Ancillary Agreements.