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 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 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 180 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 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 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.