Maximum Liability The provisions of this Loan Guaranty are severable, and in any action or proceeding involving any state corporate law, or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Loan Guarantor under this Loan Guaranty would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Loan Guarantor’s liability under this Loan Guaranty, then, notwithstanding any other provision of this Loan Guaranty to the contrary, the amount of such liability shall, without any further action by the Loan Guarantors or the Lenders, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding (such highest amount determined hereunder being the relevant Loan Guarantor’s “Maximum Liability”. This Section with respect to the Maximum Liability of each Loan Guarantor is intended solely to preserve the rights of the Lenders to the maximum extent not subject to avoidance under applicable law, and no Loan Guarantor nor any other person or entity shall have any right or claim under this Section with respect to such Maximum Liability, except to the extent necessary so that the obligations of any Loan Guarantor hereunder shall not be rendered voidable under applicable law. Each Loan Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of each Loan Guarantor without impairing this Loan Guaranty or affecting the rights and remedies of the Lenders hereunder, provided that, nothing in this sentence shall be construed to increase any Loan Guarantor’s obligations hereunder beyond its Maximum Liability.
Proportionate Liability To avoid doubt, the parties agree that section 35 of the Civil Liability Act 2002 (NSW) applies to any apportionable claim relating to this agreement.
Aggregate Liability The aggregate liability of either: (a) Customer, its Affiliates and Participating Entities; or (b) Verizon and its Affiliates, to the others collectively for any and all Events in an Annual Period is limited to an amount equal to 12 times the Average Monthly Charges during the Annual Period in which an Event first occurred. For the purpose of this clause and calculation, where: (i) an Event gives rise to a number of separate liabilities, claims or causes of action, and/or (ii) there is a series of connected Events, such will be considered a single Event and will be deemed to have occurred in the Annual Period in which the first Event occurred.
Excess/Umbrella Liability Excess/umbrella liability insurance may be included to meet minimum requirements. Umbrella coverage must indicate the existing underlying insurance coverage.
Vehicle Liability Consultant shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on Consultant’s owned, hired and non-owned vehicles assigned to or used in the performance of the Consultant’s work or services under this Agreement. Coverage will be at least as broad as ISO coverage code “1” “any auto” policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent allowed by law, for claims arising out of the performance of this Agreement, the City, its agents, representatives, officers, directors, officials and employees shall be cited as an Additional Insured under ISO Business Auto policy Designated Insured Endorsement form CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of this subsection, such Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance.
Extent of Liability; Contribution (a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this Section 5.11 shall be limited to the greater of (i) all amounts for which such Borrower is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.
(b) If any Borrower makes a payment under this Section 5.11 of any Obligations (other than amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum amount that could then be recovered from such Borrower under this Section 5.11 without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any applicable state fraudulent transfer or conveyance act, or similar statute or common law.
(c) Nothing contained in this Section 5.11 shall limit the liability of any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower), LC Obligations relating to Letters of Credit issued to support such Borrower’s business, and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of such Loans and Letters of Credit to such Borrower.
Exceptions from Liability Without limiting the generality of any other provisions hereof, neither the Custodian nor any Domestic Subcustodian shall be under any duty or obligation to inquire into, nor be liable for:
Umbrella Liability The Umbrella / Excess Liability must be at least as broad as the underlying general liability and automobile liability policies. Limits – Each Occurrence $1,000,000 General Aggregate $1,000,000
Cross-Liability All required liability policies shall provide cross-liability coverage as would be achieve under the standard ISO separation of insureds clause.
Liability Limits (a) Notwithstanding anything to the contrary set forth herein, the Purchaser Indemnified Parties shall not make a claim against any Seller for indemnification under this Article IX for Purchaser Losses unless and until, and only to the extent that, the aggregate amount of such Purchaser Losses exceeds $450,000 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for all Purchaser Losses in excess of $450,000; provided, however, that Purchaser Losses related to Surviving Obligations shall not be subject to the Purchaser Basket nor shall they be included in calculating the Purchaser Basket. The total aggregate amount of the liability of Holdco and the Sellers for Purchaser Losses shall be limited to $11,000,000 (the “Purchaser Cap”); provided, however, that Purchaser Losses arising from Surviving Obligations shall not be subject to the Purchaser Cap. Notwithstanding anything to the contrary set forth herein, in no event shall the aggregate liability of the Sellers and Holdco for indemnification pursuant to this Article IX exceed the amount equal to the Maximum Cap.
(b) The Purchaser Indemnified Parties shall not be entitled to indemnification under this Article IX for Purchaser Losses to the extent such Purchaser Losses were (i) reflected as a liability on the Final Working Capital Schedule or (ii) included on the Closing Date Expense Statement or the Closing Date Indebtedness Statement and, with respect to the foregoing clause (ii), were paid at Closing.
(c) Any indemnification obligation of the Sellers pursuant to this Article IX shall be satisfied first from the Escrow Fund, and if the Escrow Fund is insufficient, at the sole discretion of the Purchaser, (a) by Holdco and/or (b) by each of the Sellers on a several and not joint basis; provided that:
(i) each Non-Individual Seller’s liability for any Purchaser Loss shall not exceed such Non-Individual Seller’s Seller Percentage of such Purchaser Loss, and in the event a Non-Individual Seller indemnifies a Purchaser Indemnified Party for a Purchaser Loss, such indemnification payment shall, with respect to such Purchaser Loss, reduce, dollar-for-dollar, the indemnification limits under Section 9.5(c)(ii) or Section 9.5(c)(iii), as applicable, of the Individual Seller to which such Non-Individual Seller is a Related Party;
(ii) each Individual Seller’s liability for any Purchaser Loss shall not exceed such Individual Seller’s Indemnification Percentage of such Purchaser Loss, and in the event that an Individual Seller indemnifies a Purchaser Indemnified Party in an amount equal to such Individual Seller’s Indemnification Percentage of such Purchaser Loss, the Purchaser Indemnified Party may not seek indemnification from such Individual Seller’s Related Parties as a result of such Purchaser Loss; and
(iii) each Individual Seller is responsible for 100% of any Purchaser Loss arising under Section 9.1(a) with respect to a breach by such Individual Seller or such Individual Seller’s Related Party of any representation in Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, or 5.7. Notwithstanding the foregoing, the Purchaser may, at its sole discretion, set off any obligation of the Sellers for Purchaser Losses pursuant to this Article IX from any Earnout Amount payable to Holdco pursuant to the Earnout Agreement. In no event shall the Purchaser be entitled to use any of the funds held in the Escrow Fund to satisfy any of its indemnification obligations to any Seller Indemnified Party.
(d) The amount of Purchaser Losses otherwise payable to the Purchaser Indemnified Parties pursuant to this Article IX shall be net of any insurance proceeds actually received by the Purchaser Indemnified Parties with respect to such Purchaser Losses under insurance policies maintained by the Company prior to the date hereof.
(e) No Purchaser Loss or Seller Loss shall include punitive damages (unless required to be paid by the Indemnified Party in respect of a Third Party Claim).
