Exclusion of Sellers’ Liability Clause Samples
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Exclusion of Sellers’ Liability. In no event shall the Seller be liable for any Breach, and the Purchaser shall not be entitled to bring any claim under or in connection with this Agreement, if and to the extent (for the avoidance of doubt, a partial exclusion is possible):
(a) Either the Purchaser or the Purchaser's Representatives, or (following the Closing Date) the Group Entities, their respective representatives or any successor to all or part of their business have caused or participated in causing (verursacht oder mitverursacht) any Losses, except where these Losses were caused by legally mandatory actions, or have aggravated such Breach or any Losses resulting therefrom or failed to mitigate Losses pursuant to Section 254 German Civil Code (BGB);
(b) The matter underlying the Breach has been taken into account in the Financial Statements, as a write-off (Abschreibung), value adjustment (Wertberichtigung), liability (Verbindlichkeit) or provision (Rückstellung), including general adjustments or provisions made for the relevant risk category (e.g., Pauschalwertberichtigungen, Pau schalriickstellungen), or otherwise;
(c) The Purchaser or any of the Group Entities, or any successor to all or parts of their business has received or has a respective claim for repayment, reimbursement or indemnification against a third party (other than any of the Group Entities), including under any insurance policy in force until the Closing Date, or would have had such claim if the insurance coverage in force at the Closing Date had been maintained after the Closing Date;
(d) The matter underlying the Breach was known by the Purchaser or any of the Purchaser's Representatives on the Signing Date, provided that the Purchaser shall in any event be deemed to have knowledge of all matters which were Fairly Disclosed in:
(i) This Agreement, including its Exhibits and the Financial Statements (with Section l 2.l.5(b) above remaining unaffected);
(ii) The Due Diligence Material. For the purposes of this Agreement, the “Due Diligence Material” means the documents and information of a commercial, financial, accounting, tax, legal, environmental and other nature concerning the Sold Shares, the Group Entities and the Business which were made available to the Purchaser and the Purchaser's Representatives during, or in connection with, the Due Diligence, including the statements made, and answers given, to the Purchaser and the Purchaser's Representatives during the question & answer process instituted with respe...
Exclusion of Sellers’ Liability. Sellers shall not be liable for any Environmental Loss pursuant to Section 10.3 to the extent that:
(a) the Environmental Loss could reasonably have been avoided or mitigated by the Purchaser or the relevant Company, including by applying reasonably available environmental and safety measures (in accordance with applicable laws and past practice), after the Closing Date;
(b) the procedures referred to in Section 10.6 have not been materially complied with by Purchaser in connection with the relevant Environmental Matter, except to the extent that Purchaser proves that Sellers were not prejudiced thereby;
(c) the Environmental Loss is increased by (i) a sale or lease after the Closing Date of any property or portion thereof without the compliance by Purchaser with the obligation under Section 13.5 (b), (ii) a shut-down of a plant or significant portion thereof, with the effect that no substantial industrial operations will remain on the relevant site (a “Plant Shut-down”) (in each case except with (A) respect to the Duisburg-Meiderich Site, subject to the requirements set forth below, or (B) the other sites previously disclosed to Purchaser, (iii) a change of use to a non-industrial use or any expansion or construction activities (other than repairs or expansions of existing buildings or structures or construction of new buildings or structures for a reasonable business purpose, provided that Section 10.4 (a) is complied with), or (iv) a notification of the relevant Environmental Contamination or other Environmental Matter to any competent authority or other third party or an investigation on the property (in each case except as required under any law including in connection with the actions set forth in clause (i), (ii) or (iii)). With respect to Environmental Losses resulting from a Plant Shut-down implemented by Bakelite (or its successor) at the Duisburg-Meiderich Site after the Closing Date, Sellers’ liability for any Environmental Losses resulting from such Plant Shut-down shall not be excluded pursuant to paragraph (c) (ii) above if (i) Purchaser has notified Sellers of the contemplated Plant Shut-down at least 12 months in advance and (ii) Purchaser procures that Bakelite (or its successor) transfers the portion of the Duisburg-Meiderich Site, if owned by it on the Closing Date, to Sellers (or their designee) for no consideration. For the avoidance of doubt, any shut-down costs other than those resulting from Environmental Contamination shall be bor...
Exclusion of Sellers’ Liability. The Sellers shall not be obliged to indemnify the Purchaser, any of the Group Companies or Inactive Companies if and to the extent that:
3.1 the Pre-Effective Date Tax for which an indemnity is sought has been reflected in the Financial Statements 2007 as liability (Verbindlichkeit) or provision (Rückstellung);
Exclusion of Sellers’ Liability. The Sellers shall not be liable for a Breach of the Sellers' Guarantees if and to the extent that
7.2.1 either the Purchaser, or (following the Closing Date) its respective representatives have caused or participated in causing (verursacht oder mitverursacht) or have aggravated such Breach of the Sellers' Guarantees or any Losses resulting therefrom or failed to mitigate Losses pursuant to Section 254 of the German Civil Code (BGB); or
7.2.2 the matter underlying the Breach of the Sellers' Guarantees has been expressly and specifically taken into account in the Interim Financial Statements as a write-off (Abschreibung), value adjustment (Wertberichtigung), liability (Verbindlichkeit) or provision (Rückstellung), excluding general adjustments (e.g., Pauschalwertberichtigungen) or provisions were made therein for the relevant risk category.
Exclusion of Sellers’ Liability. The Sellers shall not be liable for any Breach, and the Purchaser shall not be entitled to bring any claim under or in connection with this Agreement, if and to the extent
(a) the matter to which the claim relates has specifically been taken into account in the Financial Statements by way of a liability (Verbindlichkeit), reserve (Rückstellung), or depreciation (Abschreibung), or exceptional depreciation (außerplanmäßige Abschreibung), or depreciation to reflect lower market values (Abschreibung auf den niedrigsten beizulegenden ▇▇▇▇);
(b) the amount of the claim is recovered from a third party or under an insurance policy in force on the Signing Date;
(c) the claim results from a failure of Purchaser (or, after Closing, the Company) to mitigate damages pursuant to Section 254 BGB;
(d) the Purchaser or the Company has received a tax benefit or tax saving comprising an advantage within the meaning of Section 9.1.2 as a direct result of the Breach;
(e) the matter to which the claim relates, was positively known by the Purchaser on the Signing Date or specifically disclosed to the Purchaser in this Agreement or its Exhibits; for the avoidance of doubt, this exclusion shall not apply to Sellers’ Indemnities, Sellers’ Covenants or any other indemnities or covenants of the Sellers under or in connection with this Agreement; or
(f) the claim results from or is increased by the passing of, or any change in, after the Signing Date, any law or administrative practice of any Governmental Authority not in effect at the Signing Date.
Exclusion of Sellers’ Liability. Sellers shall not be liable to Purchaser for any breach or non-fulfillment of a Sellers Guarantee if and to the extent:
(a) The facts forming the basis of the claim have specifically and adequately and with explicit reference to the relevant Section of the this Agreement been disclosed in the Disclosure Letter;
(b) the relevant Loss is the result of failure by Purchaser (after the Closing Date) of its obligation to avoid or mitigate damages according to Section 254 BGB;
(c) the matter to which an Indemnification Claim relates has been specifically taken into account in the Financial Statements as provision, reserve or depreciation, provided that such provision, reserve or depreciation is sufficient to satisfy such claim or Loss. For the avoidance of doubt, Sellers shall be liable for any Losses incurred by Purchaser or Purchaser Group in excess of such provision or reserve; or
(d) the (i) facts forming the basis of the claim and (ii) amount of the claim underlying the specific breach or non-fulfillment of a Sellers Guarantee have been taken into account in the determination of the Final Purchase Price pursuant to Section 3.
Exclusion of Sellers’ Liability. The Seller shall not be liable for any Environmental Loss pursuant to Sections 12.2 or 12.3 to the extent that:
12.4.1 In case of Section 12.2: Section 9.4 applies mutatis mutandis; and in case of Section 12.3 Sections 9.4.2, 9.4.3 and 9.4.4 apply mutatis mutandis; or
12.4.2 (i) the use of or the operations conducted at a property are materially changed so that an industrial use or activities reasonably related thereto is no longer pursued, or (ii) the Purchaser or any of the Group Companies solicit, trigger or otherwise actively cause, directly or indirectly any environmental examination by any governmental authorities, unless these activities are required under Environmental Law or by an Enforceable Administrative Notice, or there is a valid business reason other than merely or predominantly to trigger a liability of Seller or the Group Companies under Section 12.2 or 12.3, or (iii) the Purchaser or any of the Group Companies conduct any kind of investigation, audit, survey or similar examination of the soil, ground water or other environmental conditions of the premises of any Group Company, apart from the review of pertinent documentation and the conduct of interviews and the mere visual inspection of the surface of the soil without any kind of drilling or opening of the soil, unless being required to do so under Environmental Law or by an Enforceable Administrative Notice, or there is a valid business reason other than merely or predominantly to trigger a liability of the Seller or any of the Group Companies under Section 12.2 or 12.3, and in each case mentioned under (i) to (iii) this has resulted after the Closing Date in, or increased, the Environmental Loss that Seller is obligated to pay anyhow; always and in each case mentioned under (i) to (iii) provided that the Seller's liability shall not so be limited, if Environmental Matters occur or are identified in connection with expansion, construction, repair, maintenance or replacement activities undertaken by the Purchaser or by the relevant Group Company after the Closing Date which do not fall within the scope of (i) and the Environmental Loss claimed by the Purchaser results from obligations of the Purchaser or the Group Companies under Environmental Laws or an Enforceable Administrative Notice; further provided that if an intended expansion or construction activity can reasonably be expected to lead to a liability of the Seller under Section 12.2 or 12.3, the Purchaser will, and will use reaso...
Exclusion of Sellers’ Liability. The Parties expressly acknowledge and agree that the liability regime as well as any dispute resolution mechanism relating to the transaction contemplated hereunder shall conclusively be the subject matter of the SPA. Consequently. to the extent permitted by Law, any remedies and claims by the Purchaser based on or in connection with the transactions contemplated hereunder are hereby waived by Purchaser and excluded. Any claims based on statutory principles of breach of contract, in particular under Section 280 BGB (formerly known as “culpa in contrahendo” or “positive Vertragsverletzung”), “kaufrechtliche Gewährleistungsansprüche”, including, but not limited to, subsequent performance (Nacherfüllung) and unwinding (Rückabwicklung), or contestation (Anfechtung) of this Agreement, except for the contestation based on fraudulent deceit (Anfechtung wegen arglistiger Täuschung), as well as any claims based on frustration of contract (Störung der Geschäftsgrundlage) are excluded, save for any remedies of the Purchaser based on fraudulent deceit (arglistige Täuschung) or intentional breach of contract (vorsätzliche Vertragsverletzung). For the avoidance of doubt: any claims for specific performance of this Agreement (Erfüllungsansprüche) shall not be affected by this Article 6.
Exclusion of Sellers’ Liability. All matters and information which have been Fairly Disclosed in this Agreement (including, but not limited to, its Annexes) or in (i) the Disclosure Letter delivered to the Buyer; and (ii) the Data Room Documents as reflected in the Data Room Index and contained in the DVD attached hereto as Annex 9.1.4(ii) (the “Data Room Documents”; and together with all other documents and information referred to in this Section 9.1.4, the “Disclosure Documents”), and any matter, fact or circumstances known to the Buyer, shall operate as an exclusion of and limitation of Seller’s representations and warranties as set forth in Section 6 and the ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Seller shall be under no liability against the Buyer and/or any of the Mepha Group Companies to the extent any fact, matter, or circumstance has been Fairly Disclosed in the Disclosure Documents or in the Buyer’s Best Knowledge. For the avoidance of doubt, the fact that certain matters, facts and circumstances have been specifically disclosed in this Agreement (in particular its Annexes) or are otherwise known to the Buyer or its representatives shall not in any way operate or be understood or construed to limit or exclude the effect of the disclosure of any matters, facts or circumstances which have been disclosed in the Disclosure Documents but not in this Agreement (in particular its Annexes).
Exclusion of Sellers’ Liability. Seller shall not be liable in respect of a claim by Purchaser for misrepresentation or breach of warranty:
(i) only to the extent, that a provision, reserve or expense for the matter giving rise to the claim was reflected in the Closing Transferred Business Account or to the extent that the claimed amount can be offset against excess reserve or provision within the same Caption;
(ii) if, and to the extent, that the matter giving rise to the claim was Adequately Disclosed in the Disclosed Documents;
(iii) for any Loss to the extent such Loss is recoverable by Purchaser, Purchaser's Affiliates or any of the Group Companies from a third Person, including, but not limited to, an insurance company under an insurance policy taken out by Purchaser, any Purchaser's Affiliates or any of the Group Companies, or, should that be the case, Seller;
(iv) if, and to the extent that, any Loss has been caused by any act or omission of Purchaser or any of Purchaser's Affiliates, before or after the Closing, or by any of the Group Companies after the Closing, or by the fact that Purchaser or any of Purchaser's Affiliates with respect to that part of the Transferred Business acquired by such Affiliate shall have failed to take, or cause any of the Group Companies to take, all reasonable steps to mitigate the Loss caused by a misrepresentation or breach of warranty;
(v) with respect to Article 12.19, if and to the extent that such claim can be offset by the Group Companies utilizing the net operating loss carry forward up to the amount of such net loss carry forward existing at the time Purchaser notifies Seller of such claim.