Common use of Limitations on Seller’s Liability Clause in Contracts

Limitations on Seller’s Liability. The liability of the Parent and Seller under Section 9.1 of this Agreement shall be limited as set forth below. (i) The aggregate liability of Parent and Seller under Section 9.1(a) of this Agreement and, to the extent it relates to matters arising under said Section 9.1(a), the liability of Parent and Seller under Section 9.1(e) of this Agreement, shall: (A) not arise on account of a breach of a representation or warranty made by Seller if, prior to the Closing, Buyer obtains actual knowledge of the breach, including a reasonable basis to understand the nature and significance thereof, and Buyer nonetheless proceeds to the Closing and the consummation of the transactions contemplated by this Agreement without providing Seller with written notice of the breach and a reasonable opportunity to cure the breach; (B) not arise with respect to a single course of conduct, related set of circumstances, occurrence or event unless the damages suffered by an indemnified party arising therefrom exceed Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (“Seller Indemnifiable Breach”); (C) be recoverable if and only to the extent that the cumulative damages suffered by all indemnified parties for all Seller Indemnifiable Breaches with respect to claims under Section 9.1(a) hereof exceeds One Million and 00/100 Dollars ($1,000,000.00); and (D) be limited in the aggregate to an amount equal to ten percent (10%) of the Purchase Price; (provided that the $1,000,000 basket referred to in Section 9.3(g)(i)(C) shall not be accounted for in calculating such amount). (ii) The aggregate liability of Parent and Seller under Section 9.1(c) of this Agreement shall: (A) be recoverable if and only to the extent that the cumulative damages suffered by all indemnified parties with respect to claims under Section 9.1(c) hereof exceeds One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00); and (B) be limited in the aggregate to an amount equal to fifteen percent (15%) of the Purchase Price; (provided that the $1,500,000 basket referred to in Section 9.3(g)(ii)(A) shall not be accounted for in calculating such amount). (iii) The liability of the Parent and Seller in the aggregate under Section 9.1 of this Agreement shall: (A) be limited to Indemnifiable Losses (as that term is defined in Section 9.3(i) of this Agreement); (B) be limited to only one recovery by any indemnified party on account of any single loss, damage, cost, expense, liability, obligation or claim, even though such may have resulted from the breach or inaccuracy of more than one of the representations and warranties made by Seller in or pursuant to this Agreement; and (C) except with respect to indemnification obligations under Section 9.1(d) and (f) hereof, in no event exceed an out-of-pocket aggregate amount equal to fifteen percent (15%) of the Purchase Price. (iv) With respect to any claim for indemnification under Section 9.1(c), Seller and Parent shall have no obligation to indemnify or defend the Buyer Indemnified Parties to the extent the Indemnifiable Losses arise from physically invasive investigation, sampling or testing of soil or groundwater (such as a Phase II environmental site assessment) conducted by or behalf of Buyer, Fincantieri or LMC at any of the Leased Real Property or Owned Real Property that is not (A) required under Environmental Laws or requested by any Governmental Entity; (B) reasonably necessary to protect human (including worker) health; or (C) associated with an independent business purpose (other than the testing itself), including without limitation, in connection with (1) a financing, (2) maintenance, construction, renovation or expansion activities, (3) a proposed sale or transfer of MMG, any Subsidiary or all or part of the Business, (4) the termination or expiration of the Lease (or any amended or superseding lease) for the Leased Real Property, or (6) a proposed sale, closure or decommissioning of any Owned Real Property or Leased Real Property.

Limitations on Seller’s Liability. (a) Sellers shall not be liable to Buyers for any claims for damages asserted by Buyers against Sellers under this Agreement unless the amount of liability against Sellers, on an aggregate basis, exceeds CHF 15,000,000 (the Threshold Amount), in which case Sellers’ liability to Buyers shall be equal to the full amount of such liability provided, however, that, for claims to be counted against the Threshold Amount, each such claim, other than any claim under an indemnity under this Agreement and any claim under Article 10.26, must, on a stand-alone basis, exceed the amount of CHF 200,000 (the De Minimis Amount), it being understood that for purposes of determining the De Minims Amount, a series of claims shall be considered one claim if, and to the extent, each of such claims is based on the same facts, irrespective of whether brought by one or several claimant(s). The Threshold Amount shall not apply in respect of any claim (i) for breach of covenants, (ii) under the indemnity set forth in Article 9.1 (b), (iii) under Article 10.25, and (iv) under the indemnity set forth in Article 9.4.3 (Grenzach). (b) Notwithstanding anything in this Agreement to the contrary, Sellers’ aggregate liability of the Parent and Seller under Section 9.1 of any obligation under this Agreement shall not exceed thirty (30) percent of the Purchase Price as adjusted pursuant to Article 2.7.2 (the Cap); provided, however, that the Cap shall not be limited as set forth belowapplicable if, and to the extent, Sellers’ liability under this Agreement is caused by fraud or wilful misconduct of Sellers. (c) Any limitation of Sellers’ liability under Article 11(a) and Article 11(b) shall not apply to: (i) The aggregate the representation pursuant to section 5.1.1 (b) regarding ownership in Orion Shares; and (ii) any indemnity or representation relating to Tax. (d) Sellers’ liability of Parent shall be excluded or reduced, as the case may be, if, and Seller under Section 9.1(a) of this Agreement and, to the extent it relates to matters arising under said Section 9.1(a), the liability of Parent and Seller under Section 9.1(e) of this Agreement, shallextent: (Ai) not arise on account of a breach of a representation or warranty made by Seller ifBuyers and, prior to the following Closing, Buyer obtains actual knowledge of the breach, including a reasonable basis Orion Business have failed to understand the nature and significance use their Reasonable Best Efforts to mitigate their loss or damage in respect thereof, and Buyer nonetheless proceeds to the Closing and the consummation of the transactions contemplated by this Agreement without providing Seller with written notice of the breach and a reasonable opportunity to cure the breach; (Bii) Buyers or the Orion Business have recovered or, by applying their Reasonable Best Efforts, could have recovered, as the case may be, from any third Person, including, but not arise with limited to, an insurer, costs, expenses or damages in respect of any matter to which a single course claim asserted relates, after deduction of conduct, related set of circumstances, occurrence or event unless the damages suffered by an indemnified party arising therefrom exceed Twenty-Five Thousand all duly documented costs and 00/100 Dollars expenses incurred in making such recovery ($25,000.00) (“Seller Indemnifiable Breach”including reasonable attorney’s fees); (Ciii) be recoverable if and only to the extent that the cumulative damages suffered by all indemnified parties for all Seller Indemnifiable Breaches with respect to claims under Section 9.1(a) hereof exceeds One Million and 00/100 Dollars ($1,000,000.00); and (D) be limited a specific related provision, reserve or valuation allowance has been or is made or included in the aggregate to an amount equal to ten percent (10%) Final Closing Balance Sheet and has been included in the calculation of the Purchase Price; (provided that Net Working Capital, the $1,000,000 basket referred to Net Debt or the Provision and Liability Amount, each as finally and bindingly determined in Section 9.3(g)(i)(C) shall not be accounted for in calculating such amount). (ii) The aggregate liability of Parent and Seller under Section 9.1(c) of this Agreement shall: (A) be recoverable if and only to the extent that the cumulative damages suffered by all indemnified parties accordance with respect to claims under Section 9.1(c) hereof exceeds One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00); and (B) be limited in the aggregate to an amount equal to fifteen percent (15%) of the Purchase Price; (provided that the $1,500,000 basket referred to in Section 9.3(g)(ii)(A) shall not be accounted for in calculating such amount). (iii) The liability of the Parent and Seller in the aggregate under Section 9.1 of this Agreement shall: (A) be limited to Indemnifiable Losses (as that term is defined in Section 9.3(i) of this Agreement); (B) be limited to only one recovery by any indemnified party on account of any single loss, damage, cost, expense, liability, obligation or claim, even though such may have resulted from the breach or inaccuracy of more than one of the representations and warranties made by Seller in or pursuant to this Agreement; and (C) except with respect to indemnification obligations under Section 9.1(d) and (f) hereof, in no event exceed an out-of-pocket aggregate amount equal to fifteen percent (15%) of the Purchase PriceArticle 2.7.1. (iv) With respect such liability is attributable to any claim for indemnification under Section 9.1(c)an act, Seller and Parent shall have no obligation omission, transaction or arrangement of Buyers or the Orion Business (other than (i) one to indemnify or defend the Buyer Indemnified Parties to the extent the Indemnifiable Losses arise from physically invasive investigation, sampling or testing of soil or groundwater (such as a Phase II environmental site assessment) conducted by or behalf of Buyer, Fincantieri or LMC at any of the Leased Real Property or Owned Real Property that is not (A) required under Environmental Laws or requested by any Governmental Entity; (B) reasonably necessary to protect human (including worker) healthwhich Sellers consented; or (Cii) associated one which is required or contemplated under the provisions of this Agreement or in order to comply with applicable law under an independent business purpose enforceable court order) following the execution of this Agreement (other than with respect to Buyers only) and the testing itselfClosing (with respect to Buyers and the Orion Business), including without limitation, in connection with respectively; (1) a financing, (2) maintenance, construction, renovation or expansion activities, (3) a proposed sale or transfer of MMG, any Subsidiary or all or part of the Business, (4v) the termination damage or expiration disadvantage suffered by Buyers resulting from a fact or event has been reflected in the purchase price adjustment according to Article 2.7.2 or taken into account under Article 12; (vi) any Tax payable by the Orion Business is reduced as a result of the Lease a matter giving rise to a claim for misrepresentation, breach of warranty or indemnity; and (vii) such claim arises or any amended or superseding lease) for the Leased Real Property, or (6) is increased as a proposed sale, closure or decommissioning result of any Owned Real Property legislation, regulation, rule of law or Leased Real Propertypractice not in force at the date hereof or the withdrawal after Closing of any permit previously granted by any relevant authority or as a result of any change made or introduced on or after the date hereof in any legislation, regulation, rule of law or practice of any relevant authority, whether or not such change or withdrawal purports to be effective retrospectively in whole or in part.

Limitations on Seller’s Liability. The Notwithstanding anything to the contrary in this Agreement, the liability of the Parent and Seller under Section 9.1 any provision of this Agreement shall be limited as set forth below. (i) The aggregate liability follows, except that the following limitation shall not apply to a breach by Seller of Parent and Seller under its covenant contained in Section 9.1(a) of this Agreement and, to the extent it relates to matters arising under said Section 9.1(a), the liability of Parent and Seller under Section 9.1(e) of this Agreement, shall6.4: (A) not arise on account Seller shall have no liability for Losses unless a written Claim Notice meeting the requirements of a breach of a representation or warranty made by Section 9.5 has been delivered to Seller if, prior to the Closing, Buyer obtains actual knowledge of the breach, including a reasonable basis to understand the nature and significance thereof, and Buyer nonetheless proceeds to within one year after the Closing and the consummation of the transactions contemplated by this Agreement without providing Seller with written notice of the breach and a reasonable opportunity to cure the breach;Date. (B) Seller shall not arise with respect be obligated to a single course indemnify the Buyer under Section 9.2 hereof unless and until the cumulative amount of conductall Losses incurred, related set of circumstances, occurrence suffered or event unless the damages suffered paid by an indemnified party arising therefrom Buyer equal or exceed Twenty-Five Fifteen Thousand and 00/100 Dollars ($25,000.0015,000.00) in the aggregate (“Seller Indemnifiable Breach”the "Indemnity Aggregate Threshold");, and then only for the Losses of Buyer under Section 9.2 that exceed such amount, subject to the requirements of Section 9.3(i)(C). (C) After the Indemnity Aggregate Threshold has been met, Seller shall not be recoverable if and only obligated to indemnify the extent that Buyer for a particular Claim or Environmental Claim under Section 9.2 unless the cumulative damages collective Losses incurred, suffered or paid by all indemnified parties for all Seller Indemnifiable Breaches the Buyer with respect to claims under Section 9.1(a) hereof exceeds One Million and 00/100 Dollars such individual Claim or Environmental Claim exceed two thousand five hundred dollars ($1,000,000.002,500.00); and, in which event Seller will be liable for all such Losses relating to such individual Claim or Environmental Claim (subject to subsection (D) immediately below). (D) Seller shall not, in any case, be limited required to make payments to Buyer for Losses hereunder in the an aggregate to an amount equal to ten percent in excess of one hundred thousand dollars (10%) of the Purchase Price; (provided that the $1,000,000 basket referred to in Section 9.3(g)(i)(C) shall not be accounted for in calculating such amount100,000.00). (ii) The aggregate liability of Parent and Seller under Section 9.1(c) of this Agreement shall: (A) be recoverable if and only to the extent that the cumulative damages suffered by all indemnified parties with respect to claims under Section 9.1(c) hereof exceeds One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00); and (B) be limited in the aggregate to an amount equal to fifteen percent (15%) of the Purchase Price; (provided that the $1,500,000 basket referred to in Section 9.3(g)(ii)(A) shall not be accounted for in calculating such amount). (iii) The liability of the Parent and Seller in the aggregate under Section 9.1 of this Agreement shall: (A) be limited to Indemnifiable Losses (as that term is defined in Section 9.3(i) of this Agreement); (B) be limited to only one recovery by any indemnified party on account of any single loss, damage, cost, expense, liability, obligation or claim, even though such may have resulted from the breach or inaccuracy of more than one of the representations and warranties made by Seller in or pursuant to this Agreement; and (C) except with respect to indemnification obligations under Section 9.1(d) and (f) hereof, in no event exceed an out-of-pocket aggregate amount equal to fifteen percent (15%) of the Purchase Price. (iv) With respect to any claim for indemnification under Section 9.1(c), Seller and Parent shall have no obligation to indemnify or defend the Buyer Indemnified Parties to the extent the Indemnifiable Losses arise from physically invasive investigation, sampling or testing of soil or groundwater (such as a Phase II environmental site assessment) conducted by or behalf of Buyer, Fincantieri or LMC at any of the Leased Real Property or Owned Real Property that is not (A) required under Environmental Laws or requested by any Governmental Entity; (B) reasonably necessary to protect human (including worker) health; or (C) associated with an independent business purpose (other than the testing itself), including without limitation, in connection with (1) a financing, (2) maintenance, construction, renovation or expansion activities, (3) a proposed sale or transfer of MMG, any Subsidiary or all or part of the Business, (4) the termination or expiration of the Lease (or any amended or superseding lease) for the Leased Real Property, or (6) a proposed sale, closure or decommissioning of any Owned Real Property or Leased Real Property.