Common use of Limits on Indemnification Clause in Contracts

Limits on Indemnification. (a) The indemnification provided in this Section 7 shall constitute the exclusive remedy for breach of representation and warranties in this Agreement, regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right to be indemnified. (b) Notwithstanding any other provisions of this Agreement, no party shall be liable under this Section 7 for an amount to the extent, if any, that any damages giving rise to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party. (c) No Indemnified Party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Section 7, nor shall it accept payment of any award or judgment for such indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profits. (d) All damages to which an Indemnified Party may be entitled pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by the Indemnified Party. (e) The Indemnifying Party shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000, the Indemnified Party shall be entitled to be indemnified against and compensated and reimbursed for the amount of such Damages exceeding $50,000.

Limits on Indemnification. (a) The indemnification provided Notwithstanding anything to the contrary contained in this Section 7 shall constitute Agreement or the exclusive remedy for breach of representation and warranties in this Shareholders’ Agreement, regardless FoundryCo shall not submit any notice of whether Claim to Discovery or directly pursue any claims or causes of action asserted with respect to such matters are brought Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in contractany case, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 12.02. Any such notice of this Agreement claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the time investigation and prosecution of any such Indemnified Party has the right Claim or Action related to be indemnifiedsuch Claim. (b) Notwithstanding any other In the event that Oyster has a Claim for indemnification against Discovery pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery shall not be liable for any Claim for indemnification pursuant to Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), no party or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be liable entitled to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a). (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Section 7 for Article XII. Any insurance proceeds actually recovered by an amount to the extent, if any, that any damages giving rise to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party. (ce) No Party (or any other Indemnified Party Party) shall seek or be entitled to incidentalreceive any consequential damages, indirect including but not limited to loss of revenue or consequential damages income, cost of capital, or damages for lost profits loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or any claim for indemnification under this Section 7, Ancillary Agreement; nor shall it accept payment of any award Party or judgment for such indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profits. (d) All damages to which an Indemnified Party may be entitled pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by the Indemnified Party. (e) The Indemnifying Party shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly seek or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000, the Indemnified Party shall be entitled to be indemnified against and compensated and reimbursed for receive punitive damages as to any matter under, relating to or arising out of the amount of such Damages exceeding $50,000transaction contemplated by this Agreement or the Ancillary Agreements.

Limits on Indemnification. (a) The In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification provided in this Section 7 claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall constitute be computed net of (i) payments actually recovered by the exclusive remedy for breach of representation and warranties in this Agreement, regardless of whether Indemnified Party under any claims or causes of action asserted insurance policy with respect to such matters are brought in contract, tort Losses and (ii) any prior or any other legal theory whatsoever; provided, however, that only in subsequent actual recovery by the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right from any Person with respect to be indemnifiedsuch Losses and (iii) any Tax Benefit accruing to any Indemnified Party on account of such Losses. (b) Notwithstanding any other provisions provision of this Agreement, in no party event shall any Party be liable under this Section 7 for an amount punitive, special, incidental, indirect, consequential or lost profits damages of any kind or nature, regardless of the form of action through which such damages are sought, except for any such damages recovered by any third party against any Party in respect of which such Party would otherwise be entitled to indemnification pursuant to the extent, if any, that any damages giving rise to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Partyterms hereof. (c) No Indemnified Party shall seek or In addition to being entitled to exercise all rights provided herein, including recovery of damages, the Parties will be entitled to incidental, indirect or consequential specific performance under this Agreement. The Parties agree that monetary damages or damages may not be adequate compensation for lost profits any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any claim action for indemnification under this Section 7, nor shall it accept payment specific performance of any award or judgment for such indemnification to obligation the extent defense that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profitsa remedy at law would be adequate. (d) All damages to which an Indemnified Party may If the Closing occurs, neither the Company nor NGPMR will be entitled pursuant to indemnity under ** of this Agreement for Losses with respect to any claim under ** until the aggregate amount of all such claims **, and thereafter, the Company and/or NGPMR shall ** Losses **; provided however, that all Losses resulting from or arising out of any ** shall be indemnified against ** to the provisions **. Except for a claim of actual fraud involving a knowing and intentional misrepresentation or omission of a material fact or willful or intentional breach, in no event will the aggregate liability of (i) ** under ** and (ii) ** under ** in respect of ** claims of ** under ** exceed **; provided, however, that the aggregate liability of ** under ** with respect to ** shall not exceed **; provided, further that the aggregate liability of ** under ** in respect of ** claims of ** under ** with respect to ** shall not exceed **. Notwithstanding anything to the contrary in this Agreement, in no event shall the aggregate liability of (i) ** arising under this Agreement and from the transactions contemplated hereby exceed ** and (ii) ** arising under this Agreement and from the transactions contemplated hereby exceed **. The reimbursement and indemnification obligations set forth in ** shall not be subject to any of the limitations set forth in this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by the Indemnified Party5.8. (e) The Indemnifying Party In no event shall not be required to make the ** recovery of any indemnification payment Losses pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000, the Indemnified Party Article 5 be duplicative. (f) The remedies provided in this Article 5 shall be entitled the sole and exclusive legal remedies of the Parties, from and after the Closing, with respect to be indemnified against this Agreement and compensated the transactions contemplated hereby; provided that nothing in this Section 5.8(f) shall prevent either Party from (i) seeking specific performance, injunctive and/or equitable relief for claims of breach or failure to perform covenants performable under this Agreement at any time after the Closing or (ii) pursuing, and reimbursed for the amount recovering in respect of, any claim based on actual fraud involving a knowing and intentional misrepresentation or omission of such Damages exceeding $50,000a material fact or willful or intentional breach.

Limits on Indemnification. Notwithstanding anything to the contrary contained in this Agreement: (a) The Consideration Stockholders shall not be liable for any claim for indemnification provided in this pursuant to Section 7 shall constitute the exclusive remedy for breach of representation 9.2(a), unless and warranties in this Agreement, regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of until the aggregate amount of all payments actually received by SELLER indemnifiable Losses which may be recovered from the Consideration Stockholders pursuant to Section 1.3 of this Agreement as 9.2(a) equals or exceeds the Basket Amount, in which case the Consideration Stockholders shall be liable only for Losses in excess of the time such Indemnified Party has Basket Amount; provided, that the right to be indemnifiedlimit provided for in this clause (a) shall not apply in the event of Fraud. (b) Notwithstanding any other provisions The maximum aggregate amount of this Agreementindemnifiable Losses which may be recovered from the Consideration Stockholders resulting from, no party arising out of or relating to the causes set forth in Section 9.2(a) shall be liable an amount equal to the Cap; provided, that the limit provided for in this clause (b) shall not apply (i) to any Losses resulting from, arising out of or relating to the inaccuracy or breach of any Fundamental Representation or (ii) in the event of Fraud; (i) The maximum aggregate amount of indemnifiable Losses that may be recovered from the Consideration Stockholders resulting from, arising out of or relating to the causes set forth in Section 9.2 shall be the Escrow Amount; provided, that the limit provided for in this clause (c)(i) shall not apply in the event of Fraud, in which case the maximum amount of indemnifiable Losses which may be recovered from such Consideration Stockholders shall be limited to the value of the Merger Consideration (with the value of the Stock Consideration calculated using the Closing Acquiror Share Value) actually received hereunder and (ii) the maximum liability of any Consideration Stockholder under this Section 7 Article IX shall be limited to such Consideration Stockholder’s Pro Rata Portion of the Escrow Amount; provided, that the limit provided for an in this clause (c)(ii) shall not apply in the event of Fraud, in which case the maximum amount of indemnifiable Losses which may be recovered from any Consideration Stockholder shall be limited to the extent, if any, that any damages giving rise to such amount results from a failure on the part value of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing Merger Consideration (with the interests value of the Indemnifying Party. (cStock Consideration calculated using the Closing Acquiror Share Value) No Indemnified Party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Section 7, nor shall it accept payment of any award or judgment for actually received hereunder by such indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profitsConsideration Stockholder. (d) All damages Acquiror shall not be liable for any claim for indemnification pursuant to which an Indemnified Party Section 9.3(a), unless and until the aggregate amount of indemnifiable Losses that may be entitled pursuant to recovered from Acquiror equals or exceeds the provisions of this Section 7 Basket Amount, in which case Acquiror shall be net liable only for Losses in excess of any insurance coverage with respect thereto and any tax benefits realizable by that amount; provided, that the Indemnified Partylimit provided for in this clause (d) shall not apply in the event of Fraud. (e) The maximum aggregate amount of indemnifiable Losses that may be recovered from Acquiror resulting from, arising out of or relating to the causes set forth in Section 9.3 shall be $1,850,000; provided, that the limit provided for in this clause (e) shall not apply in the event of Fraud. (f) In no event shall any punitive or exemplary Losses be subject to indemnification hereunder unless such Losses are actually awarded to a third party. (g) The amount of any Losses that are subject to indemnification by an Indemnifying Party under this Article IX shall not be required to make any indemnification payment pursuant to this Section 7 until such time as calculated net of the total amount of all damages that have any proceeds actually received by the Indemnified Party from insurance or any other third party in respect of such Losses (net of costs and expenses incurred in connection with the recovery of such proceeds and any increase in insurance premium associated therewith). If any such proceeds are received with respect to any Losses after payment has been directly or indirectly suffered or incurred by made to an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000Party with respect thereto under this Article IX, the Indemnified Party shall be entitled promptly, (i) if the Indemnified Party is an Acquiror Indemnified Party and such proceeds are received prior to be indemnified against and compensated and reimbursed for the Final Release Date, deliver the amount of such Damages exceeding $50,000proceeds (net of costs and expenses incurred in connection with the recovery of such proceeds and any increase in insurance premium associated therewith) to the Escrow Agent for deposit into the Escrow Fund, or (ii) if the Indemnified Party is a Stockholder Indemnified Party, or an Acquiror Indemnified Party and such proceeds are received after the Final Release Date, deliver the amount of such proceeds (net of costs and expenses incurred in connection with the recovery of such proceeds and any increase in insurance premium associated therewith) to the Indemnifying Party. This Section 9.5(e) shall not apply with respect to insurance proceeds recovered under the R&W Insurance Policy. (h) For purposes of calculating the indemnifiable Losses that may be recovered pursuant to Section 9.2, the amount of any indemnifiable Losses shall be determined without duplication of any other Loss for which indemnification has been provided and shall be computed net of any amounts specifically related to such Losses that are actually included in the calculation of Closing Merger Consideration (as adjusted pursuant to Section 3.5).

Limits on Indemnification. (a) The indemnification provided in this Section 7 All Indemnifiable Costs sought by any party hereunder shall constitute the exclusive remedy for breach be net of representation and warranties in this Agreement, regardless of whether any claims insurance proceeds or causes of action asserted tax benefits received by such Person with respect to such matters are brought claim (less the present value of any premium increases occurring as a result of such claim). Except for any claims for breach of the representations, warranties and covenants of the Sellers under Sections 3.1, 3.2, 3.3, 3.6, 3.14, 3.17 or Article VI hereof (for which indemnification claims must be made prior to the expiration of the applicable statute of limitations or the expiration date set forth in contractsuch Sections and if so made, tort or such claims shall continue after such date until finally resolved), the right to make claims for indemnification provided under this Article VIII shall expire on the second anniversary of the Closing Date (except for claims made prior to such date which shall continue after such date until finally resolved). The Sellers shall not be obligated to pay any other legal theory whatsoeveramounts for indemnification under this Article VIII until the aggregate indemnification obligation sought by Buyer hereunder exceeds $50,000, whereupon the Sellers shall be liable for all amounts for which indemnification may be sought in excess of such $50,000 deductible; provided, however, that only in any Indemnifiable Costs resulting from a breach by the case Sellers of fraudany of her obligations under Section 5.6 hereof, shall not be subject to the indemnification provisions limitations set forth in this Section 7 are in addition tosentence, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER but shall be equal to 50% of reimbursable by the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right to be indemnified. (b) Notwithstanding any other provisions of this Agreement, no party shall be liable under this Section 7 for an amount Sellers to the extent, if any, that Indemnified Parties on a dollar-for-dollar basis. Buyer shall not be obligated to pay any damages giving rise to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party. (c) No Indemnified Party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim amounts for indemnification under this Section 7, nor shall it accept payment of any award or judgment for such Article VIII until the aggregate indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profits. (d) All damages to which an Indemnified Party may be entitled pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable obligation sought by the Indemnified Party. (e) The Indemnifying Party shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages Sellers hereunder exceeds $50,000, the Indemnified Party whereupon Buyer shall be entitled liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of the Sellers to be indemnified against and compensated and reimbursed Buyer or Buyer to the Sellers exceed the Purchase Price except for claims with respect to ownership or rights to ownership of the Company's capital stock. However nothing in this Article VIII shall limit Buyer or the Sellers in exercising or securing any remedies provided by applicable statutory or common law with respect to the conduct of the Sellers or Buyer in connection with this Agreement or in the amount of such Damages exceeding $50,000damages that it can recover from the other in the event that Buyer successfully proves intentional fraud or intentional fraudulent conduct in connection with this Agreement. All Indemnifiable Costs paid by the Sellers shall be deemed to be a reduction of the Purchase Price paid by Buyer under this Agreement.

Limits on Indemnification. (a) The indemnification provided in this Section 7 shall constitute the exclusive remedy for breach of representation All representations and warranties in this Agreement, regardless Agreement shall survive Closing for a period of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoevertwo years following the Closing Date; provided, however, that only the Seller's representations and warranties set forth in Section 2.4 as to Seller's "good and marketable title to the case of fraud, the indemnification provisions Acquired Assets" shall survive in this Section 7 are in addition to, and not in derogation of, any statutory, equitable perpetuity. No claim or common law remedy any party may have action for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER warranty shall be equal to 50% of asserted or maintained by any party hereto after the aggregate amount of all payments actually received by SELLER expiration thereof pursuant to Section 1.3 of this Agreement as of the time preceding sentence except for claims made in writing prior to such Indemnified Party has expiration or actions (whether instituted before or after such expiration). If such written notice is given, the right to be indemnifiedsurvival period for the applicable representation or warranty shall continue until the claim is fully resolved. (b) Notwithstanding Each party agrees that the remedies set forth in this Section 8, together with the remedies set forth in the Ancillary Agreements, shall be the sole and exclusive remedies which such party shall have from and after the Closing Date against the other party or any other provisions of this Agreementits directors, officers, employees, Affiliates, agent or stockholders; provided, however, that no party hereto shall be liable under this Section 7 for an amount deemed to have waived any rights, claims, causes of action or remedies if and to the extentextent such rights, if any, that any damages giving rise to such amount results from a failure claims causes of action or remedies may not be waived under applicable law or fraud is proven on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Partya party by another party hereto. (c) No Indemnified Party party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Section 7, nor shall it accept payment Agreement or any of any award the Ancillary Agreements for consequential or judgment for such indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profitsincidental damages. (d) All damages The obligation of the Seller to which an Indemnified Party may be entitled indemnify the Purchaser pursuant to the provisions of this Section 7 8 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by not exceed the Indemnified PartyPurchase Price. (e) The Indemnifying Party shall right to indemnification or other remedy based on the representations, warranties, covenants and agreements herein will not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred affected by an Indemnified Partyinvestigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing, with respect to which an indemnified party has the accuracy or have otherwise become subjectinaccuracy of or compliance with, exceeds $50,000any such representation, warranty, covenant or agreement. If The waiver of any condition based on the total amount accuracy of any representation or warranty, or on the performance of or compliance with any covenant or agreement, will not affect the right to indemnification or other remedy based on such damages exceeds $50,000representations, the Indemnified Party shall be entitled to be indemnified against warranties, covenants and compensated and reimbursed for the amount of such Damages exceeding $50,000agreements.

Limits on Indemnification. (a) The indemnification provided No claim may be asserted nor may any Action be commenced against any Party pursuant to this Article VIII, unless written notice of such claim or action is received by such Party describing in this Section 7 shall constitute reasonable detail the exclusive remedy for breach of representation facts and warranties in this Agreement, regardless of whether any claims or causes of action asserted circumstances with respect to the subject matter of such matters are brought claim or Action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or Action is based ceases to survive as set forth in contractSection 8.01, tort irrespective of whether the subject matter of such claim or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable action shall have occurred before or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time after such Indemnified Party has the right to be indemnifieddate. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to a SGA Warranty Breach (other provisions than an Excluded Warranty Breach), or a Purchaser Warranty Breach (other than an Excluded Warranty Breach) in respect of any Loss incurred or suffered by an Indemnified Party unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Parties equals or exceeds 1.5% of the Closing Purchase Price (the “Threshold”), after which the Indemnifying Parties shall be liable for all Losses (including those incurred in reaching the Threshold); (ii) the maximum aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Parties arising out of or resulting from all SGA Warranty Breaches (other than Excluded Warranty Breaches or, without duplication, Tax Losses under Section 6.02), or all Purchaser Warranty Breaches (other than Excluded Warranty Breaches), shall, with respect to the indemnification obligations of the Purchaser, be an amount equal to (A) 12.5% of the Closing Purchase Price and (B) with respect to the indemnification obligations of any Seller, be an amount equal to 12.5% of such Seller’s Purchase Price Percentage of the Closing Purchase Price; (iii) in no event shall (A) the aggregate liability under this Article VIII or Section 6.02, of the Purchaser, on the one hand, or the Sellers or the SGA Companies, on the other hand, exceed an amount equal to the Purchase Price and (B) the aggregate liability of any Seller exceed an amount equal such Seller’s Purchase Price Percentage times the Purchase Price; and (iv) neither the Purchaser nor the Sellers shall have any liability under any provision of this Agreement for (A) any punitive or exemplary damages relating to the breach or alleged breach of this Agreement, no party shall be liable under this Section 7 for an amount except to the extent, if any, that any extent such damages giving rise are awarded to a third party in respect of a Third Party Claim (and such amount results from a failure on amounts are actually paid by the part of the applicable Indemnified Party to exercise good faith such third party) or (B) Losses or Tax Losses taken into account in not jeopardizing or prejudicing the interests final calculation of the Indemnifying PartyFinal Adjustment Amount. (c) No Indemnified Party Losses and Tax Losses shall seek or not be entitled subject to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Article VIII or Section 7, nor shall it accept payment of any award or judgment for such indemnification 6.02 to the extent that of any insurance or other third party recoveries actually received by an Indemnified Party from an unaffiliated third party in respect of such award or judgment includes Losses, net of the cost of recovery of such party’s incidental, indirect or consequential damages or damages for lost profitsamounts (including increases in insurance premiums to the extent relating to such Losses) realized by such Indemnified Party. (d) All damages to which If an Indemnified Party may be entitled receives any payment from an Indemnifying Party in respect of any Losses or Tax Loss pursuant to the provisions of this Article VIII or Section 7 shall be net of any insurance coverage with respect thereto 6.02 and any tax benefits realizable by the Indemnified PartyParty could have recovered all or a part of such Losses or Tax Loss from a third party (a “Potential Contributor”) based on the underlying claim giving rise to the payment of such Losses or Tax Loss, the Indemnified Party shall, to the extent the Indemnified Party has the legal right to do so, assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment. (e) The Indemnifying Party Losses and Tax Losses shall not be required to make reduced by any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred net Tax benefit which is actually realized by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000, the Indemnified Party shall be entitled to be indemnified in cash or as a credit against and compensated and reimbursed for otherwise immediately payable tax, as determined in each case by the amount Indemnified Party in its sole discretion, by virtue of, or with respect to, the payment of the loss or expense resulting in such Damages exceeding $50,000Loss or Tax Loss.

Limits on Indemnification. (a) The indemnification provided in this Section 7 shall constitute the exclusive remedy for breach of representation and warranties in this Agreement, regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right to be indemnified. (b) Notwithstanding any other provisions of this Agreement, no party shall be liable under this Section 7 for an amount to the extent, if any, that any damages giving rise to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party. (c) No Indemnified Party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Section 7, nor shall it accept payment of any award or judgment for such indemnification to the extent that such award or judgment includes such party’s incidental, indirect or consequential damages or damages for lost profits. (d) All damages to which an Indemnified Party may be entitled pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by the Indemnified Party. (e) The An Indemnifying Party shall not be required to indemnify any Indemnified Parties to the extent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from any bad faith, gross negligence or willful misconduct to the extent occurring after the Closing of any Indemnified Parties. (b) The amount of any Losses subject to indemnification under this Article 10 shall be reduced by the amounts of any insurance proceeds actually received by the Indemnified Parties in connection therewith (net of any collection costs, including any reasonable out of pocket expenses incurred in obtaining such recovery, any deductible under any insurance policy and any costs or expenses attributable to increases in insurance premiums resulting from such claims, including retroactive premium adjustments and all other costs resulting therefrom or arising in connection therewith), and any actual prior or subsequent contribution or other payments or recoveries of a like nature by the Indemnified Parties from any Third (c) An Indemnified Party shall not be entitled under this Agreement to multiple recoveries for the same Losses against all or any other parties. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO INDEMNIFIED PARTY SHALL BE ENTITLED UNDER THIS ARTICLE 10 TO RECOVER FROM THE INDEMNIFYING PARTY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING ANY DAMAGES ON ACCOUNT OF DIMINUTION IN VALUE, LOST PROFITS OR OPPORTUNITIES OR LOST OR DELAYED BUSINESS BASED ON VALUATION METHODOLOGIES ASCRIBING A DECREASE IN VALUE TO THE COMPANY GROUP, ON THE BASIS OF A MULTIPLE OF A REDUCTION IN A MULTIPLE-BASED OR YIELD-BASED MEASURE OF FINANCIAL PERFORMANCE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, AT LAW, IN EQUITY OR OTHERWISE, AND WHETHER OR NOT ARISING FROM A PARTY’S OR ANY OF ITS AFFILIATES’ SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT, EXCEPT IN EACH CASE TO THE EXTENT ANY OF THE FOREGOING ARE DETERMINED BY A JUDGE OF COMPETENT JURISDICTION TO (X) ARISE IN CONNECTION WITH A BREACH OF SECTION 6.6 OR (Y) BE DIRECT OR FORESEEABLE DAMAGES OR LOSSES AND ARE PAYABLE TO A THIRD PERSON WITH RESPECT TO A THIRD-PARTY CLAIM, IN WHICH CASE ANY SUCH DAMAGES SHALL BE CONSIDERED PART OF LOSSES AND BE COVERED BY THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE 10, AS APPLICABLE; PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATIONS ON DAMAGES SHALL BE SOLELY APPLICABLE TO CLAIMS OR LOSSES FOR WHICH AN INDEMNIFIED PARTY IS ENTITLED TO RECOVERY FROM AN INDEMNIFYING PARTY UNDER SECTION 10.2 AND SHALL NOT LIMIT (i) ANY RIGHT OF RECOVERY TO WHICH AN INDEMNIFIED PARTY IS ENTITLED UNDER THE REPRESENTATION AND WARRANTY INSURANCE POLICY OR (ii) ANY CLAIM FOR FRAUD. (e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY APPLICABLE LAW TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED BY EACH OF THE PARTIES THAT EACH PARTY’S AFFILIATES, AND THE REPRESENTATIVES OF EACH PARTY AND EACH PARTY’S AFFILIATES, SHALL NOT HAVE (A) ANY PERSONAL LIABILITY TO ANY BUYER INDEMNIFIED PARTY OR SELLER INDEMNIFIED PARTY OR ANY OTHER PERSON UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER OR NOT AS A RESULT OF THE BREACH OF ANY REPRESENTATION, (f) Seller ▇▇▇▇▇▇ agrees that it will not make any claim for indemnification payment against Buyer or any Company Group Member by reason of the fact that Seller or any of its Affiliates or Representatives was a controlling person, director, manager, employee, or representative of the applicable Company Group Member or was serving as such for another Person at the request of either Company Group Member (whether such claim is for Losses of any kind or otherwise and whether such claim is pursuant to any Law, Organizational Document, contractual obligation, or otherwise) with respect to any Losses for which the Buyer Indemnified Parties are entitled to indemnification from Seller pursuant to this Section 7 until such time as Agreement or that is based on any facts or circumstances that form the total amount basis of all damages that have been directly or indirectly suffered or incurred a claim by an a Buyer Indemnified PartyParty hereunder, and ▇▇▇▇▇▇ expressly waives any right of subrogation, contribution, advancement, indemnification, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If other claim against Buyer and the total amount of such damages exceeds $50,000, the Indemnified Party shall be entitled to be indemnified against and compensated and reimbursed for the amount of such Damages exceeding $50,000Company Group with respect thereto.

Limits on Indemnification. (a) The indemnification No Indemnifying Party shall be responsible to indemnify any Indemnitee under this Agreement unless the Indemnitee shall have provided in this Section 7 shall constitute the exclusive remedy for breach Indemnifying Party with the appropriate notice of representation and warranties in this Agreement, regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions Claim within the appropriate period of survival specified in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right to be indemnified6.1 above. (b) Notwithstanding any other provisions Anything in this Agreement to the contrary notwithstanding, the amount of this Agreement, no party Losses for which Seller shall be liable under this Section 7 for an amount to indemnify any Indemnitee shall be net of any realized income tax benefit to the extent, if any, that any damages giving rise to Indemnitee resulting from such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying PartyLosses. (c) No Indemnified Anything in this Agreement to the contrary notwithstanding, any Losses owing from an Indemnifying Party to an Indemnitee under this Agreement shall seek be reduced to the extent to which the Indemnitee actually receives any proceeds of any insurance policy that are paid with respect to the matter or occurrence that gave rise to the indemnification Claim. Each party covenants and agrees that all insurance policies maintained by it shall contain waiver of subrogation provisions with respect to the other party to this Agreement. Without limiting the foregoing, no Indemnitee shall be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification from Seller with respect to Losses attributable to a matter that would be covered by the Tail if a Claim were properly made under this Section 7, nor shall it accept payment of any award or judgment for such indemnification the Tail to the extent that such award or judgment includes such party’s incidentalinsurer providing the Tail, indirect or consequential damages or damages for lost profitsunless all Claims which may be made under the Tail have first been properly made. (d) All damages Seller shall have no obligation to which an Indemnified Party may be entitled pursuant to indemnify Indemnitee: (i) unless and until the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable by the Indemnified Party. (e) The Indemnifying Party shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total aggregate amount of Losses for which all damages that have been directly or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages Indemnitees are seeking indemnification from Seller exceeds $50,000, the Indemnified Party in which event Indemnity shall be entitled to be indemnified against and compensated and reimbursed for all such Losses, or (ii) to the extent that the aggregate amount of all Losses for which all Indemnitees are seeking or have received indemnification from Seller exceeds the amount of the Purchase Price actually paid to Seller under this Agreement, including, without limitation, payments of the principal amount of the Buyer Note. (e) Notwithstanding any other provision of this Agreement, and in addition to any other rights and remedies available to Buyer, Seller and the Shareholders, jointly and severally, acknowledge and agree that Buyer shall have the right of set-off and reduction ("Set-Off") against the Buyer Note and against any other amounts owed to either Seller or each Shareholder by Buyer or any of its Affiliates in respect of all Losses with respect to which Buyer is entitled to indemnification under this Article VI. If Buyer elects to exercise its right of Set-Off pursuant to the provisions of the immediately preceding sentence, Buyer shall give written notice thereof to Seller and Escrow Agent (as such Damages exceeding $50,000term is defined in the Escrow Agreement) specifying the nature and amount of such Claim, the obligation(s) owing to Seller and/or the Shareholders against which the Set-Off is being exercised and that Buyer has exercised its right of Set-Off and, concurrently with the giving of such notice, Buyer shall deposit with the Escrow Agent a sum equal to the amount of the Set-Off.

Limits on Indemnification. Notwithstanding anything to the contrary contained in this Agreement, (a) The indemnification provided Seaboard shall only be liable for ConAgra Losses arising hereunder to the extent that any such ConAgra Losses exceed in this Section 7 the aggregate, Four Million Dollars ($4,000,000) (the "Basket Amount") and such liability shall constitute be only for amounts, which, in the exclusive remedy for breach aggregate, are in excess of representation and warranties in this Agreement, regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoeverthe Basket Amount; provided, however, that only in the case of ConAgra Losses arising under or pursuant to any Seaboard Surviving Matters or any matter constituting fraud, intentional misrepresentation or criminal activity under applicable law by Seaboard Entities shall not be subject to the Basket Amount and there shall be no "threshold amount" on the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach obligations of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal Seaboard with respect to 50% of the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as of the time such Indemnified Party has the right to be indemnified.ConAgra Losses; and (b) Notwithstanding any other provisions of this AgreementSeaboard aggregate liability for all ConAgra Losses, no party and ConAgra aggregate liability for all Seaboard Losses, shall be liable under this Section 7 for not exceed an amount equal to one-half (1/2) of the Purchase Price (the "Maximum Amount"); provided however, that ConAgra Losses arising under or pursuant to the extentlast sentence of Section 8.16, if anySection 8.26, that any damages giving rise Section 23 and matters constituting fraud, intentional misrepresentation or criminal activity under applicable law by Seaboard or the Seaboard Subsidiaries, shall not be subject to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying PartyMaximum Amount. (c) No Indemnified Party shall seek or be entitled With respect to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification hereunder by ConAgra involving a defect in Seaboard's or the Seaboard Subsidiaries' title to any parcel of real estate included in the Assets or Seaboard Kentucky's title to any parcel of real estate owned by it on the Closing Date, ConAgra agrees to first file and pursue a claim against Lawyers Title Insurance Company under this Section 7, nor shall it accept payment of any award or judgment for such indemnification the applicable title insurance policy obtained by ConAgra hereunder and to file and pursue a claim against Seaboard only to the extent that such award or judgment includes claim is not covered under such party’s incidentaltitle insurance policy. In addition, indirect or consequential damages or damages for lost profits. (d) All damages notwithstanding anything in this Agreement to which an Indemnified Party may the contrary, any claim hereunder by ConAgra involving a defect in the Seaboard Entities' title to any parcel of real estate shall be entitled based upon, and limited to, the title representation and covenants made to ConAgra in the Deeds delivered by Seaboard and the Seaboard Subsidiaries pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and any tax benefits realizable 6.2.1 hereof, if transferred by the Indemnified Party. (e) The Indemnifying Party shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or indirectly suffered or incurred by an Indemnified PartyDeeds, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If under the total amount of such damages exceeds $50,000, the Indemnified Party shall be entitled to be indemnified against and compensated and reimbursed for the amount of such Damages exceeding $50,000Agreement if not transferred by Deeds.

Limits on Indemnification. (a) The indemnification provided in this Section 7 shall constitute the exclusive remedy for breach of representation and warranties in this Agreement, regardless of whether any claims or causes of action asserted Buyer's remedies with respect to such matters are brought Losses specified in contractSection 6.2 shall be satisfied first by the assertion of its rights under the Escrow Agreement in respect of the Escrow Funds; PROVIDED, tort or any other legal theory whatsoever; provided, howeverHOWEVER, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall be equal to 50% of if the aggregate amount of all payments actually received by SELLER pursuant to Section 1.3 of this Agreement as such Losses shall be in excess of the time amount of the Escrow Funds or if such Indemnified Party has Losses shall arise after termination or expiration of the right Escrow Agreement, then the Seller, FRE, R&B, the Shareholders and the Members shall be obligated to be indemnifiedindemnify Buyer in respect of all Losses not satisfied by delivery to Buyer of Escrow Funds to the extent provided in this Article VI. (b) Notwithstanding In the event that any other provisions Order of this Agreementany Governmental Body shall have been issued in favor of Buyer (or its assignees) against Seller, no party shall be liable under this Section 7 for an amount FRE, R&B or any Principal with respect to the extentindemnification of Buyer's Losses hereunder, if anyBuyer shall enforce such Order first against Seller or FRE (with respect to Orders against Seller, that FRE or any damages giving rise Shareholder only) or R&B (with respect to such amount results from a failure on the part of the Indemnified Party to exercise good faith in not jeopardizing Orders against R&B or prejudicing the interests of the Indemnifying Party. (cany Member only) No Indemnified Party shall seek or be entitled to incidentaland then, indirect or consequential damages or damages for lost profits in any claim for indemnification under this Section 7, nor shall it accept payment of any award or judgment for such indemnification to the extent that Buyer has not received payment for such award Losses from Seller, FRE or judgment includes such party’s incidentalR&B, indirect or consequential damages or damages for lost profits. any Shareholder (d) All damages to which an Indemnified Party may be entitled pursuant to the provisions of this Section 7 shall be net of any insurance coverage with respect thereto and to Orders against Seller, FRE or any tax benefits realizable by the Indemnified Party. Shareholder only) or any Member (ewith respect to Orders against R&B or any Member only) The Indemnifying Party PROVIDED, HOWEVER, that if Buyer shall not (after diligent efforts) be required able to make any indemnification payment pursuant to this Section 7 until enforce fully such time as Order against Seller, FRE or R&B within 12 months after the total amount of all damages that have been directly or indirectly suffered or incurred by an Indemnified Party, or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount date of such damages exceeds $50,000Order, the Indemnified Party Buyer shall be entitled to enforce such Order against any such Shareholder (with respect to Orders against Seller, FRE or any Shareholder only) or any Member (with respect to Orders against R&B or any Member only). Notwithstanding the foregoing, any Buyer Losses in respect of the sales and use tax dispute described on SCHEDULE 2.13 shall be indemnified against and compensated and reimbursed for fully indemnifiable without regard to the provisions hereof relating to the Stipulated Amount and, in the event Seller or Shareholders indemnify Buyer with respect to such Losses, the amount of such Damages exceeding $50,000Losses shall not be included in the calculation of the Stipulated Amount. Notwithstanding anything to the contrary in this Agreement, the Shareholders and the Members shall be primary obligors together with Seller and the General Partners and shall not be deemed as sureties or guarantors of the obligations of Seller or the General Partners pursuant to Article VI, and in furtherance thereof the Shareholders and Members specifically acknowledge that they are not entitled to exercise and do hereby waive any rights or defenses available to a surety or guarantor by reason of Sections 2787-2855 (inclusive) of the California Civil Code, and any rights or defenses arising out of an election of remedies by Buyer.