Common use of Maximum Claims Clause in Contracts

Maximum Claims. (i) The maximum aggregate amount and the sole and exclusive source of recovery in respect of indemnifiable Losses that may be recovered by the Buyer Indemnified Persons from the Sellers arising out of or relating to the causes set forth in Section 8.2(a) shall be the amount of the Indemnity Escrow Amount; (ii) The maximum aggregate amount and the sole and exclusive source of recovery in respect of indemnifiable Losses that may be recovered by the Buyer Indemnified Persons from the Sellers arising out of or relating to the causes set forth in Section 8.2(b) and (c) shall be the amount of the Adjustment Escrow Amount plus, following the exhaustion or distribution in accordance with the terms of this Agreement of all amounts available under the Adjustment Escrow Fund, the amount remaining, at any given time, in the Indemnity Escrow Fund; and (iii) The maximum aggregate amount of indemnifiable Losses that may be recovered by the Seller Indemnified Persons from the Buyer, arising out of or relating to the causes set forth in Section 8.3, shall be an amount equal to $14,000,000; provided that the foregoing clauses (i), (ii) and (iii) shall not apply to Losses arising out of or relating to fraud or criminal actions; provided further, that, the foregoing clauses (i) and (ii) shall not apply to Losses arising under the representations and warranties of the Sellers contained in the Stockholder Consent. For the avoidance of doubt, except with respect to (x) Losses arising out of or relating to fraud or criminal actions of such Seller or (y) obligations of such Seller contained in the applicable Stockholder Consent, in no event shall any Seller be directly liable to the Buyer Indemnified Persons under this Agreement under any circumstances, and upon the final release of all funds from the Adjustment Escrow Fund and the Indemnity Escrow Fund, the Buyer Indemnified Persons shall have no further recourse (directly or indirectly) against the Sellers, their respective Affiliates or any of their assets, properties or businesses. In furtherance of the foregoing, and notwithstanding anything to the contrary set forth in this Agreement, in no event shall any Seller be liable (other than with respect to fraud or criminal conduct by such Seller) under any Transaction Document or under the Stockholder Consent for an amount in excess of the amount actually received by such Seller in connection with the Transactions contemplated under this Agreement.

Maximum Claims. In respect of any claim to the extent that the aggregate amount of the liability of the Vendor for all claims made under this Agreement and the Deed of Indemnity would exceed 100 per cent. of the Initial Consideration. 9.5.1 The Vendor shall be under no liability in respect of a breach of any of the Warranties or to indemnify under the Deed of Indemnity as aforesaid unless the Vendor shall have received written notice from the Purchaser prior to the date falling two months after the end of the Third Contingent Payment Period ("14 Month Date") in respect of the Warranties and prior to the sixth anniversary from the date of this Agreement in respect of the Deed of Indemnity, giving full details of the relevant claim and any such claim shall (if not previously satisfied, settled or withdrawn) be deemed to have been waived at the expiration of 6 months after the 14 Month Date or the sixth anniversary of the date of this Agreement (as the case may be) unless proceedings in respect thereof shall then have been commenced against the Vendor. 9.5.2 The Vendor shall be under no liability in respect of any claim for breach of the Warranties or to indemnify under the Deed of Indemnity as aforesaid:- (a) if such liability would not have arisen but for something voluntarily done or omitted to be done (other than pursuant to a legally binding commitment created on or before Completion) by the Purchaser or the Company or the Subsidiaries after Completion and otherwise than in the ordinary course of business; (b) to the extent that a note, provision, allowance or reserve in respect thereof was made in the Relevant Accounts; (c) to the extent that such claim would not have arisen but for a change in the accounting treatment of assets and liabilities or of the tax attributable to timing differences (including capital allowances) in future accounts of the Group Companies or but for any other change in the accounting bases upon which the Group Companies prepare their future accounts, not being a change which is dictated by generally accepted accounting principles or the agreed basis of accounting referred to in Clause 4.4; 21 (d) to the extent that such claim relates to any loss for which the Purchaser or any of the Group Companies is actually indemnified by insurance or for which it would have been so indemnified if at the relevant time it had maintained insurance cover of a type which is valid and in force in relation to any of the Group Companies at the date of this Agreement; and (e) if such liability would not have arisen but for a change in any legislation made after Completion or a change in the interpretation of the law after Completion or if such liability would not have arisen but for any judgment delivered after Completion. 9.5.3 The parties agree as follows (by way of covenant only and not as a condition precedent to the Purchaser being able to assert a claim):- (i) The maximum aggregate amount Purchaser shall procure that notice is given to the Vendor of the relevant facts of any claim under the Warranties or the Deed of Indemnity as soon as reasonably practicable and in no event any later than thirty (30) days after the sole and exclusive source Purchaser becomes aware thereof in reasonable detail. (ii) In the event that the Purchaser or any of recovery the Group Companies is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of indemnifiable Losses any matter or event which gives rise to a claim against the Vendor hereunder, the Purchaser shall use, or procure that may be the Group Companies shall use, all reasonable endeavours to recover such sum before making the claim, and any sum recovered by the Buyer Indemnified Persons from the Sellers arising out of or relating to the causes set forth in Section 8.2(a) shall be will reduce the amount of the Indemnity Escrow Amount; (ii) The maximum aggregate amount and claim, and, in the sole and exclusive source event of the recovery being made after the claim has been satisfied by the Vendor, the Purchaser shall account to the Vendor in respect of indemnifiable Losses that may be any amount so recovered (after deduction of all reasonable costs and expenses of the recovery insofar as reasonably attributable to the amount paid by the Buyer Indemnified Persons from Vendor in respect of the Sellers arising out of or relating claim) up to the causes set forth in Section 8.2(b) and (c) shall be the amount of the Adjustment Escrow Amount plus, following the exhaustion or distribution in accordance with the terms of this Agreement of all amounts available under the Adjustment Escrow Fund, the amount remaining, at any given time, in the Indemnity Escrow Fund; andclaim. (iii) The maximum aggregate amount In the event that a claim against the Vendor arises as a result of indemnifiable Losses or in connection with a liability to or a dispute with any third party, no such liability or dispute shall be admitted, settled or discharged without the written consent of the Vendor (which shall not be unreasonably withheld or delayed) and the Purchaser shall (provided that it is indemnified to its reasonable satisfaction by the Vendor against any costs, expenses, liabilities, penalties, and fines which may be recovered incurred by the Seller Indemnified Persons from Purchaser and the BuyerGroup Companies in taking such action) take and shall procure that the Group Companies shall take such action to avoid, arising out dispute, resist, appeal, compromise or contest such liability or dispute as may be reasonably requested by the Vendor provided that neither the Purchaser nor any Group Company shall be required to take any steps which would require any admission of guilt or liability relating to matters connected with the causes set forth claim in Section 8.3question nor, in the event that the Purchaser objects to the taking of such action so requested on the grounds of the merits of the claim, shall they be an amount equal required to $14,000,000; take any such action unless the Vendor shall have produced to them a leading barrister's opinion that such action is reasonable. 22 (iv) Where and to the extent that there are available to the Group Companies any reliefs, rights of repayment or other rights or claims of a similar nature to set against or otherwise mitigate any liability arising from any claim for tax and such reliefs, rights of repayment or other rights or claims have not been taken into account in the Relevant Accounts and arose wholly or mainly by reason of any act, omission or transaction of the Group Companies before the date of Completion, credit for any such reliefs, rights of repayment or other rights or claims shall be given to the Vendor against any liability in respect of a claim for tax provided that and to the foregoing clauses (i)extent that such reliefs, (ii) and (iii) shall not apply rights of repayment or other rights or claims of a similar nature are available to Losses arising out of or relating to fraud or criminal actions; provided further, that, offset the foregoing clauses (i) and (ii) shall not apply to Losses arising under the representations and warranties tax liability of the Sellers contained in the Stockholder Consent. For the avoidance of doubt, except with respect to Group Companies after Completion. (xv) Losses arising out of In assessing any damages or relating to fraud or criminal actions of such Seller or (y) obligations of such Seller contained in the applicable Stockholder Consent, in no event shall any Seller be directly liable to the Buyer Indemnified Persons other amounts recoverable under this Agreement under there shall be taken into account the value of any circumstances, and upon additional benefit accruing to the final release of all funds from Purchaser or the Adjustment Escrow Fund and the Indemnity Escrow Fund, the Buyer Indemnified Persons shall have no further recourse (directly or indirectly) against the Sellers, their respective Affiliates or any of their assets, properties or businesses. In furtherance Group Companies in consequence of the foregoing, and notwithstanding anything matter or circumstances giving rise to the contrary set forth claim pursuant to which the damages or such other amounts arose (not being a benefit which the Group Companies would have enjoyed had such matter or circumstance not arisen). (vi) In calculating the liability of the Vendor in this Agreementrespect of any claim credit will be given to the Vendor to the extent that any provision for tax proves to have been an over provision in the Relevant Accounts. 9.5.4 If the Purchaser or the Group Companies are entitled to make a claim both under the Warranties and under the Deed of Indemnity, in no event then either the Purchaser or the Group Companies shall any Seller be liable (other than with respect to fraud or criminal conduct by such Seller) make the said claim either under any Transaction Document the Warranties or under the Stockholder Consent for an amount Deed of Indemnity, but not both, in excess respect of the same liability, and the Vendor shall not be liable for more than the full amount actually received by of such Seller in connection with the Transactions contemplated under this Agreementliability.