Specific Limitations. The Purchasers shall not be entitled to claim against the Sellers: (a) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim exceeds (E)100,000 (one hundred thousand euros). For this purpose, if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance; (b) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Sellers under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(a) (Specific Limitations) above) exceeds a threshold of (E)5,000,000 (five million euros) in which event, the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded; (c) with respect to a claim under the Environmental Warranties relating to all Disclosed Environmental Matters unless and until the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price ; (d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Environmental Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance; (e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded; (f) with respect to a claim under the Warranties, in respect of any matters disclosed or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter; (g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the written request of or with the written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give rise to a breach of the Warranties or any other provision of this Agreement; (h) if and to the extent that: (i) with respect to a claim under the Warranties, the claim would not have arisen but for any act, omission, transaction or arrangement (or any combination of any of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them or any member of the 141 Purchasers' Group or any successor in title to the Shares or their respective directors, employees or agents other than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirement; (ii) with respect to a claim under the Warranties, the claim would not have arisen but for any change in the accounting policy or practice of the Companies, the Subsidiaries or any of them having effect after Completion except where such change is reasonably necessary to enable the Company, the Subsidiaries or any of them to comply with generally accepted accounting principles at the date of Completion in the place of incorporation of that Company or Subsidiary; (iii) with respect to a claim under the Warranties, the claim arises or is increased as a result of the passing of, or any change in or any change in the interpretation of, any law, rule, regulation or administrative practice of any government, government department, local or state agency, authority regulatory or fiscal body after the date the relevant Warranties are given; (iv) with respect to a claim under the Warranties or any other provision of this Agreement, the claim arises or is increased as a result of the Purchasers, the Companies, the Subsidiaries or any of them not complying with its obligations under this Agreement (including, without limitation, the provision of paragraph 1 of this Schedule 5); (v) with respect to a claim under the Warranties or any other provision of this Agreement to the extent the damage, liability or loss suffered or incurred by the Purchasers, the Companies, the Subsidiaries or any of them has been made good or has been otherwise compensated for without cost to the Purchasers, the Companies, the Subsidiaries or any of them; (vi) with respect to a claim under the Warranties, specific provision is made in the Consolidated Accounts or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claim. For the avoidance of doubt, specific provisions for the purposes of this Paragraph 3(h)
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Specific Limitations. The Purchasers Save in respect of any claims under the Representations and Warranties which arise because of fraud, dishonesty or deliberate non-disclosure by the Vendors or in respect of the Representations and Warranties at clause and 2.3(c) and 2.29(d), the following limitations shall not be entitled to claim against the Sellersapply:
(a) No liability shall in any event arise in respect of any claim for breach of the Representations and Warranties unless the loss thereby sustained (together with the aggregate amount of losses sustained from any previous claims if any) exceeds a total sum of A$29,750 and, in addition, the loss sustained under each individual claim to be counted towards the total sum referred to above must exceed A$4,760.
(b) The aggregate liability of the Vendors in respect of all claims for breach of the Representations and Warranties shall not exceed A$2,975,000.
(c) Subject to Section 8.4(b), a liability that arises in respect of any claim for breach of the Representations and Warranties shall be for the whole of the loss sustained.
(d) No claim shall be brought by the Purchaser or either Company against the Vendors in respect of any breach of the Representations and Warranties unless notice in writing of such claim specifying in reasonably sufficient detail the nature of the breach has been given to the Vendors on or prior to:
(i) the 6th anniversary of the date hereof in respect of claims relating to Tax; and
(ii) the third anniversary of the date hereof in respect of all other claims, each date being the relevant "Claim Date".
(e) Any claim which has been made before the relevant Claim Date shall if it has not been previously satisfied or settled or withdrawn be deemed to have been withdrawn and shall become fully barred and unenforceable on the expiry of 7 months commencing on the relevant Claim Date unless proceedings in respect thereof have been instituted, issued and served upon the Vendors.
(f) Dove, Microtronics or the Purchaser as the case may be shall reimburse the Vendors an amount equal to any sum paid by the Vendors to the Purchaser, Dove or Microtronics arising out of any specific breach of the Representations and Warranties to the extent to which it is subsequently recovered by or paid in full to Dove, Microtronics or the Purchaser by any third party. Such reimbursement will be net of all expenses (including tax costs) incurred by the Purchaser in recovering such amount.
(g) No liability shall arise to the Purchaser or to either Company and neither the Purchaser nor either Company shall have any claim whatsoever against the Vendors or either of them in respect of breach of the Representations and Warranties:
(i) if and to the extent that such breach or claim occurs as a result of any legislation not in force at the date hereof or which takes effect retrospectively or occurs as a result of any increase in the rates of taxation in force at the date hereof; or
(ii) to the extent:
(A) that the Company actually claims and receives indemnity against any loss or damage suffered by the Company arising out of such specific breach or claim under the Warranties, save terms of any insurance policy;
(B) that any allowance or provision has been made in relation to any the accounts of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable from the Sellers Company in respect of the matter to which such liability relates;
(h) Neither the Purchaser nor either Company shall be entitled to claim exceeds (E)100,000 (one hundred thousand euros). For this purpose, if a claim relates to more than one event that any fact or circumstance which would separately constitute constitutes a breach of any of the Representations or Warranties if such fact or any other provision of circumstance has been fully, fairly and specifically disclosed in this Agreement that claim shall be treated as a separate claim or in respect of each event or circumstance;
(b) with respect to a claim under the Warranties, save in relation to any of the Warranties set out Schedules hereto or in Paragraphs 2 the Disclosure Schedule.
(Shares and Share Capital), 17 (Taxation Matters), 19 (Environmenti) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until Neither the amount (excluding interest and costs) that would Purchaser nor either Company shall be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Sellers under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(a) (Specific Limitations) above) exceeds a threshold of (E)5,000,000 (five million euros) in which event, the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(c) with respect to a claim under the Environmental Warranties relating to all Disclosed Environmental Matters unless and until the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers recover damages in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price ;
(d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a for breach of any of the Environmental Representations or Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event otherwise obtain reimbursement or circumstance;
(e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable restitution more than once in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of any matters disclosed misrepresentation or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the written request of or with the written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give rise to a specific breach of the Warranties Representations or any other provision of this Agreement;Warranties.
(hj) if and If any claim comes to the extent thatnotice of the Purchaser or either Company by reason or in consequence of which the Vendors may be liable under the Representations or Warranties the Purchaser shall or shall procure that the Company shall:
(i) with respect to a claim under the Warranties, the claim would not have arisen but for any act, omission, transaction or arrangement (or any combination of any of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them or any member of the 141 Purchasers' Group or any successor in title as soon as reasonably practicable give written notice thereof to the Shares or their respective directors, employees or agents other than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirementVendors;
(ii) not make any admission of liability, agreement or compromise in relation thereto without the prior agreement of the Vendors;
(iii) provide the Vendors and their professional advisers with respect reasonable access to the premises and personnel of the Purchaser and the Company and all associated documents and records whether in electronic format or otherwise;
(iv) in any event, if the Purchaser considers that it or the Company will or may make a claim under against the Warranties, Vendors the claim would not have arisen but Purchaser shall promptly notify the Vendors in writing giving reasonable particulars thereof and for any change in a period of 30 days after such notification shall afford the accounting policy Vendors the opportunity to take steps to remedy or practice avert such breach or potential breach.
(k) None of the Companies, Indemnitees shall have any claim whatsoever against the Subsidiaries or any of them having effect after Completion except where such change is reasonably necessary to enable the Company, the Subsidiaries Vendors or any of them to comply with generally accepted accounting principles at the date extent:
(i) of Completion the amount by which any Liability of the Companies has actually been overstated in the place Unaudited Interim Balance Sheets less the amount by which any other Liability has actually been understated in the Unaudited Interim Balance Sheets
(ii) of incorporation the amount by which any asset of that Company or Subsidiary;the Companies has actually been understated in the Unaudited Interim Balance Sheets less the amount by which any other asset has actually been overstated in the Unaudited Interim Balance Sheets
(iii) that any allowance or provision has been made in the Unaudited Interim Balance Sheets in respect to the matter to which such Liability relates or such matter was taken into account in computing the amount of any such allowance, provision or reserve
(iv) that the breach would not have arisen or would have been reduced or eliminated but for any winding up or cessation after Closing of any trade or business carried on by either of the companies.
(l) All amounts available for setoff or otherwise liable to be deducted pursuant to this Agreement shall first be taken into account for the purposes of determining the amount of loss sustained in connection with the de minimis limits referred to herein.
(m) For the purposes of Section 8.4(k)(i), no amount may be subtracted in respect of a Liability which has been subject to a claim under this Agreement and no amount which has been subtracted in respect of a Liability may thereafter be the Warranties, the subject of a claim arises or is increased as a result of the passing of, or any change in or any change in the interpretation of, any law, rule, regulation or administrative practice of any government, government department, local or state agency, authority regulatory or fiscal body after the date the relevant Warranties are given;under this Agreement.
(ivn) with For the purposes of Section 8.4(k), no amount may be subtracted in respect of an asset which has been subject to a claim under the Warranties or any other provision of this Agreement, the claim arises or is increased as a result of the Purchasers, the Companies, the Subsidiaries or any of them not complying with its obligations under this Agreement (including, without limitation, and no amount which has been subtracted in respect of an asset may thereafter be the provision subject of paragraph 1 of this Schedule 5);
(v) with respect to a claim under the Warranties or any other provision of this Agreement to the extent the damage, liability or loss suffered or incurred by the Purchasers, the Companies, the Subsidiaries or any of them has been made good or has been otherwise compensated for without cost to the Purchasers, the Companies, the Subsidiaries or any of them;
(vi) with respect to a claim under the Warranties, specific provision is made in the Consolidated Accounts or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claim. For the avoidance of doubt, specific provisions for the purposes of this Paragraph 3(h)Agreement.
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Sources: Share Sale and Purchase Agreement (Asia Online LTD)
Specific Limitations. 3.1 The Purchasers Seller shall not be entitled to claim against the Sellershave no liability in respect of:
(a) with respect circumstances fairly disclosed in this agreement or the Disclosure Letter (it being understood that the Buyer shall only be deemed to a claim under have knowledge of information disclosed in this agreement or in the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 Disclosure Letter); and
(Shares and Share Capital), 17 (Taxation Matters), 19 (Environmentb) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable anything arising from the Sellers implementation of this agreement.
3.2 The Seller shall have no liability in respect of a Claim to the claim exceeds extent that it occurs or is increased solely as a result of:
(E)100,000 (one hundred thousand euros). For a) any increase in rates of Tax occurring after the date of this purposeagreement or any legislation or law not in force at the date of this agreement including, if without limitation, any legislation taking effect retrospectively or a claim relates to more than one event change in interpretation of law or circumstance which would separately constitute a breach any change in the published practice of or withdrawal of any of published extra-statutory concession by a Taxation Authority after the Warranties or any other provision date of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstanceagreement;
(b) with respect to a claim under change after the Warranties, save Accounts Date:
(i) in relation to any generally accepted accounting practices (other than a restatement of the Warranties set out in Paragraphs 2 Company’s historic accounts to make them compliant with Generally Accepted Accounting Principles if they were not compliant prior to Completion; or
(Shares and Share Capital), 17 (Taxation Matters), 19 (Environmentii) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect accounting reference date of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Sellers under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(a) (Specific Limitations) above) exceeds a threshold of (E)5,000,000 (five million euros) in which event, the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;Company; or
(c) (with respect regard to an increase only) a claim under breach of this agreement or the Environmental Warranties relating to all Disclosed Environmental Matters unless and until Tax Deeds by a member of the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers Buyer’s Group.
3.3 The Seller shall have no liability in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price ;
(d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Environmental Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance;
(e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of any matters disclosed or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the written request of or with the written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give rise to a breach of the Warranties or any other provision of this Agreement;
(h) if and Claim to the extent that:
(ia) with respect the loss or damage giving rise to the Claim is recovered by the Buyer’s Group under any policy of insurance;
(b) a claim under the Warranties, the claim would not have arisen but for any act, omission, transaction or arrangement (or any combination of any of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them or any member of the 141 Purchasers' Buyer’s Group has recovered the loss or any successor in title damage giving rise to the Shares or their respective directors, employees or agents Claim from some other than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirementperson;
(iic) with respect the circumstances to a claim under which the WarrantiesClaim relates have been expressly reserved for or noted in, the claim would not have arisen but for any change in the accounting policy or practice of the Companies, the Subsidiaries or any of them having effect after Completion except where such change is reasonably necessary to enable the Company, the Subsidiaries or any of them to comply with generally accepted accounting principles at the date of Completion in the place of incorporation of that Company or SubsidiaryAccounts;
(iiid) with the breach in respect to a claim under of which the Warranties, Claim is made is remediable by the claim arises or Seller (unless the Seller is increased as a result given written notice by the Buyer of the passing of, or any change in or any change in circumstances to which the interpretation of, any law, rule, regulation or administrative practice Claim relates as soon as reasonably practicable and it is not remedied within 30 days of any government, government department, local or state agency, authority regulatory or fiscal body after the date on which the relevant Warranties are given;
(iv) with respect to a claim under the Warranties or any other provision of this Agreement, the claim arises or notice is increased as a result of the Purchasers, the Companies, the Subsidiaries or any of them not complying with its obligations under this Agreement (including, without limitation, the provision of paragraph 1 of this Schedule 5received);
(ve) with respect the quantum of such Claim has been included in the Adjustments or Agreed Errors under clauses 6.4, 6.5, 6.6 and 6.7; and
(f) the Buyer has recovered from the Seller’s Group pursuant to a claim under the Warranties or any other provision of specific indemnity contained in this Agreement to the extent the damageagreement including, liability or loss suffered or incurred by the Purchasers, the Companies, the Subsidiaries or any of them has been made good or has been otherwise compensated for without cost to the Purchasers, the Companies, the Subsidiaries or any of them;
(vi) with respect to a claim under the Warranties, specific provision is made in the Consolidated Accounts or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claim. For the avoidance of doubt, specific provisions for the purposes of this Paragraph 3(h)clauses 7.7, 7.8, 7.9, 7.10, 7.11 and 7.12.
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Specific Limitations. The Purchasers Shareholder shall have no liability to the Company and the Company shall not be entitled to have any claim whatsoever against the Sellers:
(a) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim exceeds (E)100,000 (one hundred thousand euros). For this purpose, if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance;
(b) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Sellers under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(a) (Specific Limitations) above) exceeds a threshold of (E)5,000,000 (five million euros) in which event, the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(c) with respect to a claim under the Environmental Warranties relating to all Disclosed Environmental Matters unless and until the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers Shareholder in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price ;
(d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount provisions of Section 2 above (excluding interest and costsa "Warranty Claim") that would be recoverable from the Sellers in respect of the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Environmental Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance;
(e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of any matters disclosed or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the written request of or with the written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give giving rise to a breach of the Warranties or any other provision of this Agreement;
(h) if and to thereto the extent that:
(i) with provision or allowance or reserve in respect thereof has been made in the Closing Balance Sheet or payment or discharge thereof has been taken into account in preparing such balance sheet or the matter to a claim under the Warranties, which the claim relates was specifically referred to in the note to such balance sheet;
(ii) it would not have arisen but for any change after Closing in the accounting policies or practices of the Corporation or in generally accepted accounting principles or in the tax reporting policies of the Corporation;
(iii) it occurs as a result of any legislation not in force at the date of Closing which takes effect retrospectively or occurs as a consequence of a change in the interpretation of the law or the practice or any taxation authority after the date hereof in the United Kingdom;
(iv) it would not have arisen but for any voluntary act, omission, transaction or arrangement (or any combination of any of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them or any member of the 141 Purchasers' Group or any successor in title to the Shares or their respective directors, employees or agents other Closing otherwise than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirementbusiness of the Corporation as at present carried on;
(iiv) with respect to a claim under the Warranties, the claim it would not have arisen but for any change in the accounting nature or conduct or any winding up or cessation after Closing of any trade or business carried on by the Corporation; and
(vi) the Corporation recovers under a policy or practice of insurance in respect of the Companiesloss or damage which gives rise to the Warranty Claim. If any liability of the Shareholder is in respect of a liability of the Corporation which is contingent when the Warranty Claim is notified to the Shareholder, then the Subsidiaries Shareholder shall not be obliged to make any payment in respect of the liability until such time as the contingent liability becomes an actual liability. If after Closing there comes to the notice of the Company any matter or any claim or event or thing which may constitute or give rise to a Warranty Claim, it shall be a condition of them having effect after Completion except where liability in respect of such change is reasonably necessary Warranty Claim that the Company shall:
(i) forthwith give written notice thereof to enable the Shareholder giving full details of the Warranty Claim so far as then known to the Company together with the Company, 's assessment of the Subsidiaries or any of them to comply with generally accepted accounting principles at amount that and the date on which the Company anticipates that the Shareholder will be required to make a payment in respect of Completion the Warranty Claim;
(ii) not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without the place prior agreement of incorporation of that Company the Shareholder (which shall not be unreasonably withheld or Subsidiary;delayed); and
(iii) with respect give the Shareholder and its professional advisers access to the premises, personnel and advisers of the Company and the Shareholder as may be relevant upon reasonable notice and during normal business hours and access to any relevant chattels, documents and records owned by or within the power or control of the Company and/or the Corporation or to which the Company or the Corporation has or can procure access so as to enable the Shareholder and its professional advisers to examine such chattels, accounts, documents and records and take extracts or photocopies thereof for the purpose of determining the nature and extent of the Warranty Claim and the steps that may be appropriate to remedy or avert it. Following the Company giving notice to the Shareholder of a claim under the WarrantiesWarranty Claim, the claim arises Company shall afford the opportunity to take such steps as the Shareholder considers reasonable to remedy or is increased as a result avert the Warranty Claim. The Shareholder may require the Company to give such information and assistance in connection with the affairs of the passing ofCorporation as the Shareholder may reasonably request to avoid, resist, appeal or compromise the Warranty Claim subject to the Shareholder's indemnifying the Company for itself and as trustee for the Corporation against all costs and expenses which it or they may properly incur in connection with such assistance. The Shareholder may request the Company or the Corporation to allow the Shareholder to take on or take over at its own expense the conduct of all proceedings of whatsoever nature arising in connection with the Warranty Claim subject to the Company's approval of the Shareholder's professional advisers, which approval shall not be unreasonably withheld or delayed. If the Shareholder takes on or takes over the conduct of proceedings, the Company shall, or shall procure that the Corporation shall, provide such information as the Shareholder may reasonably require in connection with the preparation for and conduct of such proceedings. Any settlement of a Warranty Claim the proceedings of which has been taken over by the Shareholder shall be subject to the prior written approval of the Company, which approval shall not be unreasonably withheld or delayed. Where the Company or Corporation is entitled to recover from some other person any change sums in respect of a Warranty Claim the Company shall or shall procure that the Corporation shall take such action as the Shareholder may reasonably request to enforce such recovery and any change amount so recovered shall be taken into account in determining the interpretation of, any law, rule, regulation or administrative practice liability of the Shareholder in respect of any government, government department, local or state agency, authority regulatory or fiscal body after the date the relevant Warranties are given;
(iv) with respect to a claim under the Warranties or any other provision of this Agreement, the claim arises or is increased as a result of the Purchasers, the Companies, the Subsidiaries or any of them not complying with its obligations under this Agreement (including, without limitation, the provision of paragraph 1 of this Schedule 5);
(v) with respect to a claim under the Warranties or any other provision of this Agreement related Warranty Claim subject to the extent the damage, liability or loss suffered or incurred by the Purchasers, the Companies, the Subsidiaries or any of them has been made good or has been otherwise compensated for without cost Shareholder's advancing to the Purchasers, Company all costs and expenses which the Companies, the Subsidiaries or any of them;
(vi) Company may incur in connection with respect to a claim under the Warranties, specific provision is made in the Consolidated Accounts or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claimsuch action. For the avoidance of doubt, specific provisions for nothing in this Agreement shall in any way restrict or limit the purposes general obligation at law of the Company to take reasonable steps to mitigate any loss or damage which it may suffer in consequence of any breach by the Shareholder of the terms of this Paragraph 3(hAgreement. If, before the Shareholder has made a payment in respect of a Warranty Claim, the Corporation or the Company shall recover (whether by payment, discount, credit or otherwise including from insurers or any taxation authority) any sum by reason of or in respect of the matter giving rise to the Warranty Claim they shall take such recovery (less any reasonable costs and expenses properly incurred in relation to such recovery) into account in determining the amount of the Warranty Claim. If the Shareholder shall have made any payment in respect of a Warranty Claim and the Corporation or the Company shall subsequently receive a benefit which was not taken into account in determining any liability of the Shareholder in respect of the Warranty Claim and which would have reduced such liability had the benefit been taken into account (including under any insurance) the Company (for itself or on behalf of the relevant company as the case may be) shall forthwith repay the Shareholder an amount equal to the lesser of:
(i) an amount corresponding to the benefit (including the amount of any such refund but, in all cases, after deduction of any reasonable costs or expenses properly incurred in such recovery as well as all taxation thereon); and
(ii) the payment by the Shareholder to the Company in respect of the Warranty Claim.
Appears in 1 contract
Sources: Shareholder Agreement (Dispatch Management Services Corp)
Specific Limitations. The Purchasers An Indemnifying Party shall not be entitled have any liability to claim against the SellersIndemnified Party under Article VIII of this Agreement to the extent any Losses arise from:
(a) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim exceeds (E)100,000 (one hundred thousand euros). For this purpose, if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance;
(b) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Sellers under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(a) (Specific Limitations) above) exceeds a threshold of (E)5,000,000 (five million euros) in which event, the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(c) with respect to a claim under the Environmental Warranties relating to all Disclosed Environmental Matters unless and until the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price ;
(d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Environmental Warranties or any other provision of this Agreement that claim shall be treated as a separate claim in respect of each event or circumstance;
(e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of any matters disclosed or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the written request of or with the written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give rise to a breach of the Warranties or any other provision of this Agreement;
(h) if and to the extent that:
(i) with respect to a claim under the Warranties, the claim would not have arisen but for any act, omission, transaction or arrangement (or any combination of any of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them or any member of the 141 Purchasers' Group or any successor in title to the Shares or their respective directors, employees or agents other than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirement;
(ii) with respect to a claim under the Warranties, the claim would not have arisen but for any change in the accounting policy or practice of the Companies, the Subsidiaries or any of them having effect after Completion except where such change is reasonably necessary to enable the Company, the Subsidiaries or any of them to comply with generally accepted accounting principles at the date of Completion in the place of incorporation of that Company or Subsidiary;
(iii) with respect to a claim under the Warranties, the claim arises or is increased as a result of the passing of, or any change in or any change in in, after the interpretation of, any law, rule, regulation or administrative practice applicable Closing Date of any government, government department, local or state agency, authority regulatory or fiscal body after Applicable Law not announced prior to the date the relevant Warranties are given;
(iv) with respect to a claim under the Warranties or any other provision of this Agreement, including (without prejudice to the claim arises generality of the foregoing) any increase in the rates of Tax or is increased any imposition of Tax or any withdrawal of relief from Tax not actually (or prospectively) in effect on such Closing Date;
(b) any voluntary act, voluntary omission, transaction or agreement after the applicable Closing Date made by the Indemnified Party, other than pursuant to a legally binding commitment in place prior to such Closing Date;
(c) any act, omission or transaction occurring before the applicable Closing Date directly as a result of the Purchaserswritten request or written direction of the Indemnified Party;
(d) if and to the extent that a specific allowance, provision or reserve has been made in the financial statements in respect of the matter to which such liability relates;
(e) if and to the extent any breach or claim shall arise by reason of some liability of which at the time the breach is notified to the Indemnifying Party is contingent only, the CompaniesIndemnifying Party shall not be under any obligation to make any payment thereunder until such time as the Indemnified Party has suffered a Loss; or
(f) any change after the applicable Closing Date of any generally accepted interpretation or application of any legislation, or changes in the Subsidiaries accounting policy, bases or practice of the Indemnified Party, unless any such changes have been publicly announced prior to the date hereof. The amount of them not complying with its obligations any Losses payable by the Indemnifying Party under this Agreement shall be net of any (includingi) amounts actually recovered (and not subject to forfeiture or reimbursement) by Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor, without limitationand (ii) corresponding Tax benefits to the Indemnified Party arising from such Losses, provided that no such amounts shall reduce any amount recoverable under Article VIII hereof except to the extent that the Indemnified Party has already been compensated for any deductible under any insurance policy, any unrecoverable loss hereunder and the expenses of such recovery. In computing the amount of any such Tax benefit, the provision Indemnified Party shall be deemed to utilize, at such Indemnified Party’s average tax rate then in effect, all Tax items arising from the incurrence or payment for any Losses. If the Indemnifying Party has paid an amount in discharge of paragraph 1 of any claim under this Schedule 5);
(v) Agreement and the Indemnified Party has been compensated in full for all Losses it has suffered with respect to a claim under the Warranties or any other provision subject matter of this Agreement such claim, then to the extent the damageIndemnified Party subsequently recovers or is entitled to recover (whether by payment, discount, credit, relief, insurance or otherwise) from a third party a sum which further indemnifies or compensates the Indemnified Party (in whole or in part) in respect of the same loss or liability or loss suffered or incurred which is the subject matter of the claim such that the Indemnified Party’s recovery and retention of such amount would constitute double recovery, (i) in the case of recovery of any such amount by the PurchasersIndemnified Party, the Companies, the Subsidiaries or any of them has been made good or has been otherwise compensated for without cost it shall as soon as reasonably practicable pay over such amount to the Purchasers, the Companies, the Subsidiaries or any Indemnifying Party less all costs of them;
(vi) recovery and Taxes with respect to a claim under the Warranties, specific provision is made thereto; and (ii) in the Consolidated Accounts case of a recoverable amount, it shall use its commercially reasonable efforts to recover such amounts and upon recovery, as soon as reasonably practicable, pay over such amount to the Indemnifying Party less all costs of recovery and Taxes with respect thereto, provided that under no circumstances shall the Indemnified Party be required to take any action under this paragraph that it reasonably considers would be harmful to its or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claim. For the avoidance of doubt, specific provisions for the purposes of this Paragraph 3(h)its Affiliates business in any material respect.
Appears in 1 contract
Sources: Share Subscription Agreement (Tencent Holdings LTD)
Specific Limitations. The Purchasers Purchaser shall not be entitled to claim against the Sellers:Warrantors under the Warranties (other than: (i) claims in respect of the Fundamental Warranties; (ii) claims in respect of breach of the warranty in Clause 5.1 (No Leakage); (iii) claims under the Deed of Tax Covenant; and/or (iv) save in respect of paragraph (c) below, Paragraph 20 (Taxation matters), Paragraph 5(b), Paragraph 18 and of Part 2 of Schedule 6 (Warranties)):
(a) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), unless the amount (excluding interest and costs) that would be recoverable (after taking into account the other provisions of this Schedule 7) from the Sellers Warrantors in respect of the claim exceeds (E)100,000 (one hundred thousand euros£35,000, but subject always to Paragraph 3(b). For this purpose, if a claim relates to more than one event but arises out of the same facts or circumstance which would separately constitute a breach of any of the Warranties or any other provision of this Agreement that claim each event shall be treated as a separate claim in respect part of each event or circumstancethe same claim;
(b) with respect to a claim under the Warranties, save in relation to any of the Warranties set out in Paragraphs 2 (Shares and Share Capital), 17 (Taxation Matters), 19 (Environment) and 21 (Competition) and 12.11 (Norba Agreement) only of Part 1 of Schedule 4 (Warranties), until unless the amount (excluding interest and costs) that would be recoverable (after taking into account the other provisions of this Schedule 7 from the Sellers Warrantors in respect of the claim, when aggregated with the amount (excluding interest and costs) so recoverable in respect of any other claims against the Sellers Warrantors under the Warranties or any other provision of this Agreement (and for those purposes ignoring any claims which the Purchasers are Purchaser is not entitled to bring because of paragraph Paragraph 3(a) (Specific Limitations) abovebut taking into account the other provisions of this Schedule 7)) exceeds a threshold of (E)5,000,000 (five million euros) £500,000 in which event, the Sellers' Warrantors liability shall be for in respect of the whole of such entire amount and not just the amount by which that threshold is exceeded;
(c) with respect to a claim under the Environmental Warranties relating to all Disclosed Environmental Matters unless and until the aggregated amount (excluding interest and costs) that would be recoverable from the Sellers in respect of any claim or claims exceeds a threshold of (E)2,200,000 (two million two hundred thousand euros) in which event the Sellers' liability shall be limited to the amount by which the threshold is exceeded. (For this purpose it shall be assumed that the Disclosed Environmental Matters have not been disclosed to the Purchaser and that the Purchaser had not taken into account any Losses they may incur as a consequence thereof in agreeing the Purchase Price matters Disclosed;
(d) with respect to a claim under the Environmental Warranties relating to any Undisclosed Environmental Matter unless the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of matters of which the claim 140 exceeds (E)10,000 (ten thousand euros). For this purpose if a claim relates to more than one event or circumstance which would separately constitute a breach of any of Purchaser has actual knowledge, at the Environmental Warranties or any other provision date of this Agreement that claim (and for the purposes of this Paragraph 3(d), the Purchaser shall be treated as a separate claim deemed to have the actual knowledge of the persons whose names are set out in respect of each event Schedule 12 and, where applicable, in relation only to the areas set out in that Schedule) and the Purchaser shall not be deemed to have any other actual, imputed or circumstanceconstructive knowledge);
(e) with respect to any claim under the Environmental Warranties relating to Undisclosed Environmental Matters unless and until the amount (excluding interest and costs) that would be recoverable from the Sellers in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other such claims against the Sellers (and for this purpose ignoring any claims which the Purchasers are not entitled to bring because of paragraph 3(d) (Specific Limitations) above) exceeds a threshold of (E)100,000 (one hundred thousand euros) in which event the Sellers' liability shall be for the whole of such amount and not just the amount by which that threshold is exceeded;
(f) with respect to a claim under the Warranties, in respect of any matters disclosed or referred to in this Agreement (or arising from implementation of the same) or fairly disclosed in the Disclosure Letter or otherwise actually known to ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇ before the date of this Agreement. The contents of the Norba Acquisition Agreement, the schedules to the Norba Acquisition Agreement for the purposes of this Agreement, be deemed to be fairly disclosed in the Disclosure Letter;
(g) with respect to a claim under the Warranties or any other provision of this Agreement, in respect of any matter or thing after the date of this Agreement done or omitted to be done at the express written request of or with the express prior written consent of the Purchasers, the Companies, the Subsidiaries or any of them or any other member of the Purchasers' Group and the Purchasers knew that the effect of such action or omission would be to give rise to a breach of the Warranties or any other provision of this AgreementPurchaser;
(hf) if and to the extent that:
(i) with respect to a claim under the Warranties, the claim would not have arisen but for any act, omission, transaction voluntary act or arrangement (or any combination of any voluntary omission of the same) after Completion of the Purchasers, the Companies the Subsidiaries or any of them Purchaser or any member of the 141 Purchasers' Purchaser’s Group or and which the Purchaser knew would give rise to a claim (provided that this Paragraph shall not require the Purchaser to pursue any successor in title alternative recovery for a claim prior to bringing a claim against the Shares or their respective directors, employees or agents other than acts, omissions, transactions or arrangements in the ordinary course of business, or pursuant to any legal or regulatory requirementWarrantors);
(ii) with respect to a claim under the Warranties, the claim would not have arisen but for any change in the accounting policy or practice of the Companies, the Subsidiaries Company or any of them Subsidiary having effect after Completion, other than a change which is reported by the auditors for the time being of any member of the Group to be necessary in their reasonable opinion because such accounting policy or practice applied at Completion except where such change is reasonably necessary to enable the Company, the Subsidiaries or are not in accordance with any of them to comply with generally accepted accounting principles at the date of Completion in the place of incorporation of that Company or SubsidiaryRelevant Accounting Standard;
(iii) with respect to a claim under the Warranties, the claim arises or is increased as a result of the passing of, or any change in or any change in the interpretation of, any law, rule, regulation or administrative practice of any government, government department, local or state agency, authority regulatory or fiscal body after the date the relevant Warranties are givenof this Agreement, provided that, in each case, such change has retrospective effect;
(iv) with respect to a claim under the Warranties or any other provision of this Agreement, the claim arises or is increased as a result of the Purchasers, Purchaser or the Companies, the Subsidiaries Company or any of them Subsidiary not complying with its obligations under this Agreement (including, without limitation, the provision of paragraph 1 of this Schedule 5)Agreement;
(v) with respect to a the subject matter of the claim under the Warranties or any other provision of this Agreement to the extent the damage, liability or loss suffered or incurred by the Purchasers, the Companies, the Subsidiaries or any of them has been made good or has otherwise been otherwise compensated for without cost or expense to the Purchasers, Purchaser or the Companies, the Subsidiaries or Company any of themSubsidiary;
(vi) with the subject matter of the claim has been expressly taken into account in the calculation of the Locked Box Accounts and/or the Exchange Net Debt Statement; or
(vii) the Losses in respect of such claim are subsequently recovered by the Purchaser or a member of the Purchaser’s Group from a third party under a policy of insurance (excluding the W&I Policy), provided that this Paragraph shall not require the Purchaser or a member of the Purchaser’s Group to pursue any alternative recovery for a claim under prior to bringing a claim against the Warranties, specific provision is made in the Consolidated Accounts or the Management Accounts for the matter, fact, event or the circumstance which would otherwise give rise to a claim. For the avoidance of doubt, specific provisions for the purposes of this Paragraph 3(h)Warrantors.
Appears in 1 contract