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This excerpt taken from the MRVL 10-Q filed Sep 8, 2005. Basket Amount”)
(in which event the Buyer Indemnified Parties shall be entitled to
indemnification for the full amount of such Damages, including the first
$750,000 thereof).
(b) Notwithstanding anything herein to the contrary, Seller shall not be obligated to indemnify the Buyer Indemnified Parties against Damages pursuant to Section 9.1(a) to the extent that payments thereof to the Buyer Indemnified Parties pursuant to the terms of this Agreement exceeds the Escrow Fund; provided, however, that the indemnification liability of Seller pursuant to Section 9.1(b) through Section 9.1(d) shall be unlimited.
(c) Notwithstanding anything herein to the contrary, Buyer shall have no obligation to indemnify the Seller Indemnified Parties against Damages pursuant to Section 9.2(a) of this Agreement unless and until the aggregate of all such Damages suffered or incurred by Seller and such Persons exceeds $250,000 (in which event the Seller Indemnified Parties shall be entitled to indemnification for the full amount of such Damages, including the first $250,000 thereof).
(d) Notwithstanding anything herein to the contrary, Buyer shall not be obligated to indemnify the Seller Indemnified Parties against Damages pursuant to Section 9.2(a) to the extent that payments thereof to the Seller Indemnified Parties pursuant to the terms of this Agreement exceeds $2,400,000; provided, however, that the
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indemnification liability of Buyer pursuant to Section 9.2(b) through Section 9.2(e) shall be unlimited.
(e) Except as otherwise expressly provided in this Agreement, no claim for indemnification pursuant to this Article IX may or shall be made unless written notice pursuant to Section 9.3 or Section 9.4, as applicable, is delivered to the Indemnifying Party.
(f) Buyer acknowledges, on behalf of itself and on behalf of the other Buyer Indemnified Parties, that their sole and exclusive remedy with respect to the subject matter of this Agreement and the related agreements and documents contemplated hereby and executed and delivered by Seller at the Closing shall be pursuant to the indemnification provisions set forth in this Article IX (other than claims and causes of action based on criminal fraud). In furtherance of the foregoing, Buyer hereby waives, on behalf of itself and each of the other Buyer Indemnified Parties, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (other than claims and causes of action based on criminal fraud) it may have against Seller arising under or based upon any applicable Law or otherwise (except pursuant to the indemnification provisions set forth in this Article IX).
(g) Upon payment in full of any Inter-Party Claim pursuant to Section 9.3 or the payment of any Judgment with respect to a Third Party Claim pursuant to Section 9.4, the Indemnifying Party shall be subrogated to the extent of such payment to the rights of the Indemnified Party against any Person (other than the Buyer Indemnified Parties) with respect to the subject matter of such Inter-Party Claim or Third Party Claim. The Indemnified Parties shall assign or otherwise reasonably cooperate with the Indemnifying Parties, at the cost and expense of the Indemnified Parties, to pursue any claims against, or otherwise recover amounts from, any Person liable or responsible for any Damages for which indemnification has been received pursuant to this Agreement.
(h) The waiver by either Buyer or Seller of any condition set forth in Section 7.2 or 7.3, respectively, based upon the accuracy of any representation or warranty or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, reimbursement or other remedy based upon such representations, warranties, covenants and obligations.
(i) Notwithstanding anything herein to the contrary, no party hereto shall be entitled to be indemnified against any Damages based upon or arising from any claim to the extent such claim is taken into account in determining the amounts (if any) due to and paid to Buyer or Seller, as the case may be, pursuant to Section 6.11.
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