$100 MILLION, EXCEPT IN THE CASE OF A
BREACH OF A REPRESENTATION AND WARRANTY CONTAINED IN SECTION 2.1(F) OR (P) IN
WHICH CASE THE AGGREGATE AMOUNT OF CLAIMS FOR ENTERPRISE LOSSES SHALL NOT EXCEED
$207.55 MILLION.
(B)
IN CALCULATING THE AMOUNT OF ANY LOSS FOR WHICH ANY INDEMNIFYING
PARTY IS LIABLE UNDER THIS ARTICLE, THERE SHALL BE DEDUCTED THE AMOUNT OF ANY
INSURANCE RECOVERIES FROM THIRD-PARTY INSURERS WHICH THE INDEMNIFIED PARTY
ACTUALLY RECEIVES AS A DIRECT CONSEQUENCE OF THE CIRCUMSTANCES TO WHICH THE LOSS
RELATED OR FROM WHICH THE LOSS RESULTED OR AROSE, EXCEPT TO THE EXTENT SUCH
INSURANCE RECOVERIES HAVE OR ARE REASONABLY ANTICIPATED TO RESULT IN FUTURE OR
RETROACTIVE PREMIUM INCREASES.
(C)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
REMEDIES OF THE PARTIES SPECIFICALLY PROVIDED FOR BY THIS ARTICLE SHALL BE THE
SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES FOR (I) ANY BREACH OR INACCURACY OF
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT OR IN ANY
DOCUMENT FURNISHED OR DELIVERED PURSUANT HERETO, (II) THE FAILURE TO PERFORM ANY
COVENANTS, AGREEMENTS OR OBLIGATIONS CONTAINED IN THIS AGREEMENT OR IN ANY
DOCUMENT FURNISHED OR DELIVERED PURSUANT HERETO, OR (III) JONAH'S OWNERSHIP OR
OPERATION OF THE JONAH GAS GATHERING SYSTEM PRIOR TO CLOSING.
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO
EVENT SHALL ANY PARTY BE LIABLE TO ANOTHER PARTY, EXCEPT WITH RESPECT TO A
LIABILITY IMPOSED AS A RESULT OF A THIRD-PARTY CLAIM OR ALLEGATION, FOR ANY
EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE, OR SPECULATIVE
DAMAGES, EVEN IF CAUSED BY THE SOLE, JOINT, AND/OR CONCURRENT NEGLIGENCE, STRICT
LIABILITY, OR OTHER FAULT OF SUCH PARTY.
SECTION 4.6.
PIONEER SILICA GEL PLANT ASSET SALE.
NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AFTER THE DATE HEREOF, IN THE EVENT
JONAH SHALL BECOME LIABLE TO ENTERPRISE GAS PROCESSING, LLC PURSUANT TO THE
INDEMNIFICATION PROVISIONS OF THAT CERTAIN PURCHASE AND SALE AGREEMENT BY AND
BETWEEN JONAH AND ENTERPRISE GAS PROCESSING, LLC DATED AS OF MARCH 31, 2006, THE
TEPPCO PARTIES OR TEPPCO PARTNERS, L.P. (AND NOT JONAH) SHALL DIRECTLY PAY TO
ENTERPRISE GAS PROCESSING, LLC ANY AMOUNTS DUE FROM JONAH TO ENTERPRISE GAS
PROCESSING, LLC PURSUANT TO SUCH AGREEMENT.
TO THE EXTENT THAT THE TEPPCO
PARTIES OR TEPPCO PARTNERS, L.P. IS UNABLE TO DIRECTLY PAY OR DOES NOT PAY
ENTERPRISE GAS PROCESSING, LLC DIRECTLY IN ACCORDANCE WITH THE PRECEDING
SENTENCE, SUCH NON-PAYMENT WILL CONSTITUTE A BREACH OF THIS AGREEMENT BY THE
TEPPCO PARTIES AND TEPPCO PARTNERS, L.P.
IN SUCH EVENT, JONAH SHALL MAKE SUCH
PAYMENT TO ENTERPRISE GAS PROCESSING, LLC AND WILL MAKE AN ADDITIONAL PAYMENT TO
ENTERPRISE IN AN AMOUNT WHICH COMPENSATES ENTERPRISE FOR THE PORTION OF THE
PAYMENT(S) MADE BY JONAH WHICH ARE ATTRIBUTABLE TO ENTERPRISE'S PARTNERSHIP
INTEREST (WITH SUCH AMOUNTS TO BE FURTHER GROSSED UP TO REFLECT SUCH ADDITIONAL
PAYMENT IN THE SAME MANNER).
12
ARTICLE 5
DEFINITIONS
SECTION 5.1.
CERTAIN DEFINED TERMS.
CAPITALIZED TERMS USED HEREIN AND
NOT DEFINED ELSEWHERE IN THIS AGREEMENT SHALL HAVE THE MEANINGS GIVEN SUCH TERMS
AS IS SET