FOR
INDEMNIFICATION PURSUANT TO SECTION 12.01(A) OF THIS ARTICLE XII WITH RESPECT TO
ANY INDIVIDUAL ITEM OF LOSS, DAMAGE OR EXPENSE, UNLESS SUCH ITEM EXCEEDS $50,000
AND UNLESS THE AGGREGATE OF ALL SUCH LOSSES, DAMAGES AND EXPENSES (WHICH
INDIVIDUALLY EXCEED $50,000) OF PURCHASER WITH RESPECT TO THIS ARTICLE XII SHALL
EXCEED $250,000 ("THRESHOLD"), AND THEN SELLER SHALL ONLY BE REQUIRED TO PAY OR
BE LIABLE FOR THE EXCESS OVER THE THRESHOLD, EXCEPT THAT THE LIMITATIONS SET
FORTH IN THIS SECTION 12.02(B) SHALL NOT APPLY TO ANY WARRANTY OR REPRESENTATION
RELATING TO ANY TAX.
(C)
SELLER'S MAXIMUM LIABILITY TO PURCHASER PURSUANT TO SECTION
12.01(A) OF THIS ARTICLE XII SHALL BE THIRTY PERCENT (30%) OF THE INITIAL
PURCHASE PRICE.
(D)
FOR THE AVOIDANCE OF DOUBT, THE PROVISIONS OF SECTIONS 12.02(A),
(B) AND (C) OF THIS ARTICLE XII SHALL NOT APPLY TO INDEMNIFICATION CLAIMS MADE
AGAINST SELLER PURSUANT TO SECTION 12.01(C) OF THIS ARTICLE XII OR TO
INDEMNIFICATION CLAIMS ALLEGING A BREACH OF SELLER'S OBLIGATIONS TO INDEMNIFY
PURCHASER UNDER THIS ARTICLE XII; AND THE PROVISIONS OF SECTIONS 12.02(B) AND
(C) OF THIS ARTICLE XII SHALL NOT APPLY TO INDEMNIFICATION CLAIMS MADE AGAINST
SELLER PURSUANT TO SECTION 12.01(B) OF THIS ARTICLE XII.
26
(E)
FOR THE PURPOSES OF THE LIMITATIONS OF LIABILITY SET FORTH IN
SECTIONS 12.02(B) AND (C), IN COMPUTING SUCH INDIVIDUAL OR AGGREGATE AMOUNTS OF
CLAIMS, THE AMOUNT OF EACH CLAIM SHALL BE DEEMED TO BE AN AMOUNT (I) NET OF ANY
TAX BENEFIT REALIZABLE BY PURCHASER OR ANY AFFILIATE THEREOF BY REASON OF
DEDUCTIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE (DETERMINED BY MULTIPLYING SUCH
DEDUCTIBLE AMOUNT BY THE THEN APPLICABLE HIGHEST EFFECTIVE CORPORATE INCOME TAX
RATE) AND ANY DEFERRED TAX BENEFIT ATTRIBUTABLE TO SUCH LOSS, DAMAGE OR EXPENSE
(DETERMINED ON THE SAME BASIS BUT PRESENT VALUED TO THE EXTENT OBTAINED THROUGH
DEPRECIATION OR AMORTIZATION DEDUCTIONS) AND (II) NET OF ANY INSURANCE PROCEEDS
AND ANY INDEMNITY, CONTRIBUTION OR OTHER SIMILAR PAYMENT RECOVERABLE BY
PURCHASER OR ANY AFFILIATE FROM ANY THIRD PARTY WITH RESPECT THERETO.
(F)
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT AND THE ASSUMPTION AGREEMENT SHALL BE PURSUANT TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE XII.
IN FURTHERANCE OF THE
FOREGOING, PURCHASER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE
AGAINST SELLER ARISING UNDER OR BASED UPON ANY LAW (INCLUDING, WITHOUT
LIMITATION, ANY SUCH RIGHTS, CLAIMS OR CAUSES OF ACTION ARISING UNDER OR BASED
UPON COMMON LAW OR OTHERWISE) OR ENVIRONMENTAL LAWS, INCLUDING, BUT NOT LIMITED
TO, THE RESOURCE CONSERVATION AND RECOVERY ACT AND THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, EXCEPT FOR ANY CLAIMS
PERMITTED UNDER ARTICLE XII OF THIS AGREEMENT.
(G)
EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER IS NOT MAKING ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT WITH RESPECT TO THE MATTERS
CONTAINED HEREIN.
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, NO