THE INSURER (COLLECTIVELY WITH THE
LIMITED-INDEMNITY ITEMS, THE HIGH POINT LITIGATION, CLOSING INDEBTEDNESS AND THE
RETAINED LEASES, THE "SELLER INDEMNIFIED ITEMS").
FOR THE AVOIDANCE OF DOUBT,
NO SELLER-INDEMNIFIED PERSON SHALL BE ENTITLED TO BE INDEMNIFIED PURSUANT TO
THIS SECTION 8.1 FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY IS ACTUALLY
REFLECTED IN THE CLOSING WORKING CAPITAL USED TO DETERMINE THE FINAL PURCHASE
PRICE.
(B)
ANY CLAIM FOR INDEMNIFICATION MADE BY A SELLER-INDEMNIFIED PERSON
UNDER THIS SECTION 8.1 IN RESPECT OF THE LIMITED-INDEMNITY ITEMS MUST BE
ASSERTED IN A WRITING DELIVERED TO SELLERS NO LATER THAN THE SURVIVAL DATE AND,
IF ASSERTED BY SUCH DATE, SUCH CLAIM SHALL SURVIVE THE SURVIVAL DATE UNTIL FINAL
RESOLUTION THEREOF.
THE RIGHT TO INDEMNIFICATION, REIMBURSEMENT OR OTHER REMEDY
BASED UPON SUCH REPRESENTATIONS, WARRANTIES, COVENANTS AND OBLIGATIONS SHALL NOT
BE AFFECTED BY ANY INVESTIGATION (INCLUDING ANY ENVIRONMENTAL INVESTIGATION OR
ASSESSMENT) CONDUCTED WITH RESPECT TO, OR ANY KNOWLEDGE ACQUIRED (OR CAPABLE OF
BEING ACQUIRED) AT ANY TIME, WHETHER BEFORE OR AFTER THE EXECUTION AND DELIVERY
OF THIS AGREEMENT OR THE CLOSING DATE.
EXCEPT AS PROVIDED IN THE PROVISO TO THE
FIRST SENTENCE OF SECTION 8.1(C), THE WAIVER OF ANY COVENANT OR CONDITION WILL
NOT AFFECT THE RIGHT TO INDEMNIFICATION, REIMBURSEMENT OR OTHER REMEDY.
41
(C)
THE AGGREGATE LIABILITY OF SELLERS ON ACCOUNT OF ALL
LIMITED-INDEMNITY ITEMS PURSUANT TO SECTION 8.1 SHALL BE LIMITED TO $12,000,000
(THE "LIMITED-INDEMNITY CAP"), AND CLAIMS FOR DAMAGES IN RESPECT OF
LIMITED-INDEMNITY ITEMS SHALL BE LIMITED TO SUCH AMOUNT, WHETHER THE
SELLER-INDEMNIFIED PERSON IN QUESTION IS THE PURCHASER OR ANOTHER
SELLER-INDEMNIFIED PERSON; PROVIDED THAT, IF PURCHASER HAS THE RIGHT TO
TERMINATE THIS AGREEMENT PURSUANT TO SECTION 6.8 PRIOR TO THE CLOSING AND DOES
NOT DO SO, THEN THE LIMITED-INDEMNITY CAP WILL BE REDUCED BY THE AMOUNT, IF ANY,
OF THE LIMITED 6.8 LIABILITIES INCLUDED IN DETERMINING THE CLOSING WORKING
CAPITAL ADJUSTMENT (BUT NOT BY AN AMOUNT THAT EXCEEDS THE CLOSING WORKING
CAPITAL ADJUSTMENT).
WITHOUT LIMITING THE FOREGOING, THE SELLER-INDEMNIFIED
PERSONS' SOLE RECOURSE IN RESPECT OF LIMITED-INDEMNITY ITEMS SHALL BE TO THE
AMOUNTS HELD FROM TO TIME BY THE ESCROW AGENT AND NOT THERETOFORE RELEASED
PURSUANT TO THE ESCROW AGREEMENT.
IN ADDITION, THE INDEMNIFICATION PROVIDED FOR
IN THIS SECTION 8.1 IN RESPECT OF THE LIMITED-INDEMNITY ITEMS SHALL NOT APPLY
UNLESS AND UNTIL THE AGGREGATE DAMAGES DETERMINED TO BE DUE FOR WHICH ONE OR
MORE SELLER-INDEMNIFIED PERSONS SEEKS OR HAS SOUGHT INDEMNIFICATION HEREUNDER IN
RESPECT OF LIMITED-INDEMNITY ITEMS EXCEEDS A CUMULATIVE AGGREGATE OF $2,500,000
(THE "DEDUCTIBLE"), IN WHICH EVENT THE SELLER-INDEMNIFIED PERSONS SHALL, SUBJECT
TO THE OTHER LIMITATIONS HEREIN, BE INDEMNIFIED FOR SUCH DAMAGES TO THE EXTENT
IN EXCESS OF THE DEDUCTIBLE.
NOTWITHSTANDING THE FOREGOING LIMITATIONS, SELLERS
SHALL INDEMNIFY PURCHASER FROM AND AGAINST THE ENTIRETY OF ANY DAMAGES ARISING
FROM FACTS OR CIRCUMSTANCES THAT CONSTITUTE FRAUD OR WILLFUL BREACH OF ANY
COVENANT BY SELLERS.
(D)
IN VIEW OF THE DEDUCTIBLE, AND SOLELY FOR PURPOSES OF DETERMINING
THE AMOUNT OF ANY DAMAGES, THE REPRESENTATIONS AND WARRANTIES OF SELLERS SET
FORTH IN THIS AGREEMENT (OR IN