misconduct or gross negligence of such
Indemnified Party.
49
2.
LIMITATION OF INDEMNIFICATION.
(a)
The Indemnified Parties shall not be entitled to recover from PICO
any Losses unless and until the amount of such Losses theretofore incurred by
the Indemnified Parties exceeds $50,000 (the "Losses Threshold"), and then only
for such Losses in excess of the Losses Threshold.
(b)
The maximum aggregate liability obligation of PICO to the
Indemnified Parties for Losses (including liabilities of PICO) pursuant to this
Section 2 shall not exceed $200,000 (the "Losses Cap").
(c)
Notwithstanding the previous provisions of this Section 2,
Losses
described in Section 1(b) hereof, shall be excluded for purposes of determining
whether the Losses Threshold or Losses Cap has been reached and shall not be
subject to the Losses Cap.
3.
EXCLUSIVE REMEDY.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT
THE SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR LOSSES RELATING TO THE
GOING PRIVATE TRANSACTION WILL BE INDEMNIFICATION IN ACCORDANCE WITH THIS
AGREEMENT.
IN FURTHERANCE OF THE FOREGOING, THE PARTIES HERETO HEREBY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL OTHER RIGHTS,
CLAIMS, AND CAUSES OF ACTION (INCLUDING RIGHTS OF CONTRIBUTION, IF ANY) THAT MAY
BE BASED UPON, ARISE OUT OF, OR RELATE TO THIS AGREEMENT, OR THE NEGOTIATION,
EXECUTION, OR PERFORMANCE OF THIS AGREEMENT (INCLUDING ANY TORT OR BREACH OF
CONTRACT CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR RELATED TO ANY
REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH THIS AGREEMENT OR AS AN
INDUCEMENT TO ENTER INTO THIS AGREEMENT), KNOWN OR UNKNOWN, FORESEEN OR
UNFORESEEN, WHICH EXIST OR MAY ARISE IN THE FUTURE, THAT IT MAY HAVE AGAINST THE
OTHER ARISING UNDER OR BASED UPON ANY LAW (INCLUDING ANY SUCH LAW UNDER OR
RELATING TO ENVIRONMENTAL MATTERS), COMMON LAW, OR OTHERWISE. NOTWITHSTANDING
THE PRECEDING PROVISIONS OF THIS SECTION 3, THE PARTIES HERETO ACKNOWLEDGE THAT
THE OBLIGATION UNDER SECTION 7.12 OF THE CONTRIBUTION AGREEMENT IS A FUNDING
OBLIGATION AND THE OBLIGATION UNDER THIS SECTION 3 IS AN INDEMNIFICATION
OBLIGATION, THEREFORE, THIS SECTION 3 DOES NOT AMEND OR MODIFY SECTION 7.12 OF
THE CONTRIBUTION AGREEMENT.
4.
NO THIRD PARTY BENEFICIARIES.
EXCEPT FOR THE INDEMNIFIED PARTIES
AND THEIR HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AND AS IS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THIS AGREEMENT IS NOT INTENDED
TO, AND DOES NOT, CREATE ANY RIGHTS IN OR CONFER ANY BENEFITS UPON ANYONE OTHER
THAN THE PARTIES HERETO.
5.
ENTIRE AGREEMENT; AMENDMENT.
THIS AGREEMENT (TOGETHER WITH THE
CONTRIBUTION AGREEMENT) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
WITH RESPECT TO THE SUBJECT MATTER HEREOF.
NONE OF THE TERMS AND PROVISIONS
CONTAINED IN THIS AGREEMENT CAN BE CHANGED WITHOUT A WRITING SIGNED BY ALL
PARTIES HERETO.
6.
NO WAIVER OF RIGHTS.
NO WAIVER OF ANY RIGHTS OF ANY OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND
EXECUTED BY A DULY AUTHORIZED REPRESENTATIVE OF THE