BY THE
BUYER INDEMNITEES AGAINST SELLER PURSUANT TO
40
SECTION 9.1(A) FOR DAMAGES SUFFERED OR INCURRED BY ANY BUYER INDEMNITEES EXCEED
10% OF THE VALUE OF THE PURCHASE PRICE (AS ADJUSTED PURSUANT TO SECTION 2.4),
EXCEPT THAT WITH RESPECT TO DAMAGES SUFFERED OR INCURRED BY ANY BUYER INDEMNITEE
DUE TO A BREACH OF SECTION 3.16 THE MAXIMUM AGGREGATE LIABILITY OF SELLER SHALL
BE 20% OF THE VALUE OF THE PURCHASE PRICE (AS ADJUSTED PURSUANT TO SECTION 2.4).
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS
CONTAINED IN THIS SECTION 9.5 SHALL NOT APPLY TO CLAIMS FOR INDEMNIFICATION BY
BUYER INDEMNITEES AGAINST SELLER IN PURSUANT TO SECTIONS 9.1(B), 9.1(C), 9.1(D),
AND 9.1(E); PROVIDED, HOWEVER, THAT EXCEPT FOR FRAUD CLAIMS, BUYER'S OR PARENT'S
(OR ANY BUYER INDEMNITEE'S) RIGHT TO MAKE A CLAIM FOR INDEMNIFICATION UNDER
SECTIONS 9.1(B), 9.1(C), 9.1(D), AND 9.1(E) SHALL EXPIRE WITH RESPECT TO SUCH
CLAIMS WHICH ARE NOT MADE ON OR PRIOR TO THE DATE FIVE YEARS FOLLOWING THE
CLOSING DATE.
9.6
ENVIRONMENTAL COVENANTS.
THE OBLIGATIONS AND RIGHTS OF THE BUYER
INDEMNITEES AND SELLER INDEMNITEES WITH RESPECT TO INDEMNIFICATION FOR
ENVIRONMENTAL LIABILITIES UNDER THIS ARTICLE IX (WHETHER AS AN EXCLUDED
LIABILITY, ASSUMED LIABILITY OR AS A RESULT OF A REPRESENTATION OR WARRANTY MADE
IN THIS AGREEMENT), COLLECTIVELY THE "ENVIRONMENTAL COVENANTS," ARE IN ADDITION
TO, INDEPENDENT FROM, AND SEVERABLE FROM THE RIGHTS AND OBLIGATIONS OF SAID
PARTIES UNDER ALL OTHER PROVISIONS OF THIS AGREEMENT.
IT IS EXPRESSLY
ACKNOWLEDGED BY ALL PARTIES HERETO THAT NEITHER THE ACTS OR OMISSIONS OF ANY
PARTY HERETO, NOR ANY FAILURE OF ANY CONDITION OR BREACH OF A REPRESENTATION
CONTAINED IN THIS AGREEMENT, ANY ANCILLARY AGREEMENTS, OR ANY OTHER AGREEMENTS
ENTERED INTO IN CONNECTION THEREWITH, SHALL IMPAIR THE RIGHTS OF SELLER
INDEMNITEES OR BUYER INDEMNITEES TO ENFORCE THE ENVIRONMENTAL COVENANTS FOR
THEIR BENEFIT, IT BEING UNDERSTOOD THAT THE ENVIRONMENTAL COVENANTS ARE BEING
GIVEN IN CONSIDERATION OF THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
THE ENVIRONMENTAL COVENANTS SHALL SURVIVE THE SALE, TRANSFER,
ASSIGNMENT, OR HYPOTHECATION OF ANY OWNERSHIP INTEREST IN A PARTY BENEFITED
HEREBY OR OBLIGATED HEREUNDER AND THE SALE, TRANSFER, ASSIGNMENT, OR
HYPOTHECATION OF THE BUSINESS ACTIVITIES OF THE FACILITY OR PURCHASED ASSETS OR
THE REAL PROPERTY AT WHICH THE FACILITY IS LOCATED, OR ANY PORTION THEREOF OR
INTEREST THEREIN, BY ANY PARENT, BUYER OR SELLER TO ANY PERSON.
9.7
ESCROW.
WITH RESPECT TO ANY CLAIMS FOR INDEMNIFICATION, BUYER
SHALL FIRST PROCEED AGAINST THE ESCROW WITH RESPECT TO CLAIMS BUYER HAS FOR
INDEMNIFICATION PURSUANT TO THIS SECTION 9.
IN THE EVENT THE ESCROW IS NOT
SUFFICIENT TO SATISFY ANY VALID INDEMNIFICATION CLAIM OF BUYER, OR IN THE EVENT
SUCH CLAIM IS MADE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 9 AFTER THE
ESCROW HAS TERMINATED AND RECOURSE TO SUCH CLAIM PROPERLY BE MADE BEYOND THE
ESCROW, THEN SELLER SHALL REMAIN OBLIGATED TO SATISFY SUCH INDEMNIFICATION CLAIM
OF BUYER IN FULL (SUBJECT TO THE OTHER LIMITATIONS IN THIS ARTICLE IX).
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ARTICLE X
TERMINATION
10.1
TERMINATION OF THE AGREEMENT.
THE PARTIES