PARTIES SEEKING INDEMNITY MAY
RECOVER ALL LOSSES INCURRED IN EXCESS OF THE DEDUCTIBLE, AND (I) SELLER'S
MAXIMUM LIABILITY FOR LOSSES PURSUANT TO SECTION 11.5(A), AND PURCHASER'S
MAXIMUM LIABILITY FOR LOSSES PURSUANT TO SECTION 11.6(A), IN EACH CASE, SHALL BE
$215,000,000 (THE "MAXIMUM INDEMNITY AMOUNT"); PROVIDED, HOWEVER, THAT,
NOTWITHSTANDING THE FOREGOING, THE DEDUCTIBLE AND THE MAXIMUM INDEMNITY AMOUNT
SHALL NOT APPLY TO (AND THE INDEMNIFIED PARTIES SHALL BE ENTITLED TO BE
INDEMNIFIED FOR ALL LOSSES RELATING TO) ANY CLAIMS BASED ON THE OCCURRENCE OF
COMMON LAW ACTUAL FRAUD AND (B) ANY CLAIMS ASSERTED UNDER SECTION 11.5(A), OR
SECTION 11.6(A) INSOFAR AS SUCH CLAIMS RELATE TO ANY BREACH OF FUNDAMENTAL
REPRESENTATIONS OR ANY CERTIFICATE TO THE EXTENT BASED ON ANY SUCH FUNDAMENTAL
REPRESENTATION.
(B)
SOLELY FOR PURPOSES OF CALCULATING THE AMOUNT OF LOSSES INCURRED
ARISING OUT OF OR RELATING TO ANY BREACH OR INACCURACY OF A REPRESENTATION OR
WARRANTY (AND NOT FOR DETERMINING WHETHER A BREACH HAS OCCURRED), THE REFERENCES
TO "MATERIAL ADVERSE EFFECT" OR OTHER MATERIALITY QUALIFICATIONS (OR CORRELATIVE
TERMS) SHALL BE DISREGARDED.
(C)
THE LIABILITY OF ANY PARTY UNDER ARTICLE 11 SHALL BE IN ADDITION
TO, AND NOT EXCLUSIVE OF, ANY OTHER LIABILITY THAT SUCH PARTY MAY HAVE AT LAW OR
EQUITY BASED ON SUCH PARTY'S COMMON LAW ACTUAL FRAUD.
NONE OF THE PROVISIONS
SET FORTH IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE PROVISIONS SET
FORTH IN SECTION 3.4(J) (RELATING TO THE INDIVIDUAL DEFECT DEDUCTIBLE), SECTION
11.4(B) (RELATING TO LIMITATIONS ON THE PERIOD DURING WHICH A CLAIM FOR
INDEMNIFICATION MAY BE BROUGHT) OR SECTION 11.8(A) (RELATING TO THE DEDUCTIBLE),
SHALL BE DEEMED A WAIVER BY ANY PARTY TO THIS AGREEMENT OF ANY RIGHT OR REMEDY
WHICH SUCH PARTY MAY HAVE AT LAW OR EQUITY BASED ON ANY OTHER PARTY'S COMMON LAW
ACTUAL FRAUD, NOR SHALL ANY SUCH PROVISIONS LIMIT, OR BE DEEMED TO LIMIT, (I)
THE AMOUNTS OF RECOVERY SOUGHT OR AWARDED IN ANY SUCH CLAIM FOR COMMON LAW
ACTUAL FRAUD, (II) THE TIME PERIOD DURING WHICH A CLAIM FOR COMMON LAW ACTUAL
FRAUD MAY BE BROUGHT OR (III) THE RECOURSE WHICH ANY SUCH PARTY MAY SEEK AGAINST
ANOTHER PARTY WITH RESPECT TO A CLAIM FOR COMMON LAW ACTUAL FRAUD; PROVIDED,
THAT WITH RESPECT TO SUCH RIGHTS AND REMEDIES AT LAW OR EQUITY, THE PARTIES
FURTHER ACKNOWLEDGE AND AGREE THAT NONE OF THE PROVISIONS OF THIS SECTION
11.8(C), NOR ANY REFERENCE TO THIS SECTION 11.8(C) THROUGHOUT THIS AGREEMENT,
SHALL BE DEEMED A WAIVER OF ANY DEFENSES WHICH MAY BE AVAILABLE IN RESPECT OF
ACTIONS OR CLAIMS FOR COMMON LAW ACTUAL FRAUD, INCLUDING BUT NOT LIMITED TO,
DEFENSES OF STATUTES OF LIMITATIONS OR LIMITATIONS OF DAMAGES.
SECTION 11.9
RELEASE.
EXCEPT WITH RESPECT TO SECTION 5.7 AND POST-CLOSING REMEDIATION AGREED TO
PURSUANT TO SECTION 4.3, PURCHASER HEREBY RELEASES, REMISES AND FOREVER
DISCHARGES THE SELLER INDEMNIFIED PERSONS FROM ANY AND ALL CLAIMS, KNOWN OR
UNKNOWN, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, CONTINGENT OR OTHERWISE,
WHICH PURCHASER MIGHT NOW OR SUBSEQUENTLY MAY HAVE AGAINST THE SELLER
INDEMNIFIED PERSONS, RELATING DIRECTLY