LANDLORD AND WAREHOUSE CONSENTS SHALL NOT
EXCEED $1,000,000 (EXCLUSIVE OF ANY COSTS OF THE SELLERS TO USE COMMERCIALLY
REASONABLE EFFORTS); AND (B) ANY BUYER LOSSES ARISING FROM A BREACH OF SECTION
3.8(C) HEREOF SHALL NOT BE SUBJECT TO THE THRESHOLD OR THE DEDUCTIBLE.
(III)
THE BUYERS, IHI AND THE SELLERS HEREBY AGREE
THAT IN RELATION ONLY TO ANY CLAIM ARISING UNDER OR PURSUANT TO THE PARTHENON
WARRANTIES (EXCLUDING FOR THESE PURPOSES WARRANTY 14 OF THE PARTHENON WARRANTIES
(AS VARIED BY SCHEDULE 3.1(D) HERETO)) THERE SHALL BE DISREGARDED FOR THE
PURPOSE OF CALCULATING THE THRESHOLD AND THE DEDUCTIBLE ANY CLAIM IN AN
43
AMOUNT LESS THAN $10,000.
(IV)
THE LIABILITY TO THE BUYERS AND THEIR
RESPECTIVE AFFILIATES UNDER SECTION 8.1(A) FOR THE BUYER LOSSES AND FOR CLAIMS
UNDER THE PARTHENON TAX COVENANT SHALL NOT EXCEED THE PURCHASE PRICE.
(C)
THE INDEMNITIES PROVIDED IN THIS SECTION
8.1(A)(I) AND UNDER THE PARTHENON TAX COVENANT SHALL SURVIVE THE CLOSING FOR THE
PERIOD SET FORTH IN SECTION 8.1(B).
ALL OTHER INDEMNITIES SHALL SURVIVE AS
PROVIDED IN SECTION 11.3.
IN THE ABSENCE OF FRAUD OR WILLFUL MISCONDUCT, THE
INDEMNITY PROVIDED IN THIS SECTION 8.1 AND UNDER THE PARTHENON TAX COVENANT
SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTY AGAINST THE
INDEMNIFYING PARTY AT LAW OR EQUITY FOR ANY MATTER COVERED BY SECTION 8.1(A)
HEREOF AND UNDER THE PARTHENON TAX COVENANT, EXCEPT FOR EQUITABLE REMEDY OF
SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF; PROVIDED THAT NOTHING HEREIN SHALL
RELIEVE THE SELLERS OF ANY OF THEIR OBLIGATIONS UNDER SECTION 2.2 HEREOF.
(D)
IN NO EVENT SHALL IHI OR THE SELLERS OR
THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE BUYERS OR THEIR RESPECTIVE
AFFILIATES FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
(E)
IN NO EVENT SHALL IHI OR THE SELLERS OR
THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE BUYERS AND THEIR RESPECTIVE
AFFILIATES UNDER THE INDEMNITIES PROVIDED IN THIS SECTION 8.1 INSOFAR AS SUCH
INDEMNITIES RELATE TO PARTHENON LTD. AND/OR ANY ASSETS SITUATED IN THE U.K. TO
THE EXTENT THAT THE BUYERS OR THEIR RESPECTIVE AFFILIATES HAVE ALREADY RECOVERED
AN AMOUNT UNDER THE TERMS OF THIS AGREEMENT IN RESPECT OF THE SUBJECT MATTER IN
QUESTION.
(F)
FOR THE AVOIDANCE OF DOUBT THE LIABILITY
OF THE SELLERS UNDER THE PARTHENON TAX COVENANT SHALL BE LIMITED BY THE
LIMITATIONS INCLUDED AT SECTION 8.1(B)(IV) (MAXIMUM LIABILITY), SECTION 8.1(C),
SECTION 8.1(D) AND BY CERTAIN ADDITIONAL LIMITATIONS INCLUDED IN THE PARTHENON
TAX COVENANT AS AMENDED BY SCHEDULE 5.14 TO THIS AGREEMENT.
8.2.
INDEMNIFICATION BY THE BUYERS.
(A)
THE BUYERS SHALL, JOINTLY AND SEVERALLY,
DEFEND, INDEMNIFY AND HOLD HARMLESS, WITHOUT DUPLICATION, IHI AND THE SELLERS
AND THEIR RESPECTIVE AFFILIATES (OTHER THAN PARTHENON LTD.) FROM AND AGAINST AND
IN RESPECT OF ANY AND ALL ACTUAL LOSSES, LIABILITIES, DAMAGES, JUDGMENTS,
SETTLEMENTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED
DIRECTLY BY THE SELLERS AND THEIR RESPECTIVE AFFILIATES (HEREINAFTER THE
"SELLERS' LOSSES") WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION
WITH OR WHICH RESULTS FROM OR IS ATTRIBUTABLE TO: (I) ANY BREACH OF ANY