REPRESENTATION AND WARRANTY SHALL BE DISREGARDED IN
DETERMINING WHETHER ANY SUCH REPRESENTATION AND WARRANTY HAS BEEN BREACHED
EXCEPT AS SET FORTH IN SCHEDULE 6.2(B) OF THE SELLER DISCLOSURE LETTER);
(II) ANY BREACH OF ANY COVENANT OR AGREEMENT BY SELLER CONTAINED IN THIS
AGREEMENT (OTHER THAN COVENANTS CONTAINED IN ARTICLE VII, WHICH ARE ADDRESSED BY
ARTICLE VII EXCLUSIVELY); AND (III) ANY RETAINED LIABILITY.
(B)
SUBJECT TO THE RIGHTS AND LIMITATIONS SET FORTH IN THIS
SECTION 8.2 AND SECTIONS 8.4(B), 8.4(D), 8.5, 8.6, 8.7 AND 8.8, AFTER THE
CLOSING, SELLER AGREES TO DEFEND AND INDEMNIFY THE PURCHASER INDEMNITEES AND
SAVE AND HOLD EACH OF THEM HARMLESS AGAINST ANY LOSSES INCURRED BY THEM AS A
RESULT OF (I) THE PRESENCE OR RELEASE OF, OR HUMAN EXPOSURE TO, HAZARDOUS
SUBSTANCES IN, ON, OR BENEATH ANY LEASED REAL PROPERTY OR ANY REAL PROPERTY, IN
EACH CASE, TO THE EXTENT EXISTING OR OCCURRING ON OR PRIOR TO THE CLOSING DATE;
AND (II) ANY VIOLATION OF ANY ENVIRONMENTAL LAW BY THE BUSINESS, ANY ASSET
SELLING ENTITY (IN CONNECTION WITH THE BUSINESS) OR ANY CONVEYED ENTITY, TO THE
EXTENT RELATING TO OR ARISING FROM ACTS OR OMISSIONS OCCURRING ON OR PRIOR TO
THE CLOSING DATE; PROVIDED IT IS UNDERSTOOD THAT NO LOSSES RELATING TO OR
ARISING FROM ANY VIOLATION OCCURRING AFTER THE CLOSING DATE ARE RECOVERABLE
UNDER THIS SECTION 8.2(B)(II).
(C)
CERTAIN LIMITATIONS. (I) NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, (X) FOR ALL ENVIRONMENTAL STANDALONE CLAIMS MADE OR
EXISTING AFTER THE TENTH ANNIVERSARY OF THE CLOSING DATE, SELLER SHALL NOT BE
LIABLE FOR SUCH CLAIMS UNLESS AND UNTIL THE AGGREGATE AMOUNT OF ALL
INDEMNIFIABLE LOSSES RELATING TO SUCH CLAIMS AND INCURRED AFTER THE TENTH
ANNIVERSARY OF THE CLOSING DATE EQUALS OR EXCEEDS ONE MILLION DOLLARS
($1,000,000), IN WHICH CASE SELLER SHALL BE LIABLE ONLY FOR THE AMOUNT OF THE
LOSSES IN EXCESS OF SUCH AMOUNT; (Y) FROM AND AFTER THE CLOSING, THE MAXIMUM
AGGREGATED AMOUNT OF INDEMNIFIABLE LOSSES WHICH MAY BE RECOVERED UNDER
SECTION 8.2(B) SHALL BE THIRTY MILLION DOLLARS ($30,000,000); AND (Z) SELLER
SHALL NOT BE LIABLE FOR ANY ENVIRONMENTAL STANDALONE CLAIM UNLESS SUCH CLAIM IS
MADE HEREUNDER PRIOR TO THE DATE THAT IS 20 YEARS FROM THE CLOSING DATE.
(II) WITH RESPECT TO ANY AND ALL ENVIRONMENTAL INDEMNITY CLAIMS, PURCHASER AND
SELLER, AS THE CASE MAY BE, SHALL ACT ONLY IN A "COMMERCIALLY REASONABLE MANNER"
WHICH SHALL MEAN THE MOST COST-EFFECTIVE AND COMMERCIALLY REASONABLE METHOD FOR
INVESTIGATION, REMEDIATION, REMOVAL, CORRECTIVE ACTION, CONTAINMENT, MONITORING
AND/OR OTHER RESPONSE ACTION PERMITTED BY APPLICABLE ENVIRONMENTAL LAWS,
DETERMINED FROM THE PERSPECTIVE OF A REASONABLE BUSINESS PERSON ACTING (WITHOUT
REGARD TO THE AVAILABILITY OF INDEMNIFICATION HEREUNDER) TO ACHIEVE COMPLIANCE
WITH ENVIRONMENTAL LAWS IN EFFECT AS OF THE CLOSING (IT BEING UNDERSTOOD THAT
COMMERCIALLY REASONABLE MANNER SHALL INCLUDE THE USE OF RISK-BASED REMEDIES,
INSTITUTIONAL OR ENGINEERING CONTROLS, OR DEED RESTRICTIONS, BASED ON THE USE OF
THE PROPERTY AT CLOSING).
(III) SELLER SHALL HAVE NO OBLIGATIONS FOR ANY ENVIRONMENTAL INDEMNITY CLAIM TO
THE EXTENT LOSSES THEREUNDER RESULT FROM OR ARE THE