WARRANTY, COVENANT,
UNDERTAKING OR OTHER AGREEMENT OF SELLER CONTAINED IN THIS AGREEMENT, OR
(II) ANY PROPERTY DAMAGE OR PERSONAL INJURIES OCCURRING AT THE REAL PROPERTY
PRIOR TO THE CLOSING.
SELLER SHALL ALSO INDEMNIFY PURCHASER, AND HOLD PURCHASER
HARMLESS AGAINST, ALL LOSSES ATTRIBUTABLE TO VIOLATIONS BY SELLER OF APPLICABLE
ENVIRONMENTAL LAWS AND REGULATIONS DURING THE PERIOD OF SELLER'S OWNERSHIP OF
ITS REAL PROPERTY.
17.3
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS: LIMITATIONS
ON INDEMNITY.
THE REPRESENTATIONS AND WARRANTIES OF THE PARTIES CONTAINED IN
THIS AGREEMENT, OR IN ANY INSTRUMENT DELIVERED PURSUANT TO THIS AGREEMENT, WILL
SURVIVE THE CLOSING DATE AND WILL REMAIN IN FULL FORCE AND EFFECT THEREAFTER FOR
A PERIOD OF TWELVE (12) MONTHS; PROVIDED, HOWEVER, THAT SUCH REPRESENTATIONS OR
WARRANTIES SHALL SURVIVE (IF AT ALL) BEYOND SUCH PERIOD WITH RESPECT TO ANY
INACCURACY THEREIN OR BREACH THEREOF, NOTICE OF WHICH SHALL HAVE BEEN DULY GIVEN
WITHIN SUCH
TIME PERIOD IN ACCORDANCE WITH THIS SECTION 17.3. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED HEREIN, PURCHASER SHALL NOT BE ENTITLED TO RECOVER LOSSES
FROM SELLER NOR SHALL SELLER BE ENTITLED TO RECOVER LOSSES FROM PURCHASER UNLESS
AND UNTIL THE TOTAL OF ALL CLAIMS FOR LOSSES WITH RESPECT TO ANY INACCURACY OR
BREACH OF ANY SUCH REPRESENTATIONS OR WARRANTIES OR BREACH OF ANY COVENANTS,
UNDERTAKINGS OR OTHER AGREEMENTS, WHETHER SUCH CLAIMS ARE BROUGHT UNDER THIS
SECTION 18(C) OR OTHERWISE, EXCEEDS ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000) IN THE AGGREGATE.
IF THE TOTAL AMOUNT OF SUCH LOSSES EXCEEDS ONE
HUNDRED FIFTY THOUSAND DOLLARS ($150,000), THEN THE PARTY ENTITLED TO RECOVER
HEREUNDER SHALL BE ENTITLED TO RECOVER THE FULL AMOUNT OF SUCH LOSSES AND NOT
MERELY THE PORTION OF SUCH DAMAGES EXCEEDING ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000); PROVIDED, HOWEVER, THAT THE AGGREGATE AMOUNT OF LOSSES THAT MAY BE
RECOVERED BY PURCHASER FROM SELLER SHALL NOT EXCEED FIVE PERCENT (5%) OF THE
PURCHASE PRICE.
FOR PURPOSES OF APPLYING THE LIMITATIONS SET FORTH IN THIS
SECTION 18.3, THE LOSSES OF THE PURCHASER UNDER THIS AGREEMENT AND THE LOSSES OF
LUCKY LUCY UNDER THE ASSET PURCHASE AGREEMENT SHALL BE AGGREGATED.
SIMILARLY,
THE PURCHASE PRICE UNDER THIS AGREEMENT AND UNDER THE ASSET PURCHASE AGREEMENT
SHALL BE AGGREGATED.
17.4
NOTICE AND OPPORTUNITY TO DEFEND.
IF AN EVENT OCCURS WHICH A PARTY
ASSERTS IS AN INDEMNIFIABLE EVENT PURSUANT TO SECTION 17.1 OR 17.2, THE PARTY
SEEKING INDEMNIFICATION (THE "INDEMNITEE") SHALL PROMPTLY NOTIFY THE OTHER PARTY
OBLIGATED TO PROVIDE INDEMNIFICATION (THE "INDEMNIFYING PARTY").
IF SUCH EVENT
INVOLVES (A) ANY CLAIM OR (B) THE COMMENCEMENT OF ANY ACTION OR PROCEEDING BY A
THIRD PERSON, THE INDEMNITEE WILL GIVE SUCH INDEMNIFYING PARTY PROMPT WRITTEN
NOTICE OF SUCH CLAIM OR THE COMMENCEMENT OF SUCH ACTION OR PROCEEDING; PROVIDED,
HOWEVER, THAT THE INDEMNITEE'S FAILURE TO PROVIDE PROMPT NOTICE AS PROVIDED
HEREIN WILL RELIEVE THE INDEMNIFYING PARTY OF ITS OBLIGATIONS HEREUNDER ONLY TO
THE EXTENT THAT SUCH FAILURE PREJUDICES THE INDEMNIFYING PARTY HEREUNDER.
IF
ANY SUCH ACTION IS BROUGHT AGAINST ANY INDEMNITEE AND IT NOTIFIES THE
INDEMNIFYING PARTY OF THE COMMENCEMENT THEREOF, THE INDEMNIFYING PARTY SHALL