TO
EVIDENCE AND PERFECT ANY SUBROGATION RIGHTS GRANTED PURSUANT TO THIS
SECTION 7.9.
7.10
LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
ARTICLE VII, IN NO EVENT WILL ANY INDEMNIFIED PARTY BE ENTITLED TO RECEIVE
INDEMNIFICATION UNDER THIS ARTICLE VII FOR LOSSES RELATING TO ANY MATTER FOR ANY
CONSEQUENTIAL OR PUNITIVE DAMAGES OTHER THAN TO THE EXTENT THAT AN INDEMNIFIED
PARTY IS SEEKING TO OBTAIN THROUGH INDEMNIFICATION REIMBURSEMENT OF LOSSES
RESULTING FROM A CONSEQUENTIAL OR PUNITIVE DAMAGE AWARD AGAINST IT IN A THIRD
PARTY CLAIM.
7.11
TAX TREATMENT OF SELLER INDEMNIFICATION PAYMENTS.
ANY
INDEMNIFICATION PAYMENTS MADE BY THE SELLERS PURSUANT TO THIS ARTICLE VII
(INCLUDING BY RELEASE FROM THE INDEMNITY AND EARNOUT ESCROW FUNDS) SHALL BE
TREATED FOR ALL TAX PURPOSES AS REDUCTIONS TO THE PURCHASE PRICE PAID FOR THE
SHARES.
7.12
EXCLUSIVE REMEDY.
(A)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR
OTHERWISE, BUT SUBJECT TO SECTION 7.12(B), FOLLOWING THE CLOSING, EXCEPT FOR
CLAIMS ARISING OUT OF THE MATTERS DESCRIBED IN CLAUSES (A) THROUGH (D) OF
SECTION 7.3 (FOR WHICH THE PURCHASER MAY SEEK ANY REMEDY AVAILABLE TO IT IN LAW
OR IN EQUITY, BUT SUBJECT TO THE LIMITATIONS SET FORTH IN SECTIONS 7.1, 7.3,
7.7, 7.8, 7.9 AND 7.10 AND ARTICLE X), AND SUBJECT TO THE PURCHASER'S RIGHT TO
SPECIFICALLY ENFORCE THE PROVISIONS OF SECTIONS 1.1, 1.3 AND 1.6 AND EACH
AGREEMENT AND COVENANT IN ARTICLE V OR ARTICLE X THAT BY ITS TERMS IS TO BE
PERFORMED IN WHOLE OR IN PART AFTER THE CLOSING, (I) THE SELLERS SHALL HAVE NO
LIABILITY OF ANY KIND TO THE PURCHASER OR ANY OTHER PURCHASER INDEMNIFIED PARTY,
SUBJECT ONLY TO THE PURCHASER'S RIGHT TO BRING INDEMNIFICATION CLAIMS PURSUANT
TO THIS ARTICLE VII SOLELY AGAINST THE INDEMNITY AND EARNOUT ESCROW FUNDS IN
ACCORDANCE WITH SECTION 1.4 AND THE INDEMNITY AND EARNOUT ESCROW AGREEMENT (BUT
WITH RESPECT TO THE MATTERS DESCRIBED IN CLAUSE (E) OF SECTION 7.3, SUBJECT TO
THE ADDITIONAL INDEMNIFICATION RIGHTS EXPRESSLY SET FORTH IN SECTION 7.3), WHICH
SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE PURCHASER INDEMNIFIED PARTIES FOR
BREACH OF ANY REPRESENTATIONS AND WARRANTIES OR COVENANTS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT; AND (II) THE PURCHASER, ON BEHALF OF ITSELF AND ALL
OTHER PURCHASER INDEMNIFIED PARTIES, HEREBY IRREVOCABLY WAIVES ANY RIGHT TO ANY
OTHER REMEDY FOR ANY BREACH OF ANY REPRESENTATIONS AND WARRANTIES AND COVENANTS
AND AGREEMENTS CONTAINED IN THIS AGREEMENT.
AFTER THE CLOSING, EXCEPT FOR
MATTERS FOR WHICH SPECIFIC PERFORMANCE IS AN APPROPRIATE REMEDY, THE SELLERS'
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF THIS AGREEMENT BY
PURCHASER OR ITS SUBSIDIARIES SHALL BE THE INDEMNIFICATION PROVIDED BY THIS
ARTICLE VII.
WITHOUT LIMITING THE GENERALITY OF THE PRECEDING TWO SENTENCES OF
THIS SECTION 7.12(A), THE RIGHTS AND CLAIMS WAIVED BY THE PURCHASER AND THE
PURCHASER INDEMNIFIED PARTIES, ON THE ONE HAND, AND THE SELLERS, ON THE OTHER
HAND, UNDER THIS SECTION 7.12(A) INCLUDE CLAIMS FOR CONTRIBUTION OR OTHER RIGHTS
OF RECOVERY ARISING OUT OF OR RELATING TO ANY ENVIRONMENTAL LAW
60
(WHETHER NOW