(A), THE INDEMNIFIED PARTY SHALL CONTINUE TO HAVE
THE RIGHT TO BE INDEMNIFIED WITH RESPECT TO SUCH CLAIM.
(B)
NO INDEMNIFICATION CLAIM (OTHER THAN A CLAIM FOR BREACH OF
SELLER'S OBLIGATIONS WITH RESPECT TO NON-ASSUMED LIABILITIES OR FRAUD OR
INTENTIONAL MISCONDUCT OR PURCHASER'S OBLIGATIONS WITH RESPECT TO ASSUMED
LIABILITIES OR FRAUD OR INTENTIONAL MISCONDUCT) MAY BE MADE AGAINST A PARTY FOR
INDEMNIFICATION PURSUANT TO THIS ARTICLE XII UNLESS THE AGGREGATE OF ALL
INDEMNIFIABLE LOSSES, DAMAGES AND EXPENSES WITH RESPECT TO THIS ARTICLE XII
SHALL EXCEED $250,000 ("THRESHOLD"), AND THEN THE INDEMNIFYING PARTY SHALL ONLY
BE REQUIRED TO PAY OR BE LIABLE FOR THE EXCESS OVER THE THRESHOLD.
FOR PURPOSES
OF APPLYING THIS PARAGRAPH (B) IN DETERMINING THE LOSSES, DAMAGES AND EXPENSES
RESULTING FROM ANY BREACH OF A REPRESENTATION OR WARRANTY THAT CONTAINS A
MATERIALITY STANDARD, SUCH REPRESENTATION OR WARRANTY SHALL BE READ AS IF IT DID
NOT CONTAIN SUCH MATERIALITY STANDARD.
(C)
THE INDEMNIFYING PARTY'S MAXIMUM LIABILITY TO THE OTHER PARTY
PURSUANT TO THIS AGREEMENT OTHER THAN INDEMNIFICATION CLAIMS BASED ON FRAUD OR
INTENTIONAL MISCONDUCT SHALL BE THIRTY PERCENT (30%) OF THE PURCHASE PRICE.
(D)
FOR THE PURPOSES OF THIS ARTICLE XII, IN COMPUTING SUCH AGGREGATE
AMOUNTS OF CLAIMS, THE AMOUNT OF EACH CLAIM SHALL BE DEEMED TO BE AN AMOUNT NET
OF ANY INSURANCE PROCEEDS AND ANY INDEMNITY, CONTRIBUTION OR OTHER SIMILAR
PAYMENT RECOVERABLE BY THE INDEMNIFIED PARTY OR ANY AFFILIATE FROM ANY THIRD
PARTY WITH RESPECT THERETO.
(E)
EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT AND THE ASSUMPTION AGREEMENT SHALL BE PURSUANT TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE XII.
IN FURTHERANCE OF THE
FOREGOING, EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE
AGAINST THE OTHER PARTY ARISING UNDER OR BASED UPON ANY LAW (INCLUDING ANY SUCH
RIGHTS, CLAIMS OR CAUSES OF ACTION ARISING UNDER OR BASED UPON COMMON LAW OR
OTHERWISE) OR ENVIRONMENTAL LAWS, INCLUDING THE RESOURCE CONSERVATION AND
RECOVERY ACT AND THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT.
(F)
EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER CERTIFICATE,
DOCUMENT,
36
INSTRUMENT OR AFFIDAVIT FURNISHED BY A PARTY IN ACCORDANCE WITH THE PROVISIONS
OF THIS AGREEMENT, SUCH PARTY IS NOT MAKING ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT WITH RESPECT TO THE MATTERS CONTAINED HEREIN.
ANYTHING
HEREIN TO THE CONTRARY NOTWITHSTANDING, NO BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT CONTAINED HEREIN OR ANY OTHER CERTIFICATE,
DOCUMENT, INSTRUMENT OR AFFIDAVIT FURNISHED BY A PARTY IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT SHALL GIVE RISE TO ANY RIGHT ON THE PART OF THE
OTHER PARTY, AFTER THE CONSUMMATION OF THE PURCHASE AND SALE OF THE FACILITY AND
THE PURCHASED ASSETS CONTEMPLATED HEREBY, TO RESCIND THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
(G)
SELLER SHALL HAVE NO LIABILITY UNDER ANY PROVISION OF THIS
AGREEMENT FOR