IN
PROVIDING SUCH INDEMNIFYING PARTY
WITH REASONABLE ACCESS TO ITS BOOKS AND
RECORDS DURING NORMAL BUSINESS HOURS FOR THIS PURPOSE.
IF THE RESULTS OF AUDIT
OR INSPECTION SHOW AN OVERPAYMENT TO ANY INDEMNITEE UPON ANY SUCH CLAIM, THEN
SUCH INDEMNIFYING PARTY SHALL REPAY THE AMOUNT OF SUCH OVERPAYMENT WITHIN
FIFTEEN (15) DAYS OF THE COMPLETION OF SUCH AUDIT OR INSPECTION.
11.03
LIMITATIONS ON INDEMNIFICATION.
(A)
THE REMEDIES PROVIDED IN THIS ARTICLE XI SHALL BE EXCLUSIVE AND
SHALL PRECLUDE ASSERTION BY EITHER PARTY OF ANY OTHER RIGHTS OR THE SEEKING OF
ANY AND ALL OTHER REMEDIES AGAINST THE OTHER FOR CLAIMS BASED ON THIS AGREEMENT.
(B)
ANY CLAIMS FOR INDEMNITY UNDER THIS AGREEMENT SHALL BE SUBJECT TO
THE FOLLOWING LIMITATIONS AND ADJUSTMENTS:
(I) THE PROVISIONS OF SECTION 11.02
SHALL BE EFFECTIVE ONLY WHEN THE AGGREGATE AMOUNT OF ALL DAMAGES FOR WHICH A
PARTY MAY BE LIABLE UNDER THIS ARTICLE XI EXCEEDS TWO PERCENT (2%) OF THE
PURCHASE PRICE, IN WHICH CASE SUCH PARTY SHALL BE LIABLE FOR ONLY SUCH AMOUNTS
AS EXCEED TWO PERCENT (2%) OF PURCHASE PRICE; (II) THE AMOUNT OF ANY CLAIM BY
EITHER PARTY FOR INDEMNIFICATION SHALL BE SUBJECT TO ADJUSTMENT TO REFLECT (A)
ANY ACTUAL DIRECT OR INDIRECT INCOME TAX BENEFIT (TAKING INTO ACCOUNT THE AMOUNT
OF ANY INDEMNIFICATION ACTUALLY RECEIVED) RESULTING THEREFROM TO THE INDEMNITEE,
(B) ANY INSURANCE COVERAGE WITH RESPECT THERETO AND (C) ANY AMOUNTS RECOVERABLE
FROM THIRD PARTIES BASED ON CLAIMS THE INDEMNITEE HAS AGAINST SUCH THIRD PARTIES
WHICH WOULD REDUCE THE DAMAGES THAT COULD OTHERWISE BE SUSTAINED; (III) SUBJECT
TO THE PROVISIONS OF SECTION 11.03(C) HEREOF, IN NO EVENT SHALL A PARTY BE
LIABLE, IN THE AGGREGATE, FOR INDEMNIFICATION HEREUNDER IN AN AMOUNT GREATER
THAN TWENTY PERCENT (20%) OF PURCHASE PRICE; AND (IV) NEITHER PARTY HERETO SHALL
BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES.
(c)
Seller's liability under Section 11.03(b) shall be limited to an
amount which, when aggregated with the Purchase Price reductions under Section
2.03(d) and (e) hereof, does not exceed the Purchase Price.
11.04
PURCHASER'S RELEASE OF SELLER.
EXCEPT FOR THE RIGHTS OF
PURCHASER SET
FORTH IN THIS ARTICLE XI, COMMENCING ON THE CLOSING DATE, PURCHASER SHALL
RELEASE, HOLD HARMLESS AND FOREVER DISCHARGE SELLER FROM ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES (INCLUDING FINES AND CIVIL PENALTIES), OR CAUSES OF ACTION
AT LAW OR IN EQUITY (INCLUDING ANY ACTIONS ARISING UNDER ENVIRONMENTAL LAWS),
DESTRUCTION, LOSS OR DAMAGE OF ANY KIND OR CHARACTER, WHETHER KNOWN OR UNKNOWN,
VISIBLE OR INVISIBLE, TO THE PERSON OR
42
PROPERTY OF PURCHASER RESULTING FROM OR ARISING OUT OF THE PRESENCE OR RELEASE
OF ANY HAZARDOUS SUBSTANCE AT, ON, UNDER, IN, ABOUT OR FROM COMPANY'S REAL
PROPERTY. PURCHASER HEREBY ACKNOWLEDGES, AGREES, REPRESENTS, AND WARRANTS THAT
FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO
CLAIMS THAT ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED BY EITHER
PARTY, AND PURCHASER FURTHER ACKNOWLEDGES, AGREES, REPRESENTS, AND WARRANTS THAT
THIS RELEASE HAS BEEN NEGOTIATED AND AGREED UPON IN LIGHT