"LIABILITY
CAP").
NOTWITHSTANDING THE FOREGOING, ANY CLAIMS FOR INDEMNITY BY BUYER UNDER
THIS AGREEMENT RELATING TO FRAUD OR THE COMPANY'S FEDERAL AND STATE TAX
DEDUCTION RELATING TO THE COMPANY'S 2007 INVENTORY RESERVE DEDUCTION SHALL NOT
BE SUBJECT TO THE AGGREGATE BASKET, BUT SHALL BE PAID IN FULL IMMEDIATELY AND
SHALL NOT BE SUBJECT TO THE LIABILITY CAP.
10.7
LIMITATIONS ON AMOUNT - BUYER.
BUYER SHALL HAVE NO
LIABILITY FOR INDEMNIFICATION WITH RESPECT TO THE MATTERS DESCRIBED IN CLAUSE
(A) OR (B) OF SECTION 10.4 UNTIL ALL CLAIMS FOR INDEMNIFICATION AGAINST THE
BUYER EXCEED THE AGGREGATE BASKET.
ONCE THE AGGREGATE CLAIMS FOR
INDEMNIFICATION AGAINST THE BUYER EXCEED THE AGGREGATE BASKET, THEN SELLERS
SHALL BE ENTITLED TO RECOVER THE ENTIRE AMOUNT OF SUCH AGGREGATE CLAIMS UNDER
THE APPLICABLE PROVISION OF SECTION 10.4; PROVIDED, HOWEVER, THAT EXCEPT AS
PROVIDED IN THE FOLLOWING SENTENCE, THE AGGREGATE LIABILITY FOR INDEMNITY CLAIMS
UNDER SECTION 10.4 SHALL NOT EXCEED THE LIABILITY CAP.
THE AMOUNT LIMITATIONS
WITH RESPECT TO THE AGGREGATE BASKET AND LIABILITY CAP SHALL NOT APPLY TO ANY
DAMAGES RELATING TO (I) A BREACH BY BUYER OF ANY COVENANT OR OBLIGATION IN
CONNECTION WITH THE DETERMINATION AND CALCULATION OF AND PAYMENT OF THE PURCHASE
PRICE, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE SUBORDINATED
CONTINGENT NOTES, THE DEFERRED PURCHASE PRICE, AND THE OPERATION OF THE COMPANY
IN ACCORDANCE WITH THE STANDARDS SET FORTH IN EXHIBIT 2.6(F) ATTACHED HERETO,
(II) ANY CLAIMS FOR INDEMNITY BY SELLERS UNDER THIS AGREEMENT RELATING TO FRAUD,
AND (III) ANY TAXES INCURRED AND PAYABLE BY THE COMPANY OR THE PARENT FROM AND
AFTER THE CLOSING.
74
10.8
RIGHT OF SET-OFF.
UPON NOTICE TO SELLERS
SPECIFYING IN REASONABLE DETAIL THE BASIS FOR SUCH SET-OFF, BUYER MAY SET-OFF
ANY AMOUNT TO WHICH IT MAY BE ENTITLED UNDER THIS ARTICLE X AGAINST AMOUNTS
OTHERWISE PAYABLE TO SELLERS UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO,
THE DEFERRED PURCHASE PRICE AND THE SUBORDINATED CONTINGENT NOTES; PROVIDED,
HOWEVER, THAT BUYER SHALL NOT EXERCISE SUCH RIGHT OF SET-OFF UNTIL THERE SHALL
HAVE BEEN A FINAL AND BINDING DETERMINATION BY A COURT OF COMPETENT JURISDICTION
WHICH IS NOT SUBJECT TO APPEAL AS TO THE VALIDITY OF ANY CLAIM OF SET-OFF BEFORE
BUYER EXERCISES ITS RIGHT OF SET-OFF.
NEITHER THE EXERCISE OF NOR THE FAILURE
TO EXERCISE SUCH RIGHT OF SET-OFF SHALL CONSTITUTE AN ELECTION OF REMEDIES OR
LIMIT BUYER IN ANY MANNER IN THE ENFORCEMENT OF ANY OTHER REMEDIES THAT MAY BE
AVAILABLE TO IT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, BUYER'S RIGHT
TO INDEMNIFICATION UNDER THIS ARTICLE X SHALL NOT BE LIMITED TO THE FUNDS
UTILIZED PURSUANT TO AND IN ACCORDANCE WITH THIS SECTION 10.8.
IF ANY PORTION
OF THIS SECTION 10.8 IS HELD TO BE INVALID OR UNENFORCEABLE BY ANY COURT OF
COMPETENT JURISDICTION, THEN THE PARTIES HERETO AGREE TO TAKE ALL REASONABLE
STEPS SO AS TO CAUSE THIS SECTION 10.8 TO BE HELD AS A VALID AND ENFORCEABLE
PROVISION.
10.9
PROCEDURE FOR INDEMNIFICATION - THIRD-PARTY CLAIMS.
(A)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED
PARTY UNDER ARTICLE X OF NOTICE OF