AGREEMENT TO THE
CONTRARY, SELLER WILL NOT BE OBLIGATED TO INDEMNIFY BUYER FOR ANY DAMAGES UNDER
SECTION 8.2(A)(I) UNLESS AND UNTIL THE AMOUNT OF ALL DAMAGES EXCEEDS $50,000
(THE "THRESHOLD"), PROVIDED, THAT IF BUYER'S DAMAGES EXCEED SUCH THRESHOLD, THEN
BUYER SHALL BE ENTITLED TO INDEMNIFICATION AS SET FORTH IN THIS ARTICLE VIII FOR
THE FULL AMOUNT OF ALL SUCH DAMAGES.
NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, SELLER SHALL NOT BE LIABLE TO INDEMNIFY, REIMBURSE,
OR OTHERWISE HOLD HARMLESS BUYER OR ITS RELATED PERSONS FOR ANY DAMAGES,
LIABILITIES, OR OTHER AMOUNTS UNDER SECTION 8.2(A)(I) OR
SECTION 8.2(A)(II) (OTHER THAN THE COVENANTS SET FORTH IN SECTION 7.4 (C) AND
(E) OF THIS AGREEMENT, WHICH SHALL NOT BE SUBJECT TO THE CAP (AS DEFINED
BELOW)), INDIVIDUALLY OR IN THE AGGREGATE, IN EXCESS OF $2,400,000 (THE "CAP").
8.5
SPECIFIC PERFORMANCE.
IF EITHER PARTY BREACHES ANY OF ITS
COVENANTS, DUTIES OR OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE OTHER PARTY
WOULD ENCOUNTER EXTREME DIFFICULTY IN ATTEMPTING TO PROVE THE ACTUAL AMOUNT OF
DAMAGES SUFFERED BY THEM AS A RESULT OF SUCH BREACH AND WOULD NOT BE REASONABLY
OR ADEQUATELY COMPENSATED IN DAMAGES IN ANY ACTION AT LAW.
IN ADDITION TO ANY
OTHER REMEDY A PARTY MAY HAVE AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE, IF THE
OTHER PARTY BREACHES THIS AGREEMENT, THEN THE FIRST PARTY WILL BE ENTITLED TO
SEEK AND RECEIVE TEMPORARY, PRELIMINARY AND PERMANENT INJUNCTIVE AND OTHER
EQUITABLE RELIEF FROM ANY GOVERNMENTAL BODY OF COMPETENT JURISDICTION TO ENFORCE
ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR OTHERWISE TO PREVENT VIOLATION OF THIS
AGREEMENT.
NO REMEDY CONFERRED BY ANY OF THE SPECIFIC PROVISIONS OF THIS
AGREEMENT IS INTENDED TO BE EXCLUSIVE OF ANY OTHER REMEDY THAT IS OTHERWISE
AVAILABLE AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE.
SUBJECT TO THE LAST
SENTENCE OF SECTION 8.7 REGARDING THE PAYMENT OF EXPENSES OF ARBITRATION, IN ANY
ACTION, SUIT OR OTHER PROCEEDING
25
INSTITUTED, CONCERNING OR ARISING OUT OF THIS AGREEMENT, THE PREVAILING PARTY
WILL RECOVER ALL OF SUCH PARTY'S COSTS AND REASONABLE ATTORNEYS' FEES.
8.6
EXCLUSIVE REMEDY.
EXCEPT WITH RESPECT TO CLAIMS BASED ON FRAUD OR
WILLFUL BREACH AND FOR EQUITABLE REMEDIES AS PROVIDED FOR IN SECTION 8.5, THE
INDEMNIFICATION PROVISIONS OF THIS ARTICLE VIII ARE THE EXCLUSIVE REMEDY
FOLLOWING THE CLOSING (I) FOR ANY BREACHES OR ALLEGED BREACHES OF ANY
REPRESENTATION, WARRANTY OR OTHER PROVISION OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND (II) FOR ANY HAZARDOUS MATERIAL PRESENT ON,
IN, OR ABOUT THE MOUNTAIN VIEW FACILITIES (INCLUDING, WITHOUT LIMITATION THE
SOIL, GROUNDWATER, BUILDING MATERIALS, FIXTURES AND EQUIPMENT THEREOF) OR
OTHERWISE WITH RESPECT TO THE COMPLIANCE OF THE BUSINESS OR THE MOUNTAIN VIEW
FACILITIES WITH ANY ENVIRONMENTAL LAW AND, WITHOUT LIMITATION OF THE FOREGOING,
EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS THAT ARE OR MAY OTHERWISE BE
AVAILABLE TO IT AT LAW OR EQUITY IN RESPECT OF THIS AGREEMENT, ANY HAZARDOUS
MATERIAL PRESENT ON, IN, OR ABOUT THE MOUNTAIN VIEW FACILITIES (INCLUDING,
WITHOUT LIMITATION THE SOIL, GROUNDWATER, BUILDING