into any compromise
or settlement of such Indemnified Transfer Tax Claim, in such Seller Indemnified
Person's sole discretion, without the Indemnifying Party's prior consent, and no
Seller Indemnified Person shall be required to make any related counterclaim or
cross-complaint against any Person in connection with such Indemnified Transfer
Tax Claim or otherwise cooperate with the Indemnifying Party or its counsel in
contesting any such Indemnified Transfer Tax Claim.
SECTION 13.4
SELLER'S GENERAL LIABILITY LIMITATION.
(A)
NOTWITHSTANDING ANYTHING HEREIN PROVIDED TO THE CONTRARY, SELLER SHALL HAVE NO
LIABILITY TO BUYER OR ANY OF THE OTHER BUYER INDEMNIFIED PERSONS PURSUANT TO
SECTION 13.2 OR FOR ANY BREACH BY SELLER OF ANY REPRESENTATION OR
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WARRANTY MADE BY SELLER IN CLAUSES (A) AND (D) THROUGH (U) OF SECTION 4.1 TO THE
EXTENT THAT THE AGGREGATE AMOUNT OF ALL COVERED LIABILITIES ATTRIBUTABLE TO ALL
SUCH LIABILITIES OR BREACHES EXCEEDS AN AMOUNT EQUAL TO FIFTY PERCENT (50%) OF
THE ADJUSTED PURCHASE PRICE.
(b)
Notwithstanding anything herein provided to the contrary but
without in any way affecting the obligations of a Buyer Indemnified Person to
notify Seller of a third party claim pursuant to Section 13.3, Seller shall not
have any liability to a Buyer Indemnified Person with respect to any Covered
Liability pursuant to Section 13.2 unless and until Buyer has used reasonable
efforts to enforce its rights and remedies, if any, with respect to such Covered
Liability against any other Person pursuant to (i) any insurance maintained for
the joint account under any operating agreement with respect to the Assets and
(ii) any other agreements for insurance, indemnification, guarantee or similar
assurances which may be included in the Assets.
SECTION 13.5
MATERIALITY EXCLUSION.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, FOR PURPOSES OF DETERMINING IF THERE HAS
BEEN A BREACH OF ANY REPRESENTATION OR WARRANTY HEREUNDER BY SELLER OR BUYER AND
THE AMOUNT OF THE COVERED LIABILITIES IN RESPECT THEREOF, THE REPRESENTATIONS
AND WARRANTIES OF SELLER AND BUYER SHALL, FOR PURPOSES OF THIS ARTICLE XIII, BE
READ WITHOUT GIVING EFFECT TO ANY MATERIALITY, MATERIAL ADVERSE EFFECT OR
QUALIFICATION WITH A SIMILAR MEANING IN SUCH REPRESENTATION OR WARRANTY.
ARTICLE XIV.
TERMINATION; REMEDIES
SECTION 14.1
TERMINATION.
(A)
TERMINATION OF AGREEMENT.
THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY MAY BE TERMINATED AT ANY TIME PRIOR TO THE CLOSING:
(1)
BY THE MUTUAL CONSENT OF SELLER AND BUYER; OR
(2)
IF THE CLOSING HAS NOT OCCURRED BY THE CLOSE OF BUSINESS ON THE
CLOSING DATE, THEN (I) BY SELLER IF ANY CONDITION SPECIFIED IN SECTION 9.1 HAS
NOT BEEN SATISFIED ON OR BEFORE SUCH CLOSE OF BUSINESS, AND SHALL NOT
THERETOFORE HAVE BEEN WAIVED BY SELLER, OR (II) BY BUYER IF ANY CONDITION
SPECIFIED IN SECTION 9.2 HAS NOT BEEN SATISFIED ON OR BEFORE SUCH CLOSE OF
BUSINESS, AND SHALL NOT THERETOFORE HAVE BEEN WAIVED BY BUYER; PROVIDED, IN EACH
CASE, THAT THE FAILURE TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY ON OR
BEFORE SUCH DATE DID NOT RESULT FROM THE FAILURE BY THE PARTY OR