AGENT;
50
(D)
WITH RESPECT TO ANY CLAIMS FOR PURCHASER DAMAGES REDUCING THE
CARRYHOLDERS' HOLDBACK, WITH THE CONSENT OF THE CARRYHOLDERS' AGENT;
provided, however, that no claims for Purchaser Damages arising from a breach of
a BCCM Shareholder Representation, a Management Member Representation and
Warranty or a Title Representation may be settled without the consent of the
breaching Seller.
SECTION 12.7
INSURANCE.
THE INDEMNIFYING PARTY SHALL BE SUBROGATED TO THE
RIGHTS OF THE INDEMNIFIED PARTY IN RESPECT OF ANY INSURANCE RELATING TO DAMAGES
TO THE EXTENT OF ANY INDEMNIFICATION PAYMENTS MADE HEREUNDER, INCLUDING ANY
INDEMNIFICATION PAYMENTS MADE PURSUANT TO SECTION 12.9.
SECTION 12.8
NO DUPLICATION.
ANY LIABILITY FOR INDEMNIFICATION HEREUNDER
SHALL BE DETERMINED WITHOUT DUPLICATION OF RECOVERY BY REASON OF THE STATE OF
FACTS GIVING RISE TO SUCH LIABILITY CONSTITUTING A BREACH OF MORE THAN ONE
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT.
SECTION 12.9
CONTRIBUTION AGREEMENT INDEMNITIES.
THE INDEMNIFICATION
OBLIGATIONS OF DS LLC, BCCM AND CROMPTON SET FORTH IN ARTICLE VII OF THE
CONTRIBUTION AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOLLOWING THE
CLOSING DATE; PROVIDED THAT NO INDEMNIFICATION OBLIGATIONS OF DS LLC SHALL BE
ENFORCEABLE WITH RESPECT TO ANY LIABILITY, DEMAND, CLAIM, CAUSE OF ACTION,
ASSESSMENT, LOSS, DAMAGE, COST OR EXPENSE FOR WHICH SELLERS WOULD HAVE AN
OBLIGATION TO INDEMNIFY THE PURCHASER HEREUNDER; AND PROVIDED FURTHER THAT THE
INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.2 OF THE CONTRIBUTION
AGREEMENT SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT ON THE CLOSING
DATE, EXCEPT FOR LOSSES (AS DEFINED IN THE CONTRIBUTION AGREEMENT) RELATED TO
(I) PRODUCT LIABILITY CLAIMS, (II)
ENVIRONMENTAL CLAIMS AND (III) WORKERS
COMPENSATIONS CLAIMS.
SECTION 12.10 REMEDIES.
(A)
THE PARTIES AGREE THAT THE SOLE AND EXCLUSIVE
REMEDY OF ANY PARTY HERETO OR THEIR RESPECTIVE AFFILIATES AND INDEMNITEES WITH
RESPECT TO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS OR ANY OTHER CLAIMS
RELATING TO THE BUSINESS, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE
ANCILLARY AGREEMENTS AND THE TRANSACTIONS PROVIDED FOR HEREIN AND THEREIN OR
CONTEMPLATED HEREBY OR THEREBY SHALL BE LIMITED TO THE INDEMNIFICATION
PROVISIONS SET FORTH IN THIS ARTICLE XII AND, IN FURTHERANCE OF THE FOREGOING,
EACH OF THE PARTIES, ON BEHALF OF ITSELF, ITS AFFILIATES AND INDEMNITEES, HEREBY
WAIVES AND RELEASES THE OTHER PARTIES HERETO (AND SUCH OTHER PARTIES' AFFILIATES
AND INDEMNITEES) FROM, TO THE FULLEST EXTENT PERMITTED UNDER ANY APPLICABLE LAW,
ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT OR ITS AFFILIATES OR
INDEMNITEES MAY HAVE AGAINST THE OTHER PARTY HERETO; PROVIDED THAT THIS
LIMITATION SHALL NOT APPLY IN THE EVENT OF FRAUD; AND PROVIDED FURTHER THAT IF
AN INDEMNIFYING PARTY SHALL BREACH OR THREATEN TO COMMIT A BREACH OF ANY OF ITS
RESTRICTIVE COVENANTS SET FORTH IN ARTICLE IX OF THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT (THE "RESTRICTIVE COVENANTS"), ANY INDEMNIFIED PARTY SHALL HAVE THE
RIGHT IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER RIGHTS AND REMEDIES
AVAILABLE TO SUCH INDEMNIFIED PARTY, UNDER LAW OR IN EQUITY, TO SEEK TO HAVE THE
RESTRICTIVE COVENANTS SPECIFICALLY ENFORCED BY ANY