Form Apa - Asset Purchase Agreement Page 35
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of Buyer pursuant to Section 2.6, Seller shall indemnify and hold harmless Buyer, its
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Affiliates, successors and assigns, from and against any and all Taxes of the Seller for
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any Taxes in respect of the Purchased Assets and income of the Business for the period or
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portions of periods ending prior to the Closing Date. Buyer shall indemnify and hold
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harmless Seller, its Affiliates, successors and assigns, from and against any and all Taxes
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of the Buyer for any Taxes in respect of the Purchased Assets and income of the Business
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for the period or portions of periods beginning on and after the Closing Date.
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10.4
Insurance Proceeds
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With respect to any Claim required to be indemnified pursuant to this Agreement,
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so long as the Indemnifying Party has complied with its indemnification obligations on
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such Claim, (a) to the extent available, the Indemnified Party shall assign to the
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Indemnifying Party any applicable proceeds under any insurance policy which covers the
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matter which is the subject of the indemnification and shall take reasonable steps to
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insure that the Indemnifying Party obtains the benefits of such policy, including
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providing any notices as required under such policy; and (b) if the Indemnified Party
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receives insurance proceeds with respect to any Damages paid by the Indemnifying Party,
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then the Indemnified Party shall reimburse the Indemnifying Party in an amount
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equivalent to such proceeds up to the amount actually paid by the Indemnifying Party.
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10.5
Exclusive Remedy
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The rights of Buyer under Section 10.2 shall be the exclusive remedy of Buyer
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with respect to claims based upon a breach or alleged breach of the representations,
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warranties and covenants of Seller contained herein or in any other manner relating to the
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Business or the transactions contemplated hereby. The rights of Seller under
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Section 10.2 shall be the exclusive remedy of Seller with respect to claims based upon a
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breach or alleged breach of the representations, warranties and covenants of Buyer
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contained herein. Except as expressly set forth in this Agreement, neither Seller nor any
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of its Representatives or Affiliates makes or has made any representations or warranties,
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express or implied, in connection with the transactions contemplated by this Agreement.
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Without limiting the generality of the foregoing, except as expressly set forth in this
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Agreement, (i) the Purchased Assets shall be transferred to Buyer pursuant to this
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Agreement in their present condition, "AS IS" and without any warranty, express or
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implied; and (ii) no patent or latent physical condition or defect in any of the Purchased
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Assets, whether or not now known or discovered, shall affect the rights of either party.
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10.6
Own Investigation
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Buyer acknowledges that except for Seller's express representations and
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warranties set forth in this Agreement, Buyer is relying upon Buyer's own independent
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investigation of the Purchased Assets in entering into this Agreement and purchasing the
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Purchased Assets. Buyer acknowledges that prior to the Closing, Buyer will fully and
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thoroughly investigate and inspect each and every aspect of the Purchased Assets, and all
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factors relevant thereto, including, without limitation, the physical condition of the
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Purchased Assets, the Purchased Assets' compliance with all applicable laws, including,
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