Nautilus 2009 Annual Report Download - page 90

8.5 Determination of Adverse Consequences . The amount of any Adverse Consequences shall be determined net of any insurance
proceeds for purposes of this Article 8. Indemnification payments under this Article 8 shall be paid by the Indemnifying Party without reduction
for any Tax Benefits available to the Indemnified Party. However, to the extent that the Indemnified Party recognizes Tax Benefits as a result of
any Adverse Consequences, the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment
or payments actually received from the Indemnifying Party with respect to such Adverse Consequences) to the Indemnifying Party as such Tax
Benefits are actually recognized by the Indemnified Party. For this purpose, the Indemnified Party shall be deemed to recognize a tax benefit
(“Tax Benefit”) with respect to a taxable year if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of
such taxable year, calculated by excluding any Tax items attributable to the Adverse Consequences from all taxable years, exceeds the
Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items
attributable to the Adverse Consequences and the receipt of indemnification payment under this Article 8 for all taxable years (to the extent
permitted by relevant Tax law and treating such Tax items as the last items taken into account for any taxable year). All indemnification
payments under this Article 8 shall be deemed adjustments to the Purchase Price.
8.6 Exclusive Remedy
. Buyer and Nautilus acknowledge and agree that the foregoing indemnification provisions in this Article 8 shall be
the exclusive remedy of Buyer and Nautilus with respect to Schwinn and the transactions contemplated by this Agreement. Without limiting the
generality of the foregoing, Buyer and Nautilus hereby waive any statutory, equitable, or common law rights or remedies relating to any
environmental, health, or safety matters.
ARTICLE 9 - TERMINATION
9.1 Termination of Agreement . Certain of the Parties may terminate this Agreement as provided below:
(a) Buyer and Nautilus may terminate this Agreement by mutual written consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written notice to Nautilus at any time prior to the Closing (i) in the event Nautilus
has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Buyer has notified
Nautilus of the breach, and the breach has continued without cure for a period of thirty (30) days after the notice of breach, or (ii) if the
Closing shall not have occurred on or before December 30, 2009, by reason of the failure of any condition precedent under Section 7.1
hereof (unless the failure results primarily from Buyer itself breaching any representation, warranty, or covenant contained in this
Agreement); and
(c) Nautilus may terminate this Agreement by giving written notice to Buyer at any time prior to the Closing (i) in the event Buyer
has breached any material
14