RECEIPT OF
THE SELLER'S WRITTEN NOTICE; PROVIDED, HOWEVER, THAT THE BUYER'S COUNSEL AND
CONSULTANTS SHALL BE REASONABLY SATISFACTORY TO THE SELLER.
FAILURE TO GIVE
PROMPT NOTICE SHALL NOT AFFECT THE INDEMNIFICATION OBLIGATIONS HEREUNDER IN THE
ABSENCE OF ACTUAL PREJUDICE.
IF THE SELLER DESIRES TO PARTICIPATE IN ANY SUCH
DEFENSE ASSUMED BY THE BUYER, IT MAY DO SO AT ITS SOLE COST AND EXPENSE.
IF THE
BUYER DECLINES TO ASSUME ANY SUCH DEFENSE, IT SHALL BE LIABLE FOR ALL REASONABLE
COSTS AND EXPENSES OF DEFENDING SUCH CLAIM INCURRED BY THE SELLER OR ITS
AFFILIATES, INCLUDING REASONABLE FEES AND DISBURSEMENTS OF THE SELLER'S COUNSEL
OR CONSULTANTS.
NEITHER PARTY SHALL, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTY (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED), SETTLE, COMPROMISE OR OFFER TO SETTLE OR COMPROMISE ANY SUCH CLAIM OR
DEMAND ON A BASIS WHICH WOULD RESULT IN THE IMPOSITION OF A CONSENT ORDER,
INJUNCTION OR DECREE WHICH WOULD RESTRICT THE FUTURE ACTIVITY OR CONDUCT OF THE
OTHER PARTY OR ANY SUBSIDIARY OR AFFILIATE THEREOF OR IF SUCH SETTLEMENT OR
COMPROMISE DOES NOT INCLUDE AN UNCONDITIONAL RELEASE OF THE OTHER PARTY FOR ANY
LIABILITY ARISING OUT OF SUCH CLAIM OR DEMAND.
(B)
THE BUYER SHALL NOT HAVE ANY OBLIGATION
UNDER SECTION 9.2(A)(I) TO INDEMNIFY THE SELLER AND ITS AFFILIATES FROM AND
AGAINST ANY SELLER LOSSES CAUSED BY THE BREACH OF ANY REPRESENTATIONS OR
WARRANTIES OF THE BUYER (I) UNLESS THE SELLER LOSSES FOR WHICH ANY OF THE SELLER
AND ITS AFFILIATES SEEKS INDEMNIFICATION IN RESPECT OF ANY BREACH, OR
AGGREGATION OF RELATED BREACHES, OF ANY SUCH REPRESENTATION OR WARRANTY IS EQUAL
TO OR GREATER THAN $50,000; PROVIDED THAT THE FOREGOING LIMITATION SHALL ONLY
APPLY TO THOSE REPRESENTATIONS AND WARRANTIES WHICH ARE NOT QUALIFIED WITH
RESPECT TO MATERIALITY AND (II) UNTIL THE AGGREGATE AMOUNT OF ALL SELLER LOSSES
FOR WHICH ANY OF THE SELLER AND ITS AFFILIATES SEEKS INDEMNIFICATION IN RESPECT
OF ALL BREACHES OF SUCH REPRESENTATIONS AND WARRANTIES EXCEEDS $1,750,000 (AFTER
WHICH POINT THE BUYER WILL ONLY BE OBLIGATED TO INDEMNIFY THE SELLER AND ITS
AFFILIATES FOR THE AMOUNT OF SUCH SELLER LOSSES IN
63
excess of the $1,000,000).
Notwithstanding the foregoing, the aggregate
liability of the Buyer to indemnify the Seller and its affiliates for all claims
made under Section 9.2(a)(i) shall not in any event exceed $30,000,000.
No
provision of this Section 9.2(b) shall apply to any breach or alleged breach by
the Buyer of any of its covenants contained in this Agreement.
(C)
FOLLOWING THE CLOSING, THE INDEMNITY
PROVIDED IN THIS SECTION 9.2 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE
SELLER AND ITS AFFILIATES AGAINST THE BUYER AND ITS AFFILIATES AT LAW OR EQUITY
FOR ANY SELLER LOSSES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT FOR ANY CLAIMS BASED ON OR ARISING OUT
OF OR INCURRED IN CONNECTION WITH ANY FRAUD; PROVIDED, THAT THE FOREGOING SHALL
NOT LIMIT THE RIGHT OF THE SELLER AND ITS AFFILIATES TO OBTAIN INJUNCTIVE