OR WARRANTY UNTIL SUCH CLAIMS EXCEED $1,000,000 IN THE AGGREGATE,
AT WHICH POINT SELLER GROUP SHALL INDEMNIFY BUYER INDEMNITEES FOR ALL CLAIMS IN
EXCESS OF SUCH AMOUNT.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE
OBLIGATION OF THE SELLER TO INDEMNIFY THE BUYER INDEMNITEES HEREUNDER WITH
RESPECT TO A BREACH A REPRESENTATION OR WARRANTY EXCEED $16.0 MILLION (THE
"SELLER INDEMNITY CAP") (LESS THE AMOUNT OF ANY PAYMENTS MADE PURSUANT TO THE
ADDITIONAL AGREEMENT BETWEEN BUYER AND SELLER DATED THE DATE HEREOF (THE
"ADDITIONAL AGREEMENT"), OTHER THAN IN CONNECTION WITH (A) FRAUD OR WILLFUL
MISCONDUCT, (B) EXCLUDED LIABILITIES, OR (C) THE BREACH OF THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN SECTIONS 3.13 OR 3.15, IN EACH CASE FOR WHICH SELLER
SHALL BE
41
OBLIGATED TO INDEMNIFY BUYER INDEMNITEES FOR THE FULL EXTENT OF BUYER DAMAGES.
PAYMENTS MADE BY SELLER GROUP IN RESPECT OF EXCLUDED LIABILITIES SHALL NOT BE
COUNTED AGAINST THE SELLER INDEMNITY CAP.
SECTION 7.3
BUYER'S AGREEMENT TO INDEMNIFY
(A)
SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH HEREIN, FROM AND AFTER THE CLOSING, BUYER SHALL INDEMNIFY AND HOLD
HARMLESS SELLER AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, CONTROLLING
PERSONS, AGENTS AND REPRESENTATIVES AND THEIR SUCCESSORS AND ASSIGNS
(COLLECTIVELY, THE "SELLER INDEMNITEES") FROM AND AGAINST ALL LIABILITY,
DEMANDS, CLAIMS, ACTIONS OR CAUSES OF ACTION, ASSESSMENTS, LOSSES, DAMAGES,
COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES
REASONABLY INCURRED) (COLLECTIVELY, "SELLER DAMAGES") ASSERTED AGAINST OR
INCURRED BY ANY SELLER INDEMNITEE AS A RESULT OF OR ARISING OUT OF (I) THE
ASSUMED LIABILITIES, (II) A BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED
IN ARTICLE IV OF THIS AGREEMENT OR (III) A BREACH OF ANY AGREEMENT OR COVENANT
OF BUYER IN THIS AGREEMENT OR OTHERWISE.
(B)
BUYER'S OBLIGATIONS TO INDEMNIFY SELLER
INDEMNITEES PURSUANT TO CLAUSE (II) OF SECTION 7.3(A) HEREOF WITH RESPECT TO A
BREACH OF A REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT ARE SUBJECT
TO THE FOLLOWING LIMITATIONS:
(I)
IN THE ABSENCE OF FRAUD OR WILLFUL
MISCONDUCT, NO INDEMNIFICATION PURSUANT TO THIS SECTION 7.3 SHALL BE MADE BY
BUYER WITH RESPECT TO ANY CLAIM FOR INDEMNIFICATION WITH RESPECT TO A BREACH OF
A REPRESENTATION OR WARRANTY UNTIL THE AGGREGATE AMOUNT OF SELLER DAMAGES UNDER
SUCH CLAIMS EXCEEDS AN AMOUNT EQUAL TO $1,000,000 IN THE AGGREGATE AND, IN SUCH
EVENT, INDEMNIFICATION SHALL BE MADE BY BUYER FOR ALL CLAIMS IN EXCESS OF SUCH
AMOUNT, UP TO A MAXIMUM OF $16.0 MILLION;
(II)
THE AMOUNT OF ANY SELLER DAMAGES SHALL BE
REDUCED BY ANY AMOUNT ACTUALLY RECEIVED BY A SELLER INDEMNITEE WITH RESPECT
THERETO UNDER ANY INSURANCE COVERAGE (OTHER THAN SELF INSURANCE) OR FROM ANY
OTHER PARTY ALLEGED TO BE RESPONSIBLE THEREFOR.
SELLER INDEMNITEES SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO COLLECT ANY AMOUNTS AVAILABLE UNDER SUCH
INSURANCE COVERAGE AND FROM SUCH OTHER PARTY ALLEGED TO HAVE RESPONSIBILITY.
IF
A SELLER INDEMNITEE RECEIVES AN AMOUNT UNDER INSURANCE COVERAGE OR FROM SUCH
OTHER PARTY WITH RESPECT TO SELLER DAMAGES AT ANY TIME SUBSEQUENT TO ANY
INDEMNIFICATION PROVIDED BY BUYER PURSUANT TO THIS SECTION 7.3, THEN