of limitations (as the
same may be extended).
The applicable time periods specified in the preceding
provisions of this Section 7.1 are each referred to as an "Indemnity Period."
This Section 7.1 shall not limit any covenant or agreement of the parties that
contemplates performance after the Closing.
SECTION 7.2
SELLER GROUP'S AGREEMENT TO INDEMNIFY
(A)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, FROM AND AFTER THE
CLOSING, SELLER GROUP SHALL INDEMNIFY AND HOLD HARMLESS BUYER AND ITS RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, CONTROLLING PERSONS, AGENTS AND
REPRESENTATIVES AND THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, "BUYER
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) ASSERTED AGAINST
OR INCURRED BY ANY BUYER INDEMNITEE AS A RESULT OF OR ARISING OUT OF (I) A
BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE III, (II) EXCLUDED
LIABILITIES, OR (III) A BREACH OF ANY AGREEMENT OR COVENANT OF SELLER IN THIS
AGREEMENT (COLLECTIVELY, "BUYER DAMAGES").
NOTWITHSTANDING ANYTHING TO THE
CONTRARY, IF A REPRESENTATION OR WARRANTY IS BREACHED IN ACCORDANCE WITH ITS
TERMS (INCLUDING ANY MATERIALITY STANDARD CONTAINED THEREIN), BUYER DAMAGES FOR
SUCH A BREACH SHALL BE DETERMINED WITHOUT GIVING EFFECT TO ANY MATERIALITY
STANDARD CONTAINED THEREIN.
(B)
SELLER GROUP'S OBLIGATIONS TO INDEMNIFY BUYER INDEMNITEES PURSUANT TO
SECTION 7.2(A) HEREOF WITH RESPECT TO A BREACH OF A REPRESENTATION OR WARRANTY
CONTAINED IN THIS AGREEMENT ARE SUBJECT TO THE FOLLOWING LIMITATIONS:
(I)
THE AMOUNT OF ANY BUYER DAMAGES SHALL BE REDUCED BY ANY AMOUNT
ACTUALLY RECEIVED BY A BUYER INDEMNITEE WITH RESPECT THERETO UNDER ANY INSURANCE
COVERAGE (OTHER THAN SELF INSURANCE) OR FROM ANY OTHER PARTY ALLEGED TO BE
RESPONSIBLE THEREFOR.
BUYER 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 BUYER INDEMNITEE RECEIVES
AN AMOUNT UNDER INSURANCE COVERAGE OR FROM SUCH OTHER PARTY WITH RESPECT TO
BUYER DAMAGES AT ANY TIME SUBSEQUENT TO ANY INDEMNIFICATION PROVIDED BY SELLER
GROUP PURSUANT TO THIS SECTION 7.2, THEN SUCH BUYER INDEMNITEE SHALL PROMPTLY
REIMBURSE SELLER, AS THE CASE MAY BE, FOR ANY PAYMENT MADE OR EXPENSE INCURRED
BY SELLER IN CONNECTION WITH PROVIDING SUCH INDEMNIFICATION UP TO SUCH AMOUNT
RECEIVED BY BUYER INDEMNITEE, BUT NET OF ANY EXPENSES INCURRED BY SUCH BUYER
INDEMNITEE IN COLLECTING SUCH AMOUNT;
(II)
SELLER GROUP SHALL BE OBLIGATED TO INDEMNIFY BUYER INDEMNITEES ONLY
FOR THOSE CLAIMS WITH RESPECT TO A BREACH OF A REPRESENTATION OR WARRANTY GIVING
RISE TO BUYER DAMAGES AS TO WHICH BUYER INDEMNITEES HAVE GIVEN SELLER WRITTEN
NOTICE THEREOF PRIOR TO THE END OF ANY APPLICABLE INDEMNITY PERIOD; AND
(III)
IN THE ABSENCE OF FRAUD OR WILLFUL MISCONDUCT, AND EXCEPT WITH
RESPECT TO EXCLUDED LIABILITIES, SELLER GROUP SHALL NOT BE OBLIGATED TO
INDEMNIFY BUYER INDEMNITEES WITH RESPECT TO CLAIMS FOR INDEMNIFICATION PURSUANT
TO THIS SECTION 7.2 WITH RESPECT TO A BREACH OF A REPRESENTATION OR WARRANTY
UNTIL SUCH CLAIMS EXCEED $1,000,000