after the expiration of the applicable statute 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