be net of any Tax
benefits theretofore realized by Purchaser and its Affiliates (including the
Companies, after the Closing) in respect of Damages to be indemnified hereunder,
and as and when Purchaser or any of its Affiliates realizes any Tax benefits in
respect of Damages theretofore indemnified hereunder, Purchaser shall pay Parent
an amount equal to the amount of such Tax benefit so realized.
(F)
EACH SELLER-INDEMNIFIED PERSON SHALL BE RESPONSIBLE FOR TAKING OR
CAUSING TO BE TAKEN REASONABLE STEPS TO MITIGATE ITS DAMAGES UPON AND AFTER
BECOMING AWARE OF ANY EVENT THAT COULD REASONABLY BE EXPECTED TO GIVE RISE TO
DAMAGES THAT MAY BE INDEMNIFIABLE UNDER THIS ARTICLE VIII.
SECTION 8.2.
Indemnification of
Sellers.
(A)
PURCHASER AGREES THAT, AFTER THE CLOSING, SUBJECT TO THE
LIMITATIONS SET FORTH IN THIS ARTICLE VIII, PURCHASER SHALL INDEMNIFY, DEFEND
AND HOLD HARMLESS SELLERS, THEIR OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES,
AND RESPECTIVE SUCCESSORS AND ASSIGNS, AND HERMAN STONE AND ANY AFFILIATE OF
HERMAN STONE WITH RESPECT TO CLAUSE (III) OF THIS SECTION 8.2(A) (THE
"PURCHASER-INDEMNIFIED PERSONS"), FROM AND AGAINST ANY AND ALL DAMAGES ARISING
OUT OF OR RESULTING FROM (I) ANY BREACH OF ANY REPRESENTATION, WARRANTY OR
COVENANT MADE BY PURCHASER IN THIS AGREEMENT OR IN ANY OF THE CERTIFICATES OR
OTHER INSTRUMENTS OR DOCUMENTS FURNISHED BY PURCHASER PURSUANT TO
SECTION 7.3(E)(I), (II) THE ABSENCE OF ANY LANDLORD APPROVAL (WHETHER OR NOT
SUCH LANDLORD APPROVAL IS DEEMED TO HAVE BEEN OBTAINED FOR PURPOSES OF
SECTION 7.2(D)), OR (III) ANY GUARANTY ENTERED INTO PRIOR TO THE DATE OF THIS
AGREEMENT, OR ANY LEASE ENTERED INTO PRIOR TO THE DATE OF THIS AGREEMENT AS A
CO-TENANT WITH A COMPANY, BY ANY SELLER, HERMAN STONE OR ANY AFFILIATE OF HERMAN
STONE, TO THE EXTENT RELATING TO ANY LIABILITY OR OTHER OBLIGATION OF A COMPANY
ARISING AFTER THE CLOSING OR REFLECTED IN THE CLOSING WORKING CAPITAL AS FINALLY
DETERMINED PURSUANT TO THIS AGREEMENT (THE "PURCHASER INDEMNIFIED ITEMS").
ANY
CLAIM FOR INDEMNIFICATION MADE BY A PURCHASER-INDEMNIFIED PERSON UNDER CLAUSE
(I) OF THIS SECTION 8.1 IN RESPECT OF THE PURCHASER INDEMNIFIED ITEMS MUST BE
ASSERTED IN A WRITING DELIVERED TO PURCHASER BY NO LATER THAN THE SURVIVAL
DATE.
THE AGGREGATE LIABILITY OF PURCHASER ON ACCOUNT OF ALL PURCHASER
INDEMNIFIED ITEMS PURSUANT TO CLAUSE (I) OF THIS SECTION 8.2(A) SHALL BE LIMITED
TO THE AMOUNT OF THE LIMITED INDEMNITY CAP, AND CLAIMS FOR DAMAGES IN RESPECT OF
PURCHASER INDEMNIFIED ITEMS SHALL BE LIMITED TO SUCH AMOUNT, WHETHER THE
PURCHASER-INDEMNIFIED PERSON IN QUESTION IS A SELLER OR ANOTHER
PURCHASER-INDEMNIFIED PERSON.
IN ADDITION, THE INDEMNIFICATION PROVIDED FOR IN
CLAUSE (I) OF THIS SECTION 8.2(A) IN RESPECT OF THE PURCHASER INDEMNIFIED ITEMS
SHALL NOT APPLY UNLESS
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and until the aggregate Damages determined to be due for which one or more
Purchaser-Indemnified Persons seeks or has sought indemnification hereunder in
respect of Purchaser Indemnified Items exceeds the Deductible, in which event
the Purchaser-Indemnified Persons shall, subject to the other limitations
herein, be indemnified for such Damages to the extent in excess of the
Deductible.