TO DEMANDS BY BUYER FOR INDEMNIFICATION FOR CLAIMS AND
LOSSES RELATING TO BREACHES OF REPRESENTATIONS OR WARRANTIES BY THE SELLER:
(A)
THE SELLER SHALL INDEMNIFY BUYER ONLY TO THE EXTENT THAT THE AGGREGATE OF
ALL CLAIMS ACTUALLY SUFFERED EXCEEDS SIXTY THOUSAND DOLLARS ($60,000.00), AT
WHICH POINT RECOVERY SHALL BE FOR ALL DAMAGES INCURRED UP TO THE FULL AMOUNT.
(B)
THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS SHALL BE THE TOTAL PURCHASE
PRICE.
19
7.4.2
NOTWITHSTANDING THE OTHER PROVISIONS OF SECTION 7 HEREOF, THE BUYER
AGREES THAT WITH RESPECT TO DEMANDS BY BUYER FOR INDEMNIFICATION FOR ANY CLAIMS
HEREUNDER AGAINST THE SELLER:
(A)
NO DEMAND FOR INDEMNIFICATION UNDER SECTION 7 SHALL BE MADE WITH RESPECT
TO ANY CLAIM TO THE EXTENT THE CLAIM ARISES WHOLLY AS A RESULT OF THE PASSING OR
AMENDING AFTER THE CLOSING DATE OF A STATUTE, RULE OR OTHER GOVERNMENT
REGULATION WITH RETROACTIVE EFFECT.
(B)
THE AMOUNT OF ANY CLAIM SUBJECT TO INDEMNIFICATION SHALL BE DETERMINED
AFTER TAKING INTO ACCOUNT THE PRESENT VALUE OF ANY TAX BENEFITS (NET OF TAX
DETRIMENTS) ACCRUING TO BUYER (OR ANY MEMBER OF ITS CONSOLIDATED GROUP) AS A
RESULT OF SUCH CLAIM, BUT ONLY TO THE EXTENT THAT THE PRESENT VALUE OF THE TAX
BENEFITS CAN BE ESTIMATED BASED UPON ASSUMPTIONS REASONABLE UNDER THE
CIRCUMSTANCES.
7.5
ESCROW AGREEMENT.
THE HOLDBACK SHALL BE MAINTAINED IN AN INTEREST
BEARING ESCROW ACCOUNT ("ESCROW ACCOUNT") ESTABLISHED PURSUANT TO THE ESCROW
AGREEMENT UNTIL THE EXPIRATION OF THE ESCROW PERIOD FOR THE PURPOSE OF
SATISFYING CLAIMS BY BUYER INDEMNIFIED PARTIES FOR INDEMNIFICATION UNDER SECTION
7.1(A).
UPON EXPIRATION OF THE ESCROW PERIOD, AND SUBJECT TO THE TERMS OF THIS
SECTION 7.5 AND THE ESCROW AGREEMENT, THE ESCROW AGENT SHALL DELIVER OR CAUSE TO
BE DELIVERED TO THE PARTNERS THE BALANCE, IF ANY, REMAINING IN THE ESCROW
ACCOUNT.
IF, UPON EXPIRATION OF THE ESCROW PERIOD, ANY BUYER INDEMNIFIED PARTY
SHALL HAVE ASSERTED A CLAIM FOR INDEMNITY PURSUANT TO SECTION 7.1(A) AND SUCH
CLAIM IS PENDING OR UNRESOLVED AT THE TIME OF SUCH EXPIRATION, THE ESCROW AGENT
SHALL RETAIN IN ESCROW AN AMOUNT OF CASH EQUAL TO THE VALUE OF THE ASSERTED
CLAIM UNTIL SUCH MATTER IS RESOLVED.
7.6
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
OBLIGATION.
THE INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS ARTICLE 7
RELATING TO THE REPRESENTATIONS AND WARRANTIES OF THE SELLER CONTAINED IN
ARTICLE 3 AND OF THE BUYER IN ARTICLE 4 ABOVE SHALL SURVIVE THE CLOSING
HEREUNDER AND SHALL CONTINUE IN FULL FORCE AND EFFECT AFTER SUCH CLOSING FOR A
PERIOD OF 12 MONTHS AFTER THE CLOSING DATE; PROVIDED, HOWEVER, THAT THE
INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS ARTICLE 7 RELATING TO THE
REPRESENTATIONS AND WARRANTIES IN:
(A)
SECTIONS 3.3, 3.13 AND 3.15 SHALL CONTINUE TO SURVIVE AFTER THE
CLOSING DATE UNTIL THE EXPIRATION OF ALL APPLICABLE STATUTES OF LIMITATIONS, AND
(B)
SECTIONS 3.14 AND 3.31 SHALL CONTINUE TO SURVIVE AFTER THE CLOSING
DATE UNTIL THE DATE WHICH IS 60 DAYS AFTER THE DATE ON WHICH THE LAST APPLICABLE
LIMITATION PERIOD (I) WITH RESPECT TO SECTION 3.14, UNDER