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 SUCH SELLER INDEMNITEE
SHALL PROMPTLY REIMBURSE BUYER