THE LETTER SET
FORTH AS SCHEDULE 9.3(A)(III) TO THE EXTENT AND SUBJECT TO THE LIMITATIONS AND
PROCEDURES SET FORTH THEREIN; OR
(IV)
ANY TAXES FOR ANY STRADDLE PERIOD OF THE
COMPANY OR ITS SUBSIDIARIES NOT PAYABLE OR INDEMNIFIABLE BY LEUCADIA OR SELLER
PURSUANT TO SECTION 7.13 AND SECTION 9.2(A).
55
(B)
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY:
(I)
THE BUYER AND LEVEL 3 SHALL NOT HAVE ANY
LIABILITY UNDER SECTION 9.3(A)(I) (OTHER THAN WITH RESPECT TO SECTION 6.6)
UNLESS THE AGGREGATE OF ALL LOSSES RELATING THERETO FOR WHICH THE BUYER AND
LEVEL 3 WOULD, BUT FOR THIS SECTION 9.3(B)(I), BE LIABLE EXCEEDS ON A CUMULATIVE
BASIS AN AMOUNT EQUAL TO $10 MILLION AND THEN ONLY TO THE EXTENT OF ANY SUCH
EXCESS;
(II)
THE MAXIMUM AMOUNT FOR WHICH THE BUYER AND
THE SELLER SHALL BE LIABLE WITH RESPECT TO MATTERS COVERED BY
SECTION 9.3(A)(I) (OTHER THAN WITH RESPECT TO SECTION 6.6) SHALL NOT EXCEED IN
THE AGGREGATE $100 MILLION;
(III)
IN ALL CASES DETERMINING WHETHER THERE HAS
BEEN A BREACH OF A REPRESENTATION OR WARRANTY BY THE BUYER OR LEVEL 3 FOR
PURPOSES OF THIS SECTION 9.3, OR IN DETERMINING THE AMOUNT OF ANY LOSSES WITH
RESPECT TO SUCH BREACH, SUCH REPRESENTATIONS AND WARRANTIES SHALL BE READ
WITHOUT REGARD TO ANY MATERIALITY QUALIFIER CONTAINED THEREIN;
(IV)
THE PARTIES AGREE THAT ANY AMOUNT PAYABLE TO
THE SELLER OR LEUCADIA MADE PURSUANT TO THIS SECTION 9.3 SHALL BE TREATED FOR
TAX PURPOSES AS AN ADJUSTMENT TO THE PURCHASE PRICE, UNLESS OTHERWISE REQUIRED
BY APPLICABLE LAW;
(V)
THE PARTIES AGREE THAT ANY AMOUNT PAYABLE TO
THE SELLER OR LEUCADIA MADE PURSUANT TO THIS SECTION 9.3 SHALL BE CALCULATED NET
OF ANY TAX BENEFITS REALIZED IN CASH (OR AS AN OFFSET TO AN OBLIGATION PAYABLE
CURRENTLY) WITHIN A PERIOD OF FIVE YEARS FOLLOWING THE CLOSING DATE BY THE
INDEMNITEE OR ITS AFFILIATES AS A RESULT OF THE LOSS.
IN THE CASE OF ANY TAX
BENEFITS REALIZED AFTER THE INDEMNITY AMOUNT HAS BEEN PAID BY THE BUYER (BUT
WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE CLOSING DATE), THE SELLER PROMPTLY
SHALL MAKE A FURTHER PAYMENT TO THE BUYER WHEN SUCH BENEFITS ARE RECEIVED.
TAX
BENEFITS SHALL BE CONSIDERED REALIZED WHEN THERE IS A REDUCTION IN THE SELLER'S
LIABILITY FOR TAXES, DETERMINED BY COMPARING THE AMOUNT OF SUCH LIABILITY
WITHOUT THE TAX BENEFITS TO THE AMOUNT OF SUCH LIABILITY WHEN SUCH TAX BENEFITS
ARE TAKEN INTO ACCOUNT; AND
(VI)
IF THE BUYER EXERCISES THE BENEFIT PLAN
SUBSTITUTION RIGHT, THE BUYER AND LEVEL 3 SHALL INDEMNIFY LEUCADIA AND THE
SELLER FOR ANY LOSSES ARISING OUT OF OR RESULTING FROM, OR SHALL PAY OR BECOME
OBLIGATED TO PAY ANY SUM ON ACCOUNT OF, THE RETIREMENT PLAN AND THE DEFERRED
COMPENSATION PLAN.
SECTION 9.4.
PROCEDURES FOR INDEMNIFICATION.
OTHER THAN AS SET FORTH IN
SECTION 7.13(E) AND (F), IF A PARTY ENTITLED TO INDEMNIFICATION UNDER THIS
SECTION 9 (AN "INDEMNITEE") ASSERTS THAT A PARTY OBLIGATED TO INDEMNIFY IT UNDER
THIS SECTION 9 (AN "INDEMNITOR") HAS BECOME OBLIGATED TO SUCH INDEMNITEE