PERSON ENTITLED TO INDEMNIFICATION UNDER
THIS AGREEMENT, EITHER A SELLER INDEMNITEE OR A BUYER INDEMNITEE AS THE CASE MAY
BE;
(C)
"INDEMNITOR" MEANS ANY PERSON OR ENTITY REQUIRED TO PROVIDE
INDEMNIFICATION UNDER THIS AGREEMENT; AND
(D)
"LOSSES" MEANS ANY LOSSES, LIABILITIES, DAMAGES, DEFICIENCIES,
COSTS AND EXPENSES (INCLUDING REASONABLE OUT-OF-POCKET ATTORNEYS' AND
CONSULTANTS' FEES AND EXPENSES AND INCLUDING THE REASONABLE COSTS AND EXPENSES
OF INVESTIGATING AND DEFENDING ANY INDEMNIFICATION CLAIM), EXCLUDING ANY SUCH
LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES TO THE EXTENT THAT THE
UNDERLYING LIABILITY OR OBLIGATION IS THE RESULT OF ANY ACTION TAKEN OR OMITTED
TO BE TAKEN BY ANY INDEMNITEE.
32
7.6
Limitation on Claims for Indemnifiable Losses.
Notwithstanding
anything to the contrary contained herein:
(A)
SELLER SHALL NOT BE LIABLE FOR ANY LOSSES WITH RESPECT TO ANY
CLAIMS BY A BUYER INDEMNITEE UNDER SECTION 7.3(A) UNLESS AND UNTIL THE TOTAL OF
ALL SUCH CLAIMS FOR INDEMNITY OR DAMAGES WITH RESPECT THERETO EXCEEDS 0.5% OF
THE PURCHASE PRICE (THE "SELLER THRESHOLD"), AND THEN SELLER SHALL BE LIABLE FOR
ALL SUCH CLAIMS IN EXCESS OF THE SELLER THRESHOLD.
THE AGGREGATE LIABILITY OF
SELLER FOR INDEMNIFIABLE LOSSES WITH RESPECT TO ANY CLAIMS UNDER SECTION 7.3(A)
HEREOF SHALL NOT EXCEED THE AMOUNT WHICH IS 10% OF THE PURCHASE PRICE (THE
"SELLER INDEMNIFICATION LIMIT").
(B)
NO INDEMNITOR SHALL BE LIABLE TO OR OBLIGATED TO INDEMNIFY ANY
INDEMNITEE HEREUNDER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
MULTIPLE, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES
ARISING FROM LOSS OR INTERRUPTION OF BUSINESS, REVENUES, PROFITS, BUSINESS
OPPORTUNITIES OR GOODWILL, OR ANY COST OR EXPENSE RELATED THERETO, EXCEPT TO THE
EXTENT SUCH DAMAGES ARE PAYABLE TO OR HAVE BEEN RECOVERED BY A THIRD PERSON AND
ARE THE SUBJECT OF A THIRD PARTY CLAIM FOR WHICH INDEMNIFICATION IS AVAILABLE
UNDER THE EXPRESS TERMS OF THIS ARTICLE VII.
(C)
SELLER AND BUYER SHALL COOPERATE WITH EACH OTHER WITH RESPECT TO
RESOLVING ANY CLAIM OR LIABILITY WITH RESPECT TO WHICH ONE PARTY IS OBLIGATED TO
INDEMNIFY THE OTHER PARTY (OR ITS AFFILIATES) HEREUNDER, INCLUDING BY MAKING
COMMERCIALLY REASONABLE EFFORTS TO MITIGATE THE LOSSES AND RESOLVE ANY SUCH
CLAIM OR LIABILITY PRIOR TO INITIATING LITIGATION.
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO
PARTY SHALL, AFTER THE DATE ON WHICH THE FINAL WORKING CAPITAL IS DETERMINED
PURSUANT TO SECTION 2.3, MAKE ANY CLAIM FOR INDEMNIFICATION WITH RESPECT TO THE
BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER IF THE FACTS UNDERLYING SUCH
CLAIM WERE FULLY AND COMPLETELY ACCOUNTED FOR IN THE FINAL WORKING CAPITAL.
7.7
Defense of Claims.
(A)
THIRD PARTY CLAIMS.
SUBJECT TO SECTION 7.7(B), IF ANY INDEMNITEE
RECEIVES NOTICE OF THE ASSERTION OF ANY CLAIM OR OF THE COMMENCEMENT OF ANY
ACTION OR PROCEEDING BY ANY ENTITY THAT IS NOT EITHER A BUYER INDEMNITEE OR A
SELLER INDEMNITEE (EACH, A "THIRD PARTY CLAIM") AGAINST SUCH INDEMNITEE, WITH
RESPECT TO WHICH AN INDEMNITOR IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER
THIS AGREEMENT, THE INDEMNITEE WILL GIVE SUCH INDEMNITOR PROMPT WRITTEN NOTICE
THEREOF, BUT IN ANY EVENT