AND THE LAST SENTENCE OF SECTION 3.19,
WHICH SHALL BE SUBJECT TO AN AGGREGATE LIMITATION EQUAL TO THE PURCHASE PRICE.
NO PROVISION OF THIS SECTION 9.1(B) SHALL APPLY TO ANY BREACH OR ALLEGED BREACH
BY THE SELLER OF ANY OF ITS COVENANTS CONTAINED IN THIS AGREEMENT.
(D)
FOLLOWING THE CLOSING, THE INDEMNITIES
PROVIDED IN THIS SECTION 9.1 AND IN SECTION 6.6(A)(II) SHALL BE THE SOLE AND
EXCLUSIVE REMEDIES OF THE BUYER AND ITS AFFILIATES AGAINST THE SELLER AND ITS
AFFILIATES AT LAW OR EQUITY FOR ANY BUYER LOSSES ARISING OUT OF OR RESULTING
FROM THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT
LIMITATION THOSE RELATING TO ENVIRONMENTAL LAWS, EXCEPT FOR ANY CLAIMS BASED ON
OR ARISING OUT OF OR INCURRED IN CONNECTION WITH ANY FRAUD; PROVIDED, THAT THE
FOREGOING SHALL NOT LIMIT THE RIGHT OF THE BUYER AND ITS AFFILIATES TO OBTAIN
INJUNCTIVE RELIEF TO ENFORCE ANY OF THE PROVISIONS OF THIS AGREEMENT, WHETHER
PURSUANT TO SECTION 5.5 OR OTHERWISE.
62
9.2
Indemnification by the Buyer.
(A)
SUBJECT TO ANY APPLICABLE LIMITS SET FORTH
IN THIS SECTION 9.2, FROM AND AFTER CLOSING THE BUYER SHALL DEFEND, INDEMNIFY
AND HOLD THE SELLER AND ITS AFFILIATES HARMLESS FROM AND AGAINST AND IN RESPECT
OF ANY AND ALL ACTUAL LOSSES, LIABILITIES, DAMAGES, FINES, JUDGMENTS,
SETTLEMENTS AND EXPENSES (INCLUDING REASONABLE OUT-OF-POCKET ATTORNEYS',
ACCOUNTANTS', INVESTIGATORS' AND EXPERTS' FEES AND EXPENSES) AND WHETHER OR NOT
AS A RESULT OF A THIRD PARTY CLAIM, BUT EXCLUDING CONSEQUENTIAL, PUNITIVE,
SPECIAL OR INDIRECT DAMAGES (OTHER THAN ANY SUCH DAMAGES GRANTED OR AWARDED TO A
THIRD PARTY IN AN ACTION OR OTHER PROCEEDING AGAINST ANY OF SELLER AND ITS
AFFILIATES) (HEREINAFTER "SELLER LOSSES"; AND TOGETHER WITH BUYER LOSSES,
"LOSSES") ARISING OUT OF OR INCURRED IN CONNECTION WITH (I) SUBJECT TO SECTION
9.5(B), ANY BREACH OF ANY OF THE BUYER'S REPRESENTATIONS AND WARRANTIES OR
COVENANTS CONTAINED IN THIS AGREEMENT, (II) EXCEPT FOR LIABILITIES AND
OBLIGATIONS FOR WHICH THE SELLER OR ITS AFFILIATES ARE RESPONSIBLE OR WHICH ARE
EXPRESSLY STATED TO BE THE RESPONSIBILITY OF THE SELLER UNDER THIS AGREEMENT
(WHETHER BY REASON OF INDEMNIFICATION OR OTHERWISE), THE POSSESSION, USE,
OPERATION OR MANAGEMENT OF THE SOLD COMPANIES, THE VENTURE ENTITIES AND THE
SUBSIDIARIES (PROVIDED, THAT THE FOREGOING SHALL NOT LIMIT ANY INDEMNIFICATION
HEREIN PROVIDED OR ANY LIABILITY BASED THEREON) OR (III) ANY GUARANTEE WHICH
REMAINS OUTSTANDING FOLLOWING THE CLOSING UNTIL SUCH GUARANTEE IS REPLACED OR
RELEASED (EXCEPT TO THE EXTENT DUE TO ANY ACTION OR INACTION ON THE PART OF
SELLER OR ITS AFFILIATES THAT IS PROHIBITED BY THIS AGREEMENT).
THE SELLER
SHALL GIVE THE BUYER PROMPT WRITTEN NOTICE OF ANY THIRD PARTY CLAIM OR OTHER
CIRCUMSTANCE WHICH MAY GIVE RISE TO ANY INDEMNITY OBLIGATION UNDER THIS SECTION
9.2, TOGETHER WITH THE ESTIMATED AMOUNT OF SUCH CLAIM OR LIABILITY RELATING TO
SUCH CIRCUMSTANCE, AND THE BUYER SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE OF
ANY SUCH CLAIM OR ADDRESS SUCH CIRCUMSTANCE THROUGH COUNSEL OR CONSULTANTS OF
ITS OWN CHOOSING BY SO NOTIFYING THE SELLER WITHIN SIXTY (60) DAYS OF