THE APPLICABLE
SURVIVAL PERIOD SET FORTH ABOVE FOR EACH SUCH COVENANT, AGREEMENT,
REPRESENTATION OR WARRANTY IS REFERRED TO HEREIN AS THE "SURVIVAL PERIOD".
(B)
NO CLAIM FOR DAMAGES OR OTHER RELIEF OF ANY KIND (INCLUDING A CLAIM
UNDER SECTION 9.2(A) OR SECTION 9.3(A)) ARISING OUT OF OR RELATING TO THE BREACH
OF ANY COVENANT, AGREEMENT, REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT MAY
BE BROUGHT UNLESS A WRITTEN NOTICE DESCRIBING THE NATURE OF THE CLAIM, THE
THEORY OF LIABILITY OR THE NATURE OF THE RELIEF SOUGHT AND THE MATERIAL FACTUAL
ASSERTIONS UPON WHICH THE CLAIM IS BASED IS GIVEN TO THE OTHER PARTY, BEFORE THE
TERMINATION OF THE APPLICABLE SURVIVAL PERIOD.
NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY, ANY COVENANT, AGREEMENT, REPRESENTATION OR WARRANTY THAT WOULD
OTHERWISE TERMINATE SHALL CONTINUE TO SURVIVE FOR ANY CLAIM FOR DAMAGES WITH
RESPECT TO WHICH SUCH NOTICE IS GIVEN PURSUANT TO THIS AGREEMENT PRIOR TO THE
END OF THE SURVIVAL PERIOD, UNTIL THE MATTER IS FINALLY RESOLVED AND ANY RELATED
DAMAGES ARE PAID.
Section 9.2
Indemnification by Seller.
(A)
EXCEPT AS OTHERWISE PROVIDED IN ARTICLE X BELOW WITH RESPECT TO TAX
MATTERS AND SUBJECT TO THE FURTHER PROVISIONS HEREOF, SELLER SHALL PAY, DEFEND,
INDEMNIFY AND HOLD BUYER, ITS AFFILIATES AND RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS, AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS (GENERAL AND
LIMITED), OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS AND REPRESENTATIVES,
AND EACH OF THEIR HEIRS, EXECUTORS, SUCCESSORS AND ASSIGNS ("BUYER INDEMNIFIED
PARTIES"), HARMLESS FROM AND AGAINST AND IN RESPECT OF:
(I)
SUBJECT TO SECTION 11.16, ANY AND ALL ACTUAL DAMAGES RELATING TO
ANY DEMANDS, CLAIMS, LAWSUITS, CAUSES OF ACTION, LOSSES, INVESTIGATIONS AND
OTHER PROCEEDINGS (WHETHER OR NOT BEFORE A GOVERNMENTAL ENTITY AND WHETHER OR
NOT BROUGHT BY A THIRD PARTY), INCLUDING REASONABLE ATTORNEY'S FEES, COURT COSTS
AND OTHER DOCUMENTED OUT-OF-POCKET EXPENSES INCURRED INVESTIGATING OR PREPARING
FOR THE FOREGOING (COLLECTIVELY, "DAMAGES"), WHICH ARISE OUT OF ANY BREACH OF
ANY OF THE COVENANTS OR OTHER AGREEMENTS OF SELLER IN THIS AGREEMENT;
41
(II)
DAMAGES WHICH ARISE OUT OF ANY BREACH OF THE REPRESENTATIONS AND
WARRANTIES OF SELLER IN THIS AGREEMENT;
(III)
DAMAGES ARISING OUT OF ANY MATTER SET FORTH IN SCHEDULE 4.8; AND
(IV)
THE AMOUNT OF ANY INDEBTEDNESS OF THE COMPANIES AS OF THE CLOSING
DATE THAT WAS NOT INCLUDED IN THE CALCULATION OF THE COMPANY INDEBTEDNESS PAYOFF
AMOUNT, AND ANY AND ALL REASONABLE AND DOCUMENTED OUT-OF-POCKET COSTS AND
EXPENSES INCURRED BY BUYER OR THE COMPANIES IN CONNECTION WITH EXTINGUISHING ANY
SUCH INDEBTEDNESS.
(B)
THE FOREGOING OBLIGATION TO INDEMNIFY BUYER INDEMNIFIED PARTIES SET
FORTH IN SECTION 9.2(A)(I) AND (II) SHALL BE SUBJECT TO EACH OF THE FOLLOWING
LIMITATIONS:
(I)
SELLER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.2(A)(I) AND
(II) SHALL TERMINATE UPON EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD.
(II)
NO REIMBURSEMENT OR PAYMENT FOR ANY DAMAGES ASSERTED AGAINST
SELLER UNDER SECTION 9.2(A)(II) ABOVE SHALL BE REQUIRED UNLESS AND UNTIL THE
CUMULATIVE AGGREGATE AMOUNT OF SUCH DAMAGES EQUALS OR EXCEEDS SIX MILLION
DOLLARS ($6,000,000) (THE "SELLER'S THRESHOLD"), AND THEN ONLY TO THE EXTENT
THAT THE CUMULATIVE AGGREGATE AMOUNT