COMPANY OF THE COVENANT CONTAINED IN SECTION 9.4.
(B)
PURCHASER'S OBLIGATION TO INDEMNIFY SELLERS' INDEMNITEES PURSUANT TO
SECTION 12.3(A) HEREOF OR OTHERWISE, BUT NOT PURSUANT TO SECTION 12.9, IS
SUBJECT TO THE FOLLOWING LIMITATIONS:
(I)
NO INDEMNIFICATION SHALL BE MADE BY PURCHASER PURSUANT TO SECTION
12.3(A)(I) UNLESS THE AGGREGATE AMOUNT OF SELLERS' DAMAGES (FOR ALL CLAIMS)
PURSUANT TO SECTION 12.3(A)(I) EXCEEDS $500,000 AND, IN SUCH EVENT,
INDEMNIFICATION SHALL BE MADE BY PURCHASER ONLY TO THE EXTENT OF SUCH EXCESS;
(II)
IN NO EVENT SHALL PURCHASER'S AGGREGATE OBLIGATION TO INDEMNIFY
SELLERS' INDEMNITEES PURSUANT TO SECTION 12.3(A) EXCEED $10 MILLION IN THE
AGGREGATE; PROVIDED, PURCHASER'S OBLIGATIONS TO PAY THE HOLDBACK AMOUNT,
ADJUSTMENT AMOUNT AND ACCRUED INTEREST ON SUCH AMOUNTS SHALL NOT BE SUBJECT TO
THIS $10 MILLION CAP;
(III)
THE AMOUNT OF ANY SELLERS' DAMAGES SHALL BE REDUCED BY ANY AMOUNT
RECEIVED BY A SELLERS' INDEMNITEE WITH RESPECT THERETO UNDER ANY INSURANCE
COVERAGE OR FROM ANY OTHER PARTY ALLEGED TO BE RESPONSIBLE THEREFOR.
SELLERS'
INDEMNITEES SHALL USE REASONABLE EFFORTS TO COLLECT ANY AMOUNTS AVAILABLE UNDER
SUCH INSURANCE COVERAGE AND FROM SUCH OTHER PARTY ALLEGED TO HAVE
RESPONSIBILITY.
IF A SELLERS' INDEMNITEE RECEIVES ANY AMOUNT UNDER INSURANCE
COVERAGE OR FROM SUCH OTHER PARTY WITH RESPECT TO SELLERS' DAMAGES AT ANY TIME
SUBSEQUENT TO ANY INDEMNIFICATION PROVIDED BY PURCHASER PURSUANT TO THIS
SECTION 12.3, THEN SUCH SELLER INDEMNITEE SHALL PROMPTLY REIMBURSE PURCHASER FOR
ANY PAYMENT MADE OR EXPENSE INCURRED BY PURCHASER IN CONNECTION WITH PROVIDING
SUCH INDEMNIFICATION UP TO SUCH AMOUNT RECEIVED BY SELLERS' INDEMNITEE; AND
(IV)
PURCHASER SHALL BE OBLIGATED TO INDEMNIFY SELLERS' INDEMNITEE
PURSUANT TO SECTION 12.3(A)(I) ONLY FOR THOSE CLAIMS GIVING RISE TO SELLERS'
DAMAGES AS TO WHICH SELLERS' INDEMNITEES HAVE GIVEN PURCHASER WRITTEN NOTICE
THEREOF PRIOR TO THE END OF THE APPLICABLE SURVIVAL PERIOD.
ANY WRITTEN NOTICE
DELIVERED BY A SELLERS' INDEMNITEE TO PURCHASER WITH RESPECT TO SELLERS' DAMAGES
SHALL SET FORTH WITH AS MUCH SPECIFICITY AS IS REASONABLY PRACTICABLE THE BASIS
OF THE CLAIM FOR SELLERS' DAMAGES AND, TO THE EXTENT REASONABLY PRACTICABLE, A
REASONABLE ESTIMATE OF THE AMOUNT THEREOF.
47
SECTION 12.4
INDEMNIFICATION PROCEDURE.
(A)
THE OBLIGATIONS OF SELLERS TO
INDEMNIFY PURCHASER INDEMNITEES UNDER SECTION 12.2 WITH RESPECT TO PURCHASER
DAMAGES AND THE OBLIGATIONS OF PURCHASER TO INDEMNIFY SELLERS' INDEMNITEES UNDER
SECTION 12.3 WITH RESPECT TO SELLERS' DAMAGES, IN ANY CASE RESULTING FROM THE
ASSERTION OF LIABILITY BY THIRD PARTIES AND UNDER ARTICLE X (EACH, AS THE CASE
MAY BE, A "THIRD PARTY CLAIM"), WILL BE SUBJECT TO THE FOLLOWING TERMS AND
CONDITIONS:
(I)
A PARTY CLAIMING INDEMNIFICATION UNDER THIS AGREEMENT (AN
"INDEMNIFIED PARTY") SHALL WITH REASONABLE PROMPTNESS AND WITHIN THE APPLICABLE
SURVIVAL PERIOD (I) NOTIFY THE PARTY FROM WHOM INDEMNIFICATION IS SOUGHT (THE
"INDEMNIFYING PARTY") OF ANY THIRD PARTY CLAIMS FOR WHICH INDEMNIFICATION IS
SOUGHT AND (II) TRANSMIT TO THE INDEMNIFYING PARTY A WRITTEN NOTICE ("THIRD
PARTY CLAIM NOTICE") DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE THIRD
PARTY CLAIM, A COPY OF ALL PAPERS SERVED WITH RESPECT TO SUCH THIRD PARTY CLAIM
(IF ANY), AN