ANY LOSS ARISING UNDER SECTION 6.2(A)(I) OR SECTION 6.2(B)(I) UNLESS, AND
ONLY TO THE EXTENT, THE AGGREGATE AMOUNT OF ALL SUCH LOSSES EXCEEDS $150,000.00
(THE "DEDUCTIBLE"), IN WHICH CASE SUCH PARTY(IES) SHALL BE LIABLE FOR ALL SUCH
LOSSES IN EXCESS OF THE DEDUCTIBLE, BUT NOT THE INITIAL $150,000.00; PROVIDED
THAT THE COMPANY'S AND EACH OF THE COMPANY SHAREHOLDER'S AGGREGATE LIABILITY
RISING UNDER SECTION 6.2(A)(I) OR BUYER'S AGGREGATE LIABILITY UNDER
SECTION 6.2(B)(I) SHALL IN NO EVENT EXCEED $2,000,000.00, RESPECTIVELY (THE
"CAP"); PROVIDED FURTHER THAT THE FOREGOING LIMITATIONS (I.E., THE DEDUCTIBLE
AND THE CAP) SHALL NOT APPLY WITH RESPECT TO ANY LOSS ARISING FROM OR RELATED TO
A BREACH OF:
36
(A) THE COVENANTS OF THE COMPANY OR EACH OF THE COMPANY SHAREHOLDERS IN
SECTION 7.6 (NON-COMPETITION; NON-SOLICITATION AND CONFIDENTIALITY) OR ANY OF
THE MATTERS REFERRED TO IN SECTIONS 6.2(A)(III) AND 6.2(A)(IV) ABOVE OR
(B) THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EACH OF THE COMPANY
SHAREHOLDERS SET FORTH IN SECTION 4.1 (ORGANIZATION AND CORPORATE POWER),
SECTION 4.2 (AUTHORIZATION OF TRANSACTIONS), SECTION 4.3 (ABSENCE OF CONFLICTS),
SECTION 4.7 (TITLE TO PROPERTIES), SECTION 4.10 (TAXES), OR SECTION 4.21
(ENVIRONMENTAL MATTERS).
(III)
TO THE EXTENT ANY CLAIM FOR INDEMNIFICATION BY ANY BUYER PARTY IS
COVERED BY APPLICABLE INSURANCE, BUYER AGREES THAT IT MUST FIRST USE
COMMERCIALLY REASONABLE EFFORTS TO SEEK RECOVERY FROM SUCH INSURANCE AND THE
INDEMNIFICATION CLAIM SHALL BE REDUCED TO THE EXTENT OF ANY SUCH INSURANCE
PROCEEDS ACTUALLY PAID TO BUYER.
(D)
PROCEDURE.
IF A PARTY HERETO SEEKS INDEMNIFICATION UNDER THIS ARTICLE 6
(THE "INDEMNIFIED PARTY") WITH RESPECT TO ANY CLAIM, DEMAND, ACTION, PROCEEDING
OR OTHER MATTER PURSUANT TO THIS AGREEMENT OR ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREBY (THE "CLAIM"), THE INDEMNIFIED PARTY SHALL GIVE WRITTEN
NOTICE TO THE OTHER PARTY(IES) (THE "INDEMNIFYING PARTY") AFTER RECEIVING
WRITTEN NOTICE OF OR DISCOVERING FACTS GIVING RISE TO THE CLAIM (A "NOTICE OF
CLAIM"), WHICH NOTICE OF CLAIM SHALL CONTAIN THE FOLLOWING INFORMATION TO THE
EXTENT IT IS REASONABLY AVAILABLE TO THE INDEMNIFIED PARTY:
(I) AN ESTIMATE OF
THE AMOUNT THEN REASONABLY ASCERTAINABLE OF THE ALLEGED LOSS, EXPENSE OR
LIABILITY AGAINST WHICH THE INDEMNIFIED PARTY IS INDEMNIFIED; (II) A
DESCRIPTION, IN REASONABLE DETAIL, OF THE CIRCUMSTANCES GIVING RISE TO THE
ALLEGED LOSS, EXPENSE, OR LIABILITY; AND (III) A STATEMENT IDENTIFYING EACH
PARTY AGAINST WHOM A CLAIM IS ASSERTED; PROVIDED THAT THE FAILURE TO SO NOTIFY
THE INDEMNIFYING PARTY SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS OR HIS
OBLIGATIONS HEREUNDER EXCEPT TO THE EXTENT THE INDEMNIFYING PARTY IS MATERIALLY
PREJUDICED BY SUCH FAILURE.
IF THE INDEMNIFYING PARTY NOTIFIES THE INDEMNIFIED
PARTY WITHIN THIRTY (30) DAYS AFTER RECEIVING THE NOTICE OF CLAIM THAT IT WILL
ASSUME THE DEFENSE THEREOF:
(I)
THE INDEMNIFYING PARTY SHALL DEFEND THE INDEMNIFIED PARTY AGAINST
THE MATTER WITH COUNSEL OF THE INDEMNIFYING PARTY'S CHOICE REASONABLY
SATISFACTORY TO THE INDEMNIFIED PARTY;
(II)
THE INDEMNIFIED PARTY MAY RETAIN SEPARATE COUNSEL AT ITS SOLE
COST AND EXPENSE (EXCEPT THAT THE INDEMNIFYING PARTY WILL BE RESPONSIBLE FOR THE
FEES AND EXPENSES OF THE