THEIR AFFILIATES, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS (EACH, A "SELLERS INDEMNIFIED
PARTY") FROM AND AGAINST ALL INDEMNIFIABLE LOSSES ASSERTED AGAINST OR SUFFERED
BY THE SELLERS INDEMNIFIED PARTIES RELATING TO, RESULTING FROM OR ARISING OUT OF
(I) ANY BREACH BY EITHER OF THE BUYERS OF ANY OF THE REPRESENTATIONS AND
WARRANTIES OF THE BUYERS CONTAINED IN THIS AGREEMENT, OR ANY INACCURATE
STATEMENT IN THE CERTIFICATE DELIVERED PURSUANT TO SECTION 8.3(D), (II) ANY
BREACH BY EITHER OF THE BUYERS OF ANY COVENANT OR AGREEMENT OF THE BUYERS
CONTAINED IN THIS AGREEMENT, OR (III) THE ASSUMED LIABILITIES.
NOTWITHSTANDING
THE FOREGOING, (A) THE BUYERS SHALL HAVE NO LIABILITY UNDER
SECTION 9.1(B)(I) FOR INDEMNIFIABLE LOSSES (OTHER THAN INDEMNIFIABLE LOSSES
PURSUANT TO SECTION 7.8), UNLESS AND UNTIL THE AGGREGATE INDEMNIFIABLE LOSSES
INCURRED BY THE SELLERS INDEMNIFIED PARTIES
54
EXCEED $750,000 IN WHICH CASE THE BUYERS SHALL BE JOINTLY AND SEVERALLY LIABLE
FOR ALL LOSSES IN EXCESS OF $750,000; (B) IN NO EVENT SHALL THE BUYERS'
AGGREGATE LIABILITY UNDER SECTION 9.1(B)(I) EXCEED $50,000,000; (C) IN NO EVENT
SHALL THE BUYERS' AGGREGATE LIABILITY UNDER SECTION 9.1(B)(II) EXCEED THE AMOUNT
OF THE PURCHASE PRICE; AND (D) FOR PURPOSES OF CALCULATING THE AMOUNT OF
INDEMNIFIABLE LOSSES, ALL REFERENCES TO MATERIALITY, MATERIAL ADVERSE EFFECT OR
SIMILAR QUALIFIERS SHALL BE DISREGARDED.
(C)
ANY PERSON ENTITLED TO RECEIVE
INDEMNIFICATION UNDER THIS AGREEMENT (AN "INDEMNITEE") HAVING A CLAIM UNDER
THESE INDEMNIFICATION PROVISIONS SHALL MAKE A GOOD FAITH EFFORT TO RECOVER ALL
INDEMNIFIABLE LOSSES FROM INSURERS OF SUCH INDEMNITEE UNDER APPLICABLE INSURANCE
POLICIES SO AS TO REDUCE THE AMOUNT OF ANY INDEMNIFIABLE LOSS HEREUNDER;
PROVIDED THAT IN NO EVENT SHALL AN INDEMNITEE BE REQUIRED TO INITIATE LITIGATION
OR ARBITRATION AGAINST AN INSURANCE PROVIDER BEFORE RECEIVING PAYMENT FOR ANY
INDEMNIFIABLE LOSS PURSUANT TO THIS ARTICLE IX.
THE AMOUNT OF INDEMNIFIABLE
LOSS WILL BE (I) REDUCED TO THE EXTENT THAT INDEMNITEE RECEIVES ANY INSURANCE
PROCEEDS WITH RESPECT TO AN INDEMNIFIABLE LOSS AND (II) REDUCED OR INCREASED TO
TAKE INTO ACCOUNT ANY NET TAX BENEFIT OR BURDEN RECOGNIZED BY THE INDEMNITEE
ARISING FROM THE RECOGNITION OF THE INDEMNIFIABLE LOSS AND ANY PAYMENT ACTUALLY
RECEIVED WITH RESPECT TO AN INDEMNIFIABLE LOSS.
(D)
THE EXPIRATION, TERMINATION OR
EXTINGUISHMENT OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT PURSUANT
TO SECTION 11.3 SHALL NOT AFFECT THE PARTIES' OBLIGATIONS UNDER THIS SECTION 9.1
IF THE INDEMNITEE PROVIDED THE PERSON REQUIRED TO PROVIDE INDEMNIFICATION UNDER
THIS AGREEMENT (THE "INDEMNIFYING PARTY") WITH PROPER NOTICE OF THE CLAIM OR
EVENT FOR WHICH INDEMNIFICATION IS SOUGHT PRIOR TO SUCH EXPIRATION, TERMINATION
OR EXTINGUISHMENT.
(E)
FOLLOWING THE CLOSING AND EXCEPT WITH
RESPECT TO INTENTIONAL BREACHES OF THIS AGREEMENT, WILLFUL MISCONDUCT OR FRAUD,
THE REMEDIES SET FORTH IN THIS ARTICLE IX WILL BE THE SOLE AND EXCLUSIVE
REMEDIES FOR ANY AND ALL CLAIMS, DAMAGES, COMPLAINTS, DEMANDS, CAUSES OF ACTION,
INVESTIGATIONS, HEARINGS, ACTIONS, SUITS OR OTHER PROCEEDINGS IN CONNECTION
WITH, ARISING FROM OR RELATING TO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS
AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY AND ARE IN LIEU OF ANY AND
ALL