OF DAMAGES IN RESPECT OF A CLAIM UNDER THIS
ARTICLE XI, THERE SHALL BE DEDUCTED AN AMOUNT EQUAL TO THE AMOUNT OF ANY
THIRD-PARTY INSURANCE PROCEEDS ACTUALLY RECEIVED BY THE INDEMNIFIED PARTY MAKING
SUCH CLAIM WITH RESPECT TO SUCH DAMAGES, LESS THE COST OF ANY INCREASE IN
INSURANCE PREMIUMS OVER THE PROJECTED PERIOD OF SUCH INCREASE AS A RESULT OF
MAKING A CLAIM FOR SUCH DAMAGES, PROVIDED THAT THERE SHALL BE NO OBLIGATION TO
MAKE A CLAIM, AND NO OFFSET AGAINST DAMAGES SHALL BE MADE IF A PARTY REASONABLY
BELIEVES THAT MAKING A CLAIM FOR SUCH DAMAGES IS REASONABLY LIKELY TO RESULT IN
A NON-RENEWAL OF THE INSURANCE POLICY.
11.5
Other Indemnification Provisions.
(A)
TO THE EXTENT THAT ANY REPRESENTATIONS AND WARRANTIES OF THE SELLERS,
PARENT OR BUYER, AS APPLICABLE, HAVE BEEN BREACHED, THEREBY ENTITLING THE
NON-BREACHING PARTY TO INDEMNIFICATION PURSUANT TO SECTION 11.2 AND SECTION 11.3
HEREOF, IT IS EXPRESSLY AGREED AND ACKNOWLEDGED BY THE PARTIES THAT SOLELY FOR
PURPOSES OF CALCULATION OF DAMAGES IN CONNECTION WITH ANY RIGHT TO
INDEMNIFICATION, THE REPRESENTATIONS AND WARRANTIES OF EITHER OR THE SELLERS OR
PARENT AND BUYER, AS APPLICABLE, THAT HAVE BEEN BREACHED SHALL BE DEEMED NOT
QUALIFIED BY ANY REFERENCES THEREIN TO MATERIALITY GENERALLY, SELLERS' KNOWLEDGE
OR TO WHETHER OR NOT ANY BREACH OR INACCURACY RESULTS IN A MATERIAL ADVERSE
EFFECT.
(B)
FOLLOWING THE CLOSING, THE PARTIES' RIGHTS TO INDEMNIFICATION PURSUANT TO
THIS ARTICLE XI SHALL, EXCEPT FOR EQUITABLE RELIEF AND SPECIFIC PERFORMANCE OF
COVENANTS THAT SURVIVE CLOSING AND FOR CLAIMS UNDER SECTION 12.4 OF THIS
AGREEMENT, BE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO THE PARTIES WITH
RESPECT TO ANY MATTER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN FOR CLAIMS OF FRAUD.
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11.6
Procedure for Indemnification.
The procedure to be followed in
connection with any claim for indemnification by Buyer Indemnified Parties under
Section 11.2 or Seller Indemnified Parties under Section 11.3 or any claims by
one party against the other is set forth below:
(A)
NOTICE.
WHENEVER ANY INDEMNIFIED PARTY SHALL HAVE RECEIVED NOTICE THAT A
CLAIM HAS BEEN ASSERTED OR THREATENED AGAINST SUCH INDEMNIFIED PARTY, WHICH, IF
VALID, WOULD SUBJECT THE INDEMNIFYING PARTY (THE "INDEMNIFYING PARTY") TO AN
INDEMNITY OBLIGATION UNDER THIS AGREEMENT, THE INDEMNIFIED PARTY SHALL PROMPTLY
NOTIFY THE INDEMNIFYING PARTY OF SUCH CLAIM; PROVIDED, HOWEVER, THAT FAILURE TO
SO NOTIFY THE INDEMNIFYING PARTY SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ITS
INDEMNIFICATION OBLIGATIONS HEREUNDER, EXCEPT TO THE EXTENT THE INDEMNIFYING
PARTY IS ACTUALLY PREJUDICED THEREBY.
ANY SUCH NOTICE MUST BE MADE TO THE
INDEMNIFYING PARTY NOT LATER THAN THE EXPIRATION OF THE APPLICABLE SURVIVAL
PERIOD SPECIFIED IN SECTION 11.1 ABOVE.
(B)
DEFENSE OF A THIRD PARTY CLAIM.
IF ANY THIRD PARTY SHALL NOTIFY ANY PARTY
WITH RESPECT TO ANY MATTER (A "THIRD PARTY CLAIM") THAT MAY GIVE RISE TO A CLAIM
FOR INDEMNIFICATION AGAINST ANY OTHER PARTY UNDER THIS ARTICLE XI, THE
INDEMNIFYING PARTY WILL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO ASSUME THE
DEFENSE