INDEMNIFICATION PURSUANT TO THIS ARTICLE VI.
IN ANY CASE WHERE AN
INDEMNIFIED PARTY RECOVERS FROM A THIRD PARTY ANY AMOUNT IN RESPECT OF A MATTER
FOR WHICH AN INDEMNIFYING PARTY HAS PREVIOUSLY INDEMNIFIED IT PURSUANT TO THIS
ARTICLE VI, THE INDEMNIFIED PARTY SHALL PROMPTLY PAY OVER TO THE INDEMNIFYING
PARTY THE AMOUNT SO RECOVERED (AFTER DEDUCTING THEREFROM THE AMOUNT OF EXPENSES
INCURRED BY IT IN PROCURING SUCH RECOVERY), BUT NOT IN EXCESS OF THE SUM OF
(I) ANY AMOUNT PREVIOUSLY PAID BY THE INDEMNIFYING PARTY TO OR ON BEHALF OF THE
INDEMNIFIED PARTY IN RESPECT OF SUCH CLAIM AND (II) ANY AMOUNT EXPENDED BY THE
INDEMNIFYING PARTY IN PURSUING OR DEFENDING ANY CLAIM ARISING OUT OF SUCH
MATTER.
UPON PAYMENT IN FULL OF ANY SUCH AMOUNTS RECOVERED, THE INDEMNIFYING
PARTY SHALL BE SUBROGATED TO THE EXTENT OF SUCH PAYMENT TO THE RIGHTS OF THE
INDEMNIFIED PARTY AGAINST ANY PERSON (OTHER THAN AN INDEMNIFIED PARTY) WITH
RESPECT TO THE SUBJECT MATTER OF SUCH CLAIM.
ANY INDEMNIFIED PARTY SHALL ASSIGN
OR OTHERWISE REASONABLY COOPERATE WITH THE INDEMNIFYING PARTY TO PURSUE ANY
CLAIMS AGAINST, OR OTHERWISE RECOVER AMOUNTS FROM, ANY PERSON LIABLE OR
RESPONSIBLE FOR ANY LOSSES FOR WHICH INDEMNIFICATION HAS BEEN RECEIVED PURSUANT
TO THIS AGREEMENT.
6.8
EXCLUSIVE REMEDY.
EXCEPT FOR (I) THE
AVAILABILITY OF INJUNCTIVE RELIEF, (II) AS PROVIDED IN SECTION 6.6, AND
(III) ANY CLAIM BY THE SELLERS FOR PAYMENT OF THE NOTE, THE SELLERS AND THE
BUYER PARTIES ACKNOWLEDGE AND AGREE THAT, FROM AND AFTER THE CLOSING DATE, THE
INDEMNIFICATION PROVISIONS OF THIS ARTICLE VI SHALL BE THE SOLE AND EXCLUSIVE
REMEDIES OF THE SELLERS AND BUYER PARTIES, RESPECTIVELY, FOR ANY BREACH OF THE
REPRESENTATIONS OR WARRANTIES IN THIS AGREEMENT, FOR ANY FAILURE TO PERFORM OR
COMPLY WITH ANY COVENANTS OR AGREEMENTS CONTAINED HEREIN OR OTHERWISE WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
IN FURTHERANCE OF THE
FOREGOING, EXCEPT AS SET FORTH IN CLAUSES (I) THROUGH (III) IN THE FIRST
SENTENCE OF THIS SECTION 6.8, EACH PARTY HERETO HEREBY WAIVES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION THEY
MAY HAVE AGAINST THE OTHER PARTIES HERETO AND THEIR AFFILIATES FROM AND AFTER
THE CLOSING DATE ARISING UNDER OR BASED UPON ANY APPLICABLE LAW OR OTHERWISE,
WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEPT PURSUANT TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE VI.
23
ARTICLE VII
CERTAIN DEFINITIONS; INTERPRETATION
7.1
CERTAIN DEFINITIONS.
FOR PURPOSES OF THIS AGREEMENT, THE
FOLLOWING TERMS HAVE THE MEANINGS SPECIFIED OR REFERRED TO IN THIS ARTICLE VII:
"Action" means any suit, action, arbitration, cause of action, claim, complaint,
criminal prosecution, investigation, governmental or other administrative
proceeding, whether at law or at equity, before or by any Court or Governmental
Authority, before any arbitrator or other tribunal.
"Affiliate" means, with respect to any Person, a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned Person; and "control"
(including