CERTIFICATE OR OTHER INSTRUMENT
DELIVERED BY OR ON BEHALF OF THE MEMBERS OR MOREX PURSUANT HERETO.
FOR THE
AVOIDANCE OF DOUBT, WIH SHALL NOT BE REQUIRED TO INDEMNIFY THK OR MOREX
SURVIVING LLC FOR ANY LOSSES UNDER THIS AGREEMENT.
(B)
SUBJECT TO (C) BELOW, THK AGREES TO INDEMNIFY AND HOLD HARMLESS
THE MEMBERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY
AND ALL LOSSES WHICH ARE CAUSED BY OR ARISE OUT OF (1) ANY DEFAULT IN THE
PERFORMANCE BY THK OR MOREX MERGER SUB OF ANY OBLIGATION OF THK CONTAINED IN, OR
CONTEMPLATED BY, THIS AGREEMENT, OR (2) ANY MATERIAL BREACH OF A REPRESENTATION
AND WARRANTY MADE BY THK OR MOREX MERGER SUB.
(C)
NO AMOUNT OF LOSS OR LOSSES SHALL BE PAYABLE BY ANY INDEMNIFYING
PARTY PURSUANT TO SECTION 9.2(A), IN THE CASE OF MOREX OR THE MEMBERS, OR
SECTION 9.2(B), IN THE CASE OF THK, UNLESS THE AGGREGATE AMOUNT OF THE LOSS OR
LOSSES THAT ARE INDEMNIFIABLE EXCEEDS $50,000.
EXCEPT IN THE CASE OF FRAUD
(INCLUDING INTENTIONAL MISREPRESENTATION), THE AMOUNT OF LOSS OR LOSSES PAYABLE
BY AN INDEMNIFYING PARTY PURSUANT TO THIS SECTION 9 SHALL NOT EXCEED AN AMOUNT
EQUAL TO THE AGGREGATE VALUE OF THE MERGER CONSIDERATION ACTUALLY PAID OR
RECEIVED, AS THE CASE
38
MAY BE, BY SUCH INDEMNIFYING PARTY, PROVIDED THAT LE AND RM SHALL BE JOINTLY AND
SEVERALLY LIABLE FOR ANY AMOUNT UP TO AND INCLUDING THE TOTAL AGGREGATE MERGER
CONSIDERATION ACTUALLY PAID TO BOTH LE AND RM.
(D)
IF AN INDEMNIFIED PARTY RECOVERS A LOSS OR LOSSES FROM AN
INDEMNIFYING PARTY HEREUNDER, THE INDEMNIFYING PARTY SHALL BE SUBROGATED, TO THE
EXTENT OF THE RECOVERY, TO THE INDEMNIFIED PARTY'S RIGHTS AGAINST ANY THIRD
PARTY, OTHER THAN A THIRD PARTY WITH WHOM THE INDEMNIFIED PARTY HAS A MATERIAL
BUSINESS AGREEMENT OR ARRANGEMENT, WITH RESPECT TO THE LOSS OR LOSSES SUBJECT TO
THE SUBROGATION RIGHTS OF ANY INSURER PROVIDING INSURANCE COVERAGE UNDER ONE OF
THE INDEMNIFIED PARTY'S POLICIES AND EXCEPT TO THE EXTENT THAT THE GRANT OF
SUBROGATION RIGHTS TO THE INDEMNIFYING PARTY IS PROHIBITED BY THE TERMS OF THE
APPLICABLE INSURANCE POLICY.
(E)
THE AMOUNT OF ANY LOSS OR LOSSES OWED TO ANY INDEMNIFIED PARTY
HEREUNDER SHALL BE NET OF ANY INSURANCE, INDEMNITY, CONTRIBUTION OR OTHER
PAYMENTS OR RECOVERIES OF A LIKE NATURE WITH RESPECT THERETO ACTUALLY RECOVERED
(IT BEING AGREED THAT, PROMPTLY AFTER THE REALIZATION OF ANY SUCH REDUCTIONS IN
THE LOSS OR LOSSES PURSUANT HERETO, SUCH PARTY SHALL REIMBURSE THE INDEMNIFYING
PARTY FOR THE REDUCTION FOR WHICH THE PARTY WAS INDEMNIFIED PRIOR TO THE
REALIZATION OF THE REDUCTION).
(F)
EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT, FROM AND AFTER
THE CLOSING AND EXCEPT FOR CLAIMS SEEKING EQUITABLE RELIEF, ITS SOLE REMEDY
RELATING TO THE MERGER, OR THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
SHALL BE PURSUANT TO THE INDEMNIFICATION PROVISIONS OF THIS ARTICLE IX.
IN
FURTHERANCE OF THE FOREGOING, EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL OTHER RIGHTS, CLAIMS, AND CAUSES OF