LIABILITIES, INTEREST, OR CAUSES OF ACTION WHATSOEVER, IN LAW OR IN EQUITY,
KNOWN OR UNKNOWN, WHICH SUCH PARTIES MIGHT NOW OR SUBSEQUENTLY MAY HAVE, BASED
ON, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT TO THE EXTENT CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT, OR CONCURRENT), STRICT LIABILITY,
OR OTHER LEGAL FAULT OF ANY RELEASED PERSON.
(E)
"DAMAGES" SHALL MEAN THE AMOUNT OF ANY ACTUAL LIABILITY, LOSS,
COST, EXPENSE, CLAIM, AWARD, OR JUDGMENT INCURRED OR SUFFERED BY ANY INDEMNIFIED
PERSON ARISING OUT OF OR RESULTING FROM THE INDEMNIFIED MATTER, WHETHER
ATTRIBUTABLE TO PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, CONTRACT CLAIMS,
TORTS OR OTHERWISE INCLUDING REASONABLE FEES AND EXPENSES OF ATTORNEYS,
CONSULTANTS, ACCOUNTANTS, OR OTHER AGENTS AND EXPERTS REASONABLY INCIDENT TO
MATTERS INDEMNIFIED AGAINST, AND THE COSTS OF INVESTIGATION AND/OR MONITORING OF
SUCH MATTERS, AND THE COSTS OF ENFORCEMENT OF THE INDEMNITY; PROVIDED, HOWEVER,
THAT NO PARTY SHALL BE ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT FOR, AND
"DAMAGES" SHALL NOT INCLUDE (EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE AWARDED
TO AN UNAFFILIATED
THIRD PERSON) (I) LOSS OF PROFITS OR OTHER CONSEQUENTIAL
DAMAGES SUFFERED BY THE PARTY CLAIMING INDEMNIFICATION, OR ANY PUNITIVE DAMAGES
OR (II) IN THE EVENT THE INDEMNIFIED PERSON TAKES ANY ACTION THAT EXCEEDS THE
SCOPE OF THE OPERATING AUTHORITY GRANTED TO IT UNDER THE LLC AGREEMENT, ANY
LIABILITY, LOSS, COST, EXPENSE, CLAIM, AWARD OR JUDGMENT TO THE EXTENT AND ONLY
TO THE EXTENT INCREASED BY SUCH ACTION..
(F)
THE INDEMNITY TO WHICH EACH PARTY IS ENTITLED UNDER THIS
AGREEMENT SHALL BE FOR THE BENEFIT OF AND EXTEND TO SUCH INDEMNIFIED PERSONS
AFFILIATED WITH SUCH PARTY AS DESCRIBED ABOVE IN THIS AGREEMENT.
ANY CLAIM FOR
INDEMNITY UNDER THIS AGREEMENT BY ANY SUCH INDEMNIFIED PERSON (OTHER THAN A
PARTY) MUST BE BROUGHT AND ADMINISTERED BY THE APPLICABLE PARTY TO THIS
AGREEMENT.
NO INDEMNIFIED PERSON OTHER THAN A PARTY SHALL HAVE ANY RIGHTS
AGAINST ANY PARTY UNDER THE TERMS OF THIS SECTION 11.1 OR OTHERWISE UNDER THIS
AGREEMENT EXCEPT AS MAY BE EXERCISED ON ITS BEHALF BY SUCH PARTY, PURSUANT TO
THIS SECTION 11.1(F).
EACH PARTY MAY ELECT TO EXERCISE OR NOT EXERCISE
INDEMNIFICATION RIGHTS UNDER THIS SECTION ON BEHALF OF THE OTHER INDEMNIFIED
PERSONS AFFILIATED WITH IT IN ITS SOLE DISCRETION AND SHALL HAVE NO LIABILITY TO
ANY SUCH OTHER INDEMNIFIED PERSON FOR ANY ACTION OR INACTION UNDER THIS
AGREEMENT.
(G)
FOR THE SOLE PURPOSES OF THE INDEMNITIES SET FORTH IN THIS
SECTION 11.1, IN DETERMINING A BREACH OR INACCURACY OF ANY PARTY'S
REPRESENTATIONS OR WARRANTIES AND IN CALCULATING THE AMOUNT OF DAMAGES INCURRED,
ARISING OUT OF OR RELATING TO ANY SUCH BREACH OR INACCURACY OF A REPRESENTATION
OR WARRANTY, ANY REFERENCES TO "MATERIAL ADVERSE EFFECT" OR OTHER MATERIALITY
QUALIFICATIONS (OR CORRELATIVE TERMS) SHALL BE DISREGARDED.
38
Section 11.2
Indemnification Actions.
All claims for
indemnification under Section 11.1 shall be asserted and resolved as follows:
(A)
FOR PURPOSES OF THIS AGREEMENT, THE TERM "INDEMNIFYING PERSON"