MATTERS COVERED THEREBY), NOBLE
AGREES TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS PURCHASER AND ITS
AFFILIATES, AND ITS AND THEIR, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND REPRESENTATIVES (THE "PURCHASER INDEMNIFIED PARTIES") FROM AND AGAINST ANY
AND ALL LOSSES THAT ARE ATTRIBUTABLE TO (I) A BREACH BY NOBLE OF ANY OF ITS
REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER, (II) ANY
LAWSUIT, CAUSE OF ACTION OR CLAIM, INCLUDING THE FIRST ITEM LISTED ON SCHEDULE
4.9, ASSERTED BY A THIRD-PARTY RELATING TO THE ASSETS THAT IS RECEIVED BY, OR
FILED, ISSUED OR COMMENCED AGAINST, NOBLE OR ANY OF ITS AFFILIATES ON OR BEFORE
THE CLOSING DATE, (III) THE OWNERSHIP OR OPERATION OF THE ASSETS BEFORE THE
EFFECTIVE TIME OR (IV) THE EXCLUDED ASSETS, TO THE EXTENT ONLY THAT (A)
PURCHASER PROVIDES NOBLE WITH A CLAIM NOTICE PRIOR TO THE EXPIRATION OF THE
SURVIVAL PERIOD FOR THE APPLICABLE REPRESENTATION, WARRANTY, AGREEMENT OR
COVENANT, AND (B) SUCH LOSSES UNDER (III) ABOVE ARE DETERMINED TO BE THE RESULT
OF OR CAUSED BY NOBLE'S VIOLATION OF APPLICABLE LAW OR FAILURE TO FULFILL DUTIES
IMPOSED BY APPLICABLE LAW AND ONLY TO THE EXTENT THAT SUCH LOSSES ARE THE RESULT
OF A THIRD-PARTY CLAIM, LAWSUIT OR ADMINISTRATIVE PROCEEDING THAT IS RECEIVED
BY, OR FILED, ISSUED OR COMMENCED AGAINST, PURCHASER ON OR BEFORE THREE HUNDRED
SIXTY-FIVE (365) DAYS AFTER THE CLOSING DATE.
(D)
THE INDEMNITY, DEFENSE AND HOLD HARMLESS
OBLIGATIONS SET FORTH IN SECTIONS 11.4(B) AND (C) ABOVE SHALL NOT APPLY TO (I) A
CLAIM FOR INDEMNIFICATION BY A PARTY THAT RELATES TO ANY AMOUNT OR ITEM FOR
WHICH SUCH PARTY RECEIVED CREDIT AS AN ADJUSTMENT TO THE PURCHASE PRICE PURSUANT
TO THE PROVISIONS HEREOF AND (II) EITHER PARTY'S COSTS AND EXPENSES WITH RESPECT
TO THE NEGOTIATION AND CONSUMMATION OF THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
31
(E)
ALL CLAIMS FOR INDEMNIFICATION UNDER THIS
AGREEMENT SHALL BE ASSERTED AND RESOLVED AS FOLLOWS:
(I)
TO MAKE CLAIM FOR INDEMNIFICATION UNDER
THIS AGREEMENT, THE PARTY HAVING THE RIGHT TO BE INDEMNIFIED (THE "INDEMNIFIED
PARTY") SHALL NOTIFY THE PARTY HAVING THE OBLIGATION TO INDEMNIFY ANOTHER PARTY
OR PARTIES (THE "INDEMNIFYING PARTY") OF ITS CLAIM, INCLUDING THE SPECIFIC BASIS
FOR ITS CLAIM (THE "CLAIM NOTICE").
IN THE EVENT THAT THE CLAIM FOR
INDEMNIFICATION IS BASED UPON A CLAIM BY A THIRD PARTY AGAINST THE INDEMNIFIED
PARTY (A "THIRD PARTY CLAIM"), THE INDEMNIFIED PARTY SHALL PROVIDE ITS CLAIM
NOTICE PROMPTLY AFTER THE INDEMNIFIED PARTY HAS ACTUAL KNOWLEDGE OF THE THIRD
PARTY CLAIM AND SHALL ENCLOSE A COPY OF ALL PAPERS (IF ANY) SERVED WITH RESPECT
TO THE THIRD PARTY CLAIM; PROVIDED THAT THE FAILURE OF ANY INDEMNIFIED PARTY TO
GIVE NOTICE OF A CLAIM AS PROVIDED IN THIS SECTION 11.4(E) SHALL NOT RELIEVE THE
INDEMNIFYING PARTY OF ITS OBLIGATIONS HEREUNDER EXCEPT TO THE EXTENT SUCH
FAILURE MATERIALLY PREJUDICES THE INDEMNIFYING PARTY'S ABILITY TO DEFEND AGAINST
THE CLAIM AND THEN ONLY TO EXTENT OF SUCH PREJUDICE.
IF THE CLAIM FOR
INDEMNIFICATION IS BASED UPON AN INACCURACY OR BREACH OF A REPRESENTATION,
WARRANTY, COVENANT OR