AT THE RISK OF THE
INDEMNIFYING PARTY.
NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL HAVE THE
SAME RIGHT TO PARTICIPATE IN AT ITS OWN EXPENSE AND AT ITS OWN RISK, WITHOUT
EITHER PARTY HAVING THE RIGHT OF CONTROL, ANY PROCEEDING IF (X) THE CLAIM, IF
SUCCESSFUL, WOULD SET A PRECEDENT THAT WOULD MATERIALLY INTERFERE WITH, OR HAVE
A MATERIAL ADVERSE EFFECT ON, THE BUSINESS OR FINANCIAL CONDITION OF THE
INDEMNIFIED PARTY, OR (Y) THE CLAIM SEEKS ANY INJUNCTION OR EQUITABLE RELIEF
AGAINST THE INDEMNIFIED PARTY.
(B)
IF REQUESTED BY THE INDEMNIFYING PARTY, THE
INDEMNIFIED PARTY AGREES, AT THE INDEMNIFYING PARTY'S EXPENSE, TO COOPERATE WITH
THE INDEMNIFYING PARTY AND ITS COUNSEL IN CONTESTING ANY CLAIM OR DEMAND WHICH
THE INDEMNIFYING PARTY ELECTS TO CONTEST, OR, IF APPROPRIATE AND RELATED TO THE
CLAIM IN QUESTION, IN MAKING ANY COUNTERCLAIM
17
against the person asserting the third party claim or demand, or any
cross-complaint against any person.
Except as provided above, no claim as to
which indemnification is sought under this Agreement may be settled without the
consent of the Indemnifying Party.
(C)
IF ANY INDEMNIFIED PARTY SHOULD HAVE A
CLAIM AGAINST THE INDEMNIFYING PARTY HEREUNDER WHICH DOES NOT INVOLVE A CLAIM OR
DEMAND BEING ASSERTED AGAINST OR SOUGHT TO BE COLLECTED FROM IT BY A THIRD
PARTY, THE INDEMNIFIED PARTY SHALL PROMPTLY SEND A CLAIM NOTICE WITH RESPECT TO
SUCH CLAIM TO THE INDEMNIFYING PARTY, WHICH CLAIM NOTICE SHALL DESCRIBE IN
REASONABLE DETAIL THE NATURE OF SUCH NON-THIRD-PARTY CLAIM, AN ESTIMATE OF THE
AMOUNT OF DAMAGES ATTRIBUTABLE TO SUCH NON-THIRD PARTY CLAIM, AND THE BASIS OF
THE INDEMNIFIED PARTY'S REQUEST FOR INDEMNIFICATION UNDER THIS AGREEMENT.
IF
THE INDEMNIFYING PARTY DISPUTES SUCH CLAIM, SUCH DISPUTE SHALL BE RESOLVED BY
LITIGATION IN AN APPROPRIATE COURT OF COMPETENT JURISDICTION.
(D)
IN CONNECTION WITH THE MATTERS FOR WHICH
INDEMNIFICATION IS SOUGHT HEREUNDER WITH RESPECT TO ANY THIRD-PARTY CLAIM, UPON
EXECUTION OF REASONABLE AND CUSTOMARY CONFIDENTIALITY AGREEMENTS, (I) BUYER
AGREES TO GIVE SELLERS AND THEIR REPRESENTATIVES REASONABLE ACCESS DURING
REGULAR BUSINESS HOURS AND UPON FIVE (5) DAYS PRIOR WRITTEN NOTICE TO BUYER TO
THE BOOKS, RECORDS AND EMPLOYEES OF BUYER TO THE EXTENT SUCH REASONABLY RELATE
TO THE MATTERS TO WHICH THE CLAIM NOTICE RELATES AND (II) SELLERS AGREE TO GIVE
BUYER AND ITS REPRESENTATIVES REASONABLE ACCESS DURING REGULAR BUSINESS HOURS
AND UPON FIVE (5) DAYS PRIOR WRITTEN NOTICE TO SELLERS TO THE BOOKS, RECORDS AND
EMPLOYEES OF SELLERS TO THE EXTENT SUCH REASONABLY RELATE TO THE MATTERS TO
WHICH THE CLAIM NOTICE RELATES.
SECTION 6.4.
CERTAIN LIMITATIONS ON
INDEMNIFICATION.
(A)
ALL OF THE REPRESENTATIONS AND WARRANTIES
OF THE PARTIES HERETO CONTAINED IN OR ARISING OUT OF THIS AGREEMENT OR OTHERWISE
IN CONNECTION HEREWITH SHALL SURVIVE THE CLOSING HEREUNDER AND SHALL CONTINUE IN
FULL FORCE AND EFFECT THEREAFTER UNTIL THE SECOND ANNIVERSARY OF THE CLOSING
DATE, EXCEPT THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LAST
SENTENCE OF SECTION 3.1(A) AND THE FIRST SENTENCE OF SECTION 3.1(B) SHALL
SURVIVE INDEFINITELY.
UNLESS A SPECIFIED PERIOD IS SET FORTH