WITH RESPECT TO MATTERS COVERED BY SECTION 10.3(A)(I) OR (II)
SHALL NOT EXCEED IN THE AGGREGATE USD $10,000,000; AND
(iii)
the maximum amount for which the Buyer shall
be liable with respect to the agreements and matters covered by Section
10.3(a)(iii) shall not exceed the Initial Purchase Price;
(C)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FOR
PURPOSES OF SECTION 10.3, IN DETERMINING THE AMOUNT OF ANY LOSSES, NO EFFECT
SHALL BE GIVEN TO ANY QUALIFICATION AS TO MATERIALITY OR MATERIAL ADVERSE
EFFECT.
Section 10.4.
Procedures for Indemnification.
(A)
IF A PARTY ENTITLED TO INDEMNIFICATION UNDER THIS ARTICLE 10 (AN
"INDEMNITEE") ASSERTS THAT A PARTY OBLIGATED TO INDEMNIFY IT UNDER THIS ARTICLE
10 (AN "INDEMNITOR") HAS BECOME OBLIGATED TO SUCH INDEMNITEE PURSUANT TO SECTION
10.2 OR 10.3, OR IF ANY SUIT, ACTION, INVESTIGATION, CLAIM OR PROCEEDING IS
BEGUN, MADE OR INSTITUTED AS A RESULT OF WHICH THE INDEMNITOR MAY BECOME
OBLIGATED TO AN INDEMNITEE UNDER SECTION 10.2 OR 10.3, SUCH INDEMNITEE SHALL
GIVE PROMPT WRITTEN NOTICE THEREOF TO THE INDEMNITOR; PROVIDED, HOWEVER, THAT
THE FAILURE OF
44
THE INDEMNITEE TO GIVE NOTICE TO THE INDEMNITOR SHALL NOT RELEASE THE INDEMNITOR
OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, EXCEPT TO THE EXTENT THE
INDEMNITOR SHALL HAVE BEEN PREJUDICED BY SUCH FAILURE.
THE INDEMNITOR SHALL
HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO DEFEND, CONTEST OR OTHERWISE PROTECT
THE INDEMNITEE AGAINST ANY SUCH SUIT, ACTION, INVESTIGATION, CLAIM OR PROCEEDING
AT ITS SOLE COST AND EXPENSE.
IF THE INDEMNITOR SO ELECTS TO DEFEND, CONTEST OR
OTHERWISE PROTECT THE INDEMNITEE, THE INDEMNITEE SHALL (I) MAKE AVAILABLE TO THE
INDEMNITOR ALL RELEVANT BOOKS AND RECORDS IN ITS POSSESSION AND (II) COOPERATE
AND ASSIST THE INDEMNITOR TO THE EXTENT REASONABLY POSSIBLE.
THE INDEMNITEE
SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO PARTICIPATE AT ITS OWN EXPENSE
IN THE DEFENSE THEREOF BY COUNSEL OF THE INDEMNITEE'S CHOICE.
IF THE INDEMNITOR
FAILS TO DEFEND, CONTEST OR OTHERWISE PROTECT AGAINST SUCH SUIT, ACTION,
INVESTIGATION, CLAIM OR PROCEEDING, THE INDEMNITEE SHALL HAVE THE RIGHT TO DO
SO, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO MAKE ANY COMPROMISE OR
SETTLEMENT THEREOF, AND THE INDEMNITEE SHALL BE ENTITLED TO RECOVER THE ENTIRE
COST THEREOF FROM THE INDEMNITOR, INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES, DISBURSEMENTS AND AMOUNTS PAID AS THE RESULT OF SUCH SUIT,
ACTION, INVESTIGATION, CLAIM OR PROCEEDING.
(B)
RECOUPMENT UNDER THE LETTER OF CREDIT.
FROM AND AFTER THE CLOSING
DATE (BUT SUBJECT TO ARTICLE 10), A BUYER INDEMNITEE SHALL FIRST BE REQUIRED TO
SEEK RECOVERY WITH RESPECT TO ANY LOSS PURSUANT TO ARTICLE 9 AND THIS ARTICLE 10
FROM THE LETTER OF CREDIT IN ACCORDANCE WITH THE TERMS OF SECTION 2.3.
Section 10.5.
Exclusive Remedy.
Notwithstanding any provision of this
Agreement to the contrary, (a) absent fraud or intentional misrepresentation on
the part of any party or a claim for injunctive relief, indemnification claims
brought in accordance with and subject to either Article 9 or this Article 10,
as the case may be, shall be the exclusive remedy of any Indemnitee