AND AGREEMENTS OF THE PARTIES CONTAINED IN ARTICLE 4, ARTICLE 5 AND
ARTICLE 6 (EXCLUDING SECTION 6.2, WHICH SHALL BE SEPARATELY ENFORCEABLE BY THE
INJURED PARTY PURSUANT TO WHATEVER RIGHTS AND REMEDIES ARE AVAILABLE TO IT
OUTSIDE OF THIS ARTICLE 10) AND THE AFFIRMATIONS OF SUCH REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED IN THE CERTIFICATE DELIVERED BY
EACH PARTY AT CLOSING PURSUANT TO SECTION 8.2(B) OR SECTION 8.3(B), AS
APPLICABLE.
EXCEPT FOR (I) THE REMEDIES CONTAINED IN THIS SECTION 10.1, (II)
ANY OTHER REMEDIES AVAILABLE TO THE PARTIES AT LAW OR IN EQUITY FOR BREACHES OF
PROVISIONS OF THIS AGREEMENT OTHER THAN ARTICLE 4, ARTICLE 5 AND ARTICLE 6
(EXCLUDING SECTION 6.2), AND (III) THE REMEDIES AVAILABLE AT LAW OR IN EQUITY IN
CONNECTION WITH ANY OTHER DOCUMENT DELIVERED BY A PARTY IN CONNECTION WITH THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, FROM AND AFTER CLOSING,
SELLER AND PURCHASER EACH RELEASES, REMISES, AND FOREVER DISCHARGES THE OTHER
AND ITS AFFILIATES AND ALL SUCH PERSONS' STOCKHOLDERS, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ADVISORS AND REPRESENTATIVES FROM ANY AND ALL SUITS,
42
LEGAL OR ADMINISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, LOSSES, COSTS,
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.
(D)
"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 PURCHASER AND SELLER SHALL NOT 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
OPERATING AGREEMENT, ANY LIABILITY, LOSS, COST, EXPENSE, CLAIM, AWARD OR
JUDGMENT TO THE EXTENT AND ONLY TO THE EXTENT INCREASED BY SUCH ACTION.
(E)
THE INDEMNITY TO WHICH EACH PARTY IS ENTITLED UNDER THIS AGREEMENT SHALL
BE FOR THE BENEFIT OF AND EXTEND TO THE INDEMNIFIED PERSONS AFFILIATED WITH SUCH
PARTY AS DESCRIBED ABOVE IN THIS SECTION 10.1.
ANY CLAIM FOR INDEMNITY UNDER
THIS AGREEMENT BY ANY SUCH INDEMNIFIED PERSON OTHER THAN A PARTY MUST BE BROUGHT
AND ADMINISTERED