OF
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THE INDEMNIFIED PERSON, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED, SETTLE ANY CLAIM OR CONSENT TO THE ENTRY OF ANY JUDGMENT
WITH RESPECT THERETO THAT (I) DOES NOT RESULT IN A FINAL RESOLUTION OF THE
INDEMNIFIED PERSON'S LIABILITY WITH RESPECT TO THE CLAIM (INCLUDING, IN THE CASE
OF A SETTLEMENT, AN UNCONDITIONAL WRITTEN RELEASE OF THE INDEMNIFIED PERSON FROM
ALL LIABILITY IN RESPECT OF SUCH CLAIM) OR (II) MAY MATERIALLY AND ADVERSELY
AFFECT THE INDEMNIFIED PERSON (OTHER THAN AS A RESULT OF MONEY DAMAGES COVERED
BY THE INDEMNITY).
(E)
IF THE INDEMNIFYING PERSON DOES NOT AGREE TO INDEMNIFY THE INDEMNIFIED
PERSON WITHIN THE THIRTY (30) DAY PERIOD SPECIFIED IN SECTION 11.2(C), FAILS TO
GIVE NOTICE TO THE INDEMNIFIED PARTY WITHIN SUCH THIRTY (30) DAY PERIOD
REGARDING ITS ELECTION, OR IF THE INDEMNIFYING PARTY AGREES TO INDEMNIFY, BUT
FAILS TO DILIGENTLY DEFEND OR SETTLE THE CLAIM, THEN THE INDEMNIFIED PERSON
SHALL HAVE THE RIGHT TO DEFEND AGAINST THE CLAIM (AT THE SOLE COST AND EXPENSE
OF THE INDEMNIFYING PERSON, IF THE INDEMNIFIED PERSON IS ENTITLED TO
INDEMNIFICATION HEREUNDER), WITH COUNSEL OF THE INDEMNIFIED PERSON'S CHOOSING;
PROVIDED, HOWEVER, THAT THE INDEMNIFIED PARTY SHALL MAKE NO SETTLEMENT,
COMPROMISE, ADMISSION, OR ACKNOWLEDGMENT THAT WOULD GIVE RISE TO LIABILITY ON
THE PART OF ANY INDEMNIFYING PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF SUCH
INDEMNIFYING PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED.
(F)
IN THE CASE OF A CLAIM FOR INDEMNIFICATION NOT BASED UPON A CLAIM, THE
INDEMNIFYING PERSON SHALL HAVE THIRTY (30) DAYS FROM ITS RECEIPT OF THE CLAIM
NOTICE TO (I) CURE THE DAMAGES COMPLAINED OF, (II) AGREE TO INDEMNIFY THE
INDEMNIFIED PERSON FOR SUCH DAMAGES, OR (III) DISPUTE THE CLAIM FOR SUCH
DAMAGES.
IF SUCH INDEMNIFYING PERSON DOES NOT RESPOND TO SUCH CLAIM NOTICE
WITHIN SUCH THIRTY (30) DAY PERIOD, SUCH PERSON WILL BE DEEMED TO DISPUTE THE
CLAIM FOR DAMAGES.
SECTION 11.3
LIMITATION ON ACTIONS.
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE PARTIES IN ARTICLE 4, ARTICLE 5
AND ARTICLE 6 AND THE COVENANTS AND AGREEMENTS OF THE PARTIES IN ARTICLE 7, AND
THE CORRESPONDING REPRESENTATIONS AND WARRANTIES GIVEN IN THE CERTIFICATES
DELIVERED AT THE CLOSING PURSUANT TO SECTION 9.2(B), SECTION 9.2(C) OR SECTION
9.3(B), AS APPLICABLE, SHALL SURVIVE THE CLOSING FOR A PERIOD OF ONE (1) YEAR,
EXCEPT THAT, (I) WITH RESPECT TO ANY TAXABLE PERIOD, THE REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED IN SECTION 4.7 AND SECTION 7.6
SHALL SURVIVE UNTIL THE APPLICABLE STATUTE OF LIMITATIONS CLOSES SUCH TAXABLE
PERIOD AND (II) THE PROVISIONS OF SECTION 4.4, SECTION 5.5 AND THE LAST SENTENCE
IN SECTION 7.4 SHALL SURVIVE THE CLOSING WITHOUT TIME LIMIT.
THE REMAINDER OF
THIS AGREEMENT SHALL SURVIVE THE CLOSING WITHOUT TIME LIMIT, EXCEPT AS PROVIDED
IN SECTION 11.3(B) BELOW.
REPRESENTATIONS, WARRANTIES, COVENANTS, AND
AGREEMENTS SHALL BE OF NO FURTHER FORCE AND EFFECT AFTER THE DATE OF THEIR
EXPIRATION (IF ANY), PROVIDED THAT THERE SHALL BE NO TERMINATION OF ANY BONA
FIDE CLAIM ASSERTED PURSUANT TO THIS AGREEMENT