WILL NOT CONSENT TO THE ENTRY OF ANY JUDGMENT ON OR ENTER
INTO ANY SETTLEMENT WITH RESPECT TO THE THIRD-PARTY CLAIM WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNIFIED PARTY (NOT TO BE UNREASONABLY WITHHELD).
(D)
IN THE EVENT ANY OF THE CONDITIONS IN SECTION 8.4(B) ABOVE IS OR
BECOMES UNSATISFIED, HOWEVER, (A) THE INDEMNIFIED PARTY MAY DEFEND AGAINST, AND
CONSENT TO THE ENTRY OF ANY JUDGMENT ON OR ENTER INTO ANY SETTLEMENT WITH
RESPECT TO, THE THIRD-PARTY CLAIM IN ANY MANNER HIS, HER, OR IT MAY REASONABLY
DEEM APPROPRIATE (AND THE INDEMNIFIED PARTY NEED NOT CONSULT WITH, OR OBTAIN ANY
CONSENT FROM, ANY INDEMNIFYING PARTY IN CONNECTION THEREWITH), (B) THE
INDEMNIFYING PARTIES WILL REIMBURSE THE INDEMNIFIED PARTY PROMPTLY AND
PERIODICALLY FOR THE COSTS OF DEFENDING AGAINST THE THIRD-PARTY CLAIM (INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES), AND (C) THE INDEMNIFYING PARTIES WILL
REMAIN RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES THE INDEMNIFIED PARTY MAY SUFFER
RESULTING FROM, ARISING OUT OF, RELATING TO, IN THE NATURE OF, OR CAUSED BY THE
THIRD-PARTY CLAIM TO THE FULLEST EXTENT PROVIDED IN; PROVIDED, HOWEVER, THAT,
EXCEPT WITH THE CONSENT OF THE MEMBER AGENT, NO SETTLEMENT OF ANY SUCH
THIRD-PARTY CLAIM WITH THIRD-PARTY CLAIMANTS SHALL BE DETERMINATIVE OF (I) THE
AMOUNT OF LOSSES RELATING TO SUCH MATTER OR (II) WHETHER BUYER IS ENTITLED TO
INDEMNIFICATION PURSUANT TO THIS SECTION 8.
39
8.5
DETERMINATION OF ADVERSE CONSEQUENCES.
ALL INDEMNIFICATION
PAYMENTS UNDER THIS SECTION 8 SHALL BE DEEMED ADJUSTMENTS TO THE PURCHASE PRICE.
8.6
RELEASE.
EACH SELLER HEREBY AGREES THAT HE, SHE, OR IT WILL NOT
MAKE ANY CLAIM FOR INDEMNIFICATION AGAINST TARGET ARISING OUT OF FACTS OCCURRING
PRIOR TO THE CLOSING BY REASON OF THE FACT THAT HE, SHE, OR IT WAS A MANAGER,
OFFICER, EMPLOYEE, OR AGENT OF TARGET OR WAS SERVING AT THE REQUEST OF TARGET AS
A PARTNER, TRUSTEE, DIRECTOR, MANAGER, OFFICER, EMPLOYEE, OR AGENT OF ANOTHER
ENTITY (WHETHER SUCH CLAIM IS FOR JUDGMENTS, DAMAGES, PENALTIES, FINES, COSTS,
AMOUNTS PAID IN SETTLEMENT, LOSSES, EXPENSES, OR OTHERWISE AND WHETHER SUCH
CLAIM IS PURSUANT TO ANY STATUTE, CHARTER DOCUMENT, BYLAW, AGREEMENT, OR
OTHERWISE).
8.7
PURCHASE PRICE ADJUSTMENT.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, SELLERS SHALL NOT BE OBLIGATED TO INDEMNIFY BUYER AGAINST ANY
LOSSES AS A RESULT OF, OR BASED UPON OR ARISING FROM, ANY CLAIM OR LIABILITY TO
THE EXTENT SUCH CLAIM OR LIABILITY IS TAKEN INTO ACCOUNT THROUGH THE APPLICATION
OF SECTION 2.6.
10.
TERMINATION.
10.1
TERMINATION OF AGREEMENT.
THIS AGREEMENT MAY BE TERMINATED AS
FOLLOWS:
(A)
BUYER AND MEMBER AGENT MAY TERMINATE THIS AGREEMENT BY MUTUAL
WRITTEN CONSENT AT ANY TIME PRIOR TO THE CLOSING.
(B)
BUYER MAY TERMINATE THIS AGREEMENT AT ANY TIME PRIOR TO THE
CLOSING IF THERE HAS BEEN A MATERIAL ADVERSE EFFECT THAT EITHER (I) IS INCAPABLE
OF BEING CURED OR (II) IS CAPABLE OF BEING CURED BUT WHICH SELLERS FAIL TO CURE
WITHIN 15 DAYS AFTER MEMBER AGENT RECEIVES WRITTEN NOTICE THEREOF.
(C)
MEMBER AGENT MAY TERMINATE THIS AGREEMENT AT ANY TIME PRIOR TO THE
CLOSING IF THERE