BY THE APPLICABLE PARTY TO THIS AGREEMENT.
NO INDEMNIFIED
PERSON OTHER THAN SELLER AND PURCHASER SHALL HAVE ANY RIGHTS AGAINST EITHER
SELLER OR PURCHASER UNDER THE TERMS OF THIS SECTION 10.1 OR OTHERWISE UNDER THIS
AGREEMENT, EXCEPT AS MAY BE EXERCISED ON ITS BEHALF BY PURCHASER OR SELLER, AS
APPLICABLE, PURSUANT TO THIS SECTION 10.1(E).
EACH OF SELLER AND PURCHASER MAY
ELECT TO EXERCISE OR NOT EXERCISE INDEMNIFICATION RIGHTS UNDER THIS AGREEMENT ON
BEHALF OF THE OTHER INDEMNIFIED PERSONS AFFILIATED WITH IT IN ITS SOLE
DISCRETION AND SHALL HAVE NO LIABILITY TO ANY SUCH OTHER INDEMNIFIED PERSON FOR
ANY ACTION OR INACTION UNDER THIS AGREEMENT.
(F)
FOR THE SOLE PURPOSES OF THE INDEMNITIES SET FORTH IN THIS SECTION 10.1,
IN DETERMINING A BREACH OR INACCURACY OF ANY PARTY'S REPRESENTATIONS OR
WARRANTIES AND IN CALCULATING THE AMOUNT OF DAMAGES INCURRED, ARISING OUT OF OR
RELATING TO ANY SUCH BREACH OR INACCURACY OF A REPRESENTATION OR WARRANTY, ANY
REFERENCES TO "MATERIAL ADVERSE EFFECT" OR OTHER MATERIALITY QUALIFICATIONS (OR
CORRELATIVE TERMS) SHALL BE DISREGARDED.
Section 10.2
Indemnification Actions.
All claims for indemnification
under Section 10.1 shall be asserted and resolved as follows:
(A)
FOR PURPOSES OF THIS AGREEMENT, THE TERM "INDEMNIFYING PERSON" WHEN USED
IN CONNECTION WITH PARTICULAR DAMAGES SHALL MEAN THE PERSON HAVING AN OBLIGATION
TO
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INDEMNIFY ANOTHER PERSON OR PERSONS WITH RESPECT TO SUCH DAMAGES PURSUANT TO
THIS AGREEMENT, AND THE TERM "INDEMNIFIED PERSON" WHEN USED IN CONNECTION WITH
PARTICULAR DAMAGES SHALL MEAN A PERSON HAVING THE RIGHT TO BE INDEMNIFIED WITH
RESPECT TO SUCH DAMAGES PURSUANT TO THIS AGREEMENT.
(B)
TO MAKE CLAIM FOR INDEMNIFICATION UNDER SECTION 10.1, AN INDEMNIFIED
PERSON SHALL NOTIFY THE INDEMNIFYING PERSON OF ITS CLAIM, INCLUDING THE SPECIFIC
DETAILS OF AND SPECIFIC BASIS UNDER THIS AGREEMENT FOR ITS CLAIM (THE "CLAIM
NOTICE").
IN THE EVENT THAT THE CLAIM FOR INDEMNIFICATION IS BASED UPON A CLAIM
BY A THIRD PERSON AGAINST THE INDEMNIFIED PERSON (A "CLAIM"), THE INDEMNIFIED
PERSON SHALL PROVIDE ITS CLAIM NOTICE PROMPTLY AFTER THE INDEMNIFIED PERSON HAS
ACTUAL KNOWLEDGE OF THE CLAIM AND SHALL ENCLOSE A COPY OF ALL PAPERS (IF
ANY) SERVED WITH RESPECT TO THE CLAIM; PROVIDED THAT THE FAILURE OF ANY
INDEMNIFIED PERSON TO GIVE NOTICE OF A CLAIM AS PROVIDED IN THIS SECTION 10.2
SHALL NOT RELIEVE THE INDEMNIFYING PERSON OF ITS OBLIGATIONS UNDER SECTION 10.1
EXCEPT TO THE EXTENT (AND ONLY TO THE EXTENT OF SUCH INCREMENTAL DAMAGES
INCURRED) SUCH FAILURE RESULTS IN INSUFFICIENT TIME BEING AVAILABLE TO PERMIT
THE INDEMNIFYING PERSON TO EFFECTIVELY DEFEND AGAINST THE CLAIM OR OTHERWISE
PREJUDICES THE INDEMNIFYING PERSON'S ABILITY TO DEFEND AGAINST THE CLAIM.
IN
THE EVENT THAT THE CLAIM FOR INDEMNIFICATION IS BASED UPON AN INACCURACY OR
BREACH OF A REPRESENTATION, WARRANTY, COVENANT, OR AGREEMENT, THE CLAIM NOTICE
SHALL SPECIFY THE REPRESENTATION, WARRANTY, COVENANT, OR AGREEMENT THAT WAS
INACCURATE OR BREACHED.
(C)
IN THE CASE OF A CLAIM FOR INDEMNIFICATION BASED UPON A CLAIM, THE
INDEMNIFYING PERSON SHALL HAVE THIRTY (30) DAYS FROM ITS RECEIPT OF THE CLAIM
NOTICE TO