NOTICE BUT FAILS TO PROSECUTE VIGOROUSLY AND
DILIGENTLY OR SETTLE THE THIRD-PARTY CLAIM, OR IF THE INDEMNITEE DETERMINES IN
GOOD FAITH THAT THERE IS A REASONABLE POSSIBILITY THAT A PROCEEDING MAY AFFECT
IT OTHER THAN AS A RESULT OF MONETARY DAMAGES FOR WHICH IT WOULD BE ENTITLED TO
INDEMNIFICATION HEREUNDER, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO DEFEND, AT
THE SOLE COST AND EXPENSE OF THE INDEMNITOR, SUCH THIRD-PARTY CLAIM TO A FINAL
CONCLUSION OR TO SETTLE SUCH THIRD-PARTY CLAIM AT THE DISCRETION OF THE
INDEMNITEE (WITH THE CONSENT OF THE INDEMNITOR, WHICH CONSENT WILL NOT BE
UNREASONABLY WITHHELD OR DELAYED).
THE INDEMNITOR MAY ELECT TO PARTICIPATE IN
SUCH PROCEEDINGS, NEGOTIATIONS OR DEFENSE AT ANY TIME AT ITS OWN EXPENSE.
THE
INDEMNITEE WILL HAVE FULL CONTROL OF SUCH DEFENSE AND PROCEEDINGS, INCLUDING
(EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE) ANY SETTLEMENT
THEREOF.
8.5
TAX BENEFITS; ADJUSTMENTS TO PURCHASE PRICE.
INDEMNIFICATION
PAYMENTS UNDER THIS ARTICLE 8 SHALL BE PAID BY THE INDEMNITOR WITHOUT REDUCTION
FOR ANY TAX BENEFITS AVAILABLE TO THE INDEMNITEE.
ALL INDEMNIFICATION PAYMENTS
PAID TO BUYERS OR SELLERS PURSUANT TO THIS ARTICLE 8 SHALL BE TREATED BY THE
PARTIES AS AN ADJUSTMENT TO THE PURCHASE PRICE FOR INCOME TAX PURPOSES, UNLESS
OTHERWISE REQUIRED BY APPLICABLE LAWS.
8.6
EXCLUSIVE REMEDY.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, EFFECTIVE AS OF THE CLOSING, IN THE ABSENCE OF FRAUD OR INTENTIONAL
MISREPRESENTATION, EACH PARTY WAIVES, FOR ITSELF AND THE APPLICABLE INDEMNITEE,
ANY RIGHTS AND CLAIMS ANY INDEMNITEE MAY HAVE AGAINST THE APPLICABLE INDEMNITOR,
WHETHER IN LAW OR EQUITY, RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
AFTER THE CLOSING, SUBJECT TO THE FOREGOING, THIS
ARTICLE 8 WILL PROVIDE THE EXCLUSIVE REMEDY FOR ANY BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR OTHER CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
53
9.
TERMINATION AND ABANDONMENT
9.1
METHODS OF TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY
TIME PRIOR TO THE CLOSING AS FOLLOWS:
(A)
BY MUTUAL CONSENT OF THE PARTIES TO THIS AGREEMENT;
(B)
BY EITHER BUYERS, ON THE ONE HAND, OR SELLERS, ON THE OTHER HAND,
UPON FIVE (5) BUSINESS DAYS PRIOR WRITTEN NOTICE IF THE PARTIES SEEKING TO
TERMINATE ARE NOT THEN IN MATERIAL BREACH OF THIS AGREEMENT AND THERE HAS BEEN A
MATERIAL BREACH OF THIS AGREEMENT BY THE OTHER PARTIES WHICH HAS NOT BEEN CURED
PRIOR TO THE EARLIER TO OCCUR OF:
(I) THIRTY (30) DAYS AFTER WRITTEN NOTICE OF
SUCH BREACH HAS BEEN GIVEN BY THE NON-BREACHING PARTIES AND (II) FIVE
(5) BUSINESS DAYS PRIOR TO THE END DATE; OR
(C)
BY EITHER BUYERS, ON THE ONE HAND, OR SELLERS, ON THE OTHER HAND,
UPON WRITTEN NOTICE IF THE CLOSING HAS NOT OCCURRED ON OR BEFORE MAY 1, 2008;
PROVIDED THAT THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS
SECTION 9.1(C) SHALL NOT BE AVAILABLE TO A PARTY WHOSE FAILURE TO FULFILL ANY OF
ITS OBLIGATIONS UNDER THIS AGREEMENT HAS BEEN THE CAUSE OF, OR RESULTS IN, THE
FAILURE OF THE CLOSING