IF THE INDEMNITOR ELECTS NOT TO ASSUME THE DEFENSE OF AND
INDEMNIFICATION FOR SUCH MATTER, THEN THE INDEMNITEE SHALL PROCEED DILIGENTLY TO
DEFEND SUCH MATTER WITH THE ASSISTANCE OF COUNSEL REASONABLY SATISFACTORY TO THE
INDEMNITOR; PROVIDED, THAT THE INDEMNITEE SHALL NOT SETTLE, ADJUST OR COMPROMISE
SUCH MATTER, OR ADMIT ANY LIABILITY WITH RESPECT TO SUCH MATTER, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE INDEMNITOR, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED.
(E)
SUBROGATION.
TO THE EXTENT THAT THE INDEMNITOR MAKES OR IS
REQUIRED TO MAKE ANY INDEMNIFICATION PAYMENT TO THE INDEMNITEE, THE INDEMNITOR
SHALL BE ENTITLED TO EXERCISE, AND SHALL BE SUBROGATED TO, ANY RIGHTS AND
REMEDIES (INCLUDING RIGHTS OF INDEMNITY, RIGHTS OF CONTRIBUTION AND OTHER RIGHTS
OF RECOVERY) THAT THE INDEMNITEE OR ANY OF THE INDEMNITEE'S AFFILIATES MAY HAVE
AGAINST ANY OTHER PERSON WITH RESPECT TO ANY LOSSES TO WHICH SUCH
INDEMNIFICATION PAYMENT IS DIRECTLY RELATED, SO LONG AS THE INDEMNITEE IS NOT
ADVERSELY AFFECTED THEREBY.
36
(F)
EXCLUSIVE REMEDIES FOLLOWING THE CLOSING DATE.
FOLLOWING THE
CLOSING DATE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE INDEMNIFICATION
PROVISIONS OF THIS SECTION 9.2 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE
INDEMNITEES, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ALL MATTERS ARISING
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE CONTEMPLATED TRANSACTIONS,
INCLUDING, WITHOUT LIMITATION, FOR ANY INACCURACY OR BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT SET FORTH HEREIN (OTHER THAN
CLAIMS OF, AND CAUSES OF ACTION ARISING OUT OF, FRAUD IN THE INDUCEMENT IN
ENTERING INTO THIS AGREEMENT AND THE ANCILLARY DOCUMENTS).
(G)
ENVIRONMENTAL REMEDIES.
NOTWITHSTANDING THE FOREGOING OR ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, BUYER AND ITS SUCCESSORS AND ASSIGNS
UNDERSTAND AND AGREE THAT THE INDEMNIFICATION OBLIGATIONS OF SELLER UNDER THIS
SECTION 9.2 SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER INDEMNITEES
WITH RESPECT TO ANY MATTERS OR CLAIMS ARISING UNDER ENVIRONMENTAL LAWS, AND
BUYER AND ITS SUCCESSORS AND ASSIGNS HEREBY WAIVE, AND UNCONDITIONALLY RELEASE
SELLER FROM, ANY RIGHTS AND REMEDIES THAT BUYER AND ITS SUCCESSORS AND ASSIGNS
MAY OTHERWISE HAVE AGAINST SELLER UNDER ANY ENVIRONMENTAL LAW, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS FOR CONTRIBUTION UNDER CERCLA OR COMMON LAW.
(H)
PURCHASE PRICE ADJUSTMENT.
ANY INDEMNIFICATION PAYMENT PURSUANT
TO THIS SECTION 9.2 SHALL BE TREATED AS AN ADJUSTMENT TO THE PURCHASE PRICE FOR
TAX PURPOSES TO THE EXTENT PERMITTED BY LAW.
(I)
ROFR WAIVER/LENDER APPROVAL. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT OR ANY OF THE ANCILLARY DOCUMENTS, SELLER'S
SOLE OBLIGATION WITH RESPECT TO OBTAINING THE ROFR WAIVER AND THE LENDER
APPROVAL SHALL BE TO, (X) WITH RESPECT TO OBTAINING THE ROFR WAIVER, EXECUTE AND
DELIVER THE SALE NOTICE (AS DEFINED IN THE SHAREHOLDERS' AGREEMENT) TO RGI,
WHICH OBLIGATION THE PARTIES HERETO AGREE HAS BEEN SATISFIED, AND (Y) WITH
RESPECT TO OBTAINING THE LENDER APPROVAL, (1) DELIVER TO LENDER ANY INFORMATION
OR MATERIAL (A) PREPARED OR PROCURED BY BUYER AND (B) REGARDING SELLER OR THE
CONTEMPLATED TRANSACTION THAT IS IN SELLER'S POSSESSION, EACH AS REASONABLY
REQUESTED BY LENDER IN CONNECTION