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(c) If the Indemnifying Party shall fail to undertake any such defense, the Indemnified Party shall have the right to undertake the defense thereof, at the Indemnifying Party’s expense. In the event the Indemnified Party is conducting the defense against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. If the Indemnified Party assumes the defense against any such Third Party Claim and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and shall not settle any such Third Party Claim without the written consent of the Indemnifying Party which consent shall not be unreasonably withheld, (and if unreasonably withheld, the Indemnifying Party shall be liable for any amounts paid by the Indemnified Party to settle such claim which exceeded the amount that would have been paid to settle such claim had the Indemnifying Party reasonably granted such consent), and the Indemnifying Party shall have the right to assume or reassume the defense of such claim or proceeding.

(d) If any amounts for which the Indemnifying Party is responsible are recoverable from a third party, upon indemnification of the Indemnified Party by the Indemnifying Party for such Losses, the Indemnified Party shall assign any rights that it may have to recover such amounts to the Indemnifying Party.

(e) Buyer shall maintain all books, records and other materials of Company which relate to a Third Party Claim and, in the event Seller is the Indemnifying Party under this Section 7.4, Buyer shall make available to Seller all such books, records and materials at Seller’s request.

Section 7.5 Exclusive Remedies . Notwithstanding anything else in this Agreement to the contrary and except as provided in Section 9.8 below, each party’s sole and exclusive remedy following the Closing with respect to any Loss (whether or not arising from Third Party Claims) due to any breach of any representation, warranty, covenant or agreement contained in this Agreement by any party shall be pursuant to, and shall be determined in accordance with this Article VII, and each of Buyer and Seller hereby expressly waives any and all right to pursue any and all other remedies, except with respect to claims for fraud.

Section 7.6 Adjustment to Purchase Price . Any indemnification payment or other post-closing payment made pursuant to this Agreement shall be treated as an adjustment to the Purchase Price for all purposes. No party shall take a position inconsistent with the foregoing on any Tax Return or other document filed with any governmental authority.


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