FairPoint Communications 2005 Annual Report Download - page 199

(c) In the case of a Third Party Claim, if the Indemnifying Party does not timely notify the Indemnified Party, and if the Indemnifying Party is
the Shareholders this notice shall be in accordance with Section 1.5, or elects not to defend the Indemnified Party, or, having assumed the defense and
settlement of such Third Party Claim, fails reasonably to contest such Third Party Claim in good faith, then the Indemnified Party, without waiving its right
to indemnification, shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim. The Indemnified Party shall
have full control of such defense and proceedings. The Indemnifying Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the
Indemnified Party in contesting any Third Party Claim and may participate in, but not control, any defense or settlement controlled by the Indemnified Party,
in which case the Indemnifying Party shall bear the cost and expenses relating to such participation.
(d) In the case of a claim that is not a Third Party Claim, if the Indemnifying Party does not timely dispute its potential liability, and if the
Indemnifying Party is the Shareholders this notice shall be in accordance with Section 1.5, then the claim specified by the Indemnified Party in the
Indemnification Notice shall be deemed a liability of the Indemnifying Party hereunder. If the Indemnifying Party does timely dispute such claim, then the
claim shall be resolved by negotiation of the parties or pursuant to Section 12.11 hereof.
(e) In the event of any claim for indemnity hereunder, Buyer agrees to give the Shareholders and their respective representatives reasonable
access to the books and records and employees of SICC in connection with the matters for which indemnification is sought to the extent such Shareholders
reasonably deem necessary in connection with their rights and obligations hereunder.
(f) For purposes of clarification, if in the event of a claim for indemnification for Tax related Losses there exists a conflict between the
provisions of this Section 10.3 and Section 7.1(e), the provisions of Section 7.1(e) shall control.
10.4 Exclusive Remedy. After the Closing, and except as set forth below, the indemnities set forth in this Article 10 shall be the exclusive
remedies of the Buyer and the Shareholders and their respective officers, directors, employees, agents, Affiliates, legal representatives, successors and
permitted assigns. The foregoing limitation shall not apply with respect to any claim based on intentional fraud or the break-up fee set forth in Section 11.3,
and shall also not preclude any party from seeking any equitable remedy provided for in this Agreement.
10.5 Determination of Losses. The Parties shall make appropriate adjustments for tax benefits (or liabilities) and proceeds received from
insurance coverage in determining the amount of any claims for purposes of this Article 10. This Section 10.5 shall not require any party to delay the pursuit
of indemnification under this Article 10 until resolution of claims against a party’s insurance, provided that no such indemnification shall be finalized without
adequate provision for adjustment with respect to such insurance proceeds.
10.6 No Punitive Damages. Anything herein to the contrary notwithstanding, no party shall be liable under this Agreement for any punitive or
exemplary damages.
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