5.6(B), AND
(2)
EXCEPT SECTION 5.9(A), CLAUSES (A), (E) AND
(F) OF SECTION 5.10, SECTION 5.15(A), SECTION 5.16, SECTION 5.17(B) AND THE
FIRST SENTENCE OF SECTION 5.17(D), PROVIDED THAT SELLER'S FAILURE TO LIST AN
ITEM ON THE DISCLOSURE SCHEDULE, WHEN LISTING IS REQUIRED PURSUANT TO SUCH
PROVISIONS (TAKING INTO ACCOUNT THE TERM "MATERIAL" OR "MATERIAL ADVERSE EFFECT"
OR SIMILAR PHRASES), SHALL NOT PREVENT OTHER REPRESENTATIONS AND WARRANTIES MADE
BY SELLER WITH RESPECT TO SUCH ITEM FROM APPLYING TO ALL SUCH ITEMS THAT SHOULD
HAVE BEEN LISTED PURSUANT TO SUCH PROVISIONS (TAKING INTO ACCOUNT THE TERM
"MATERIAL" OR "MATERIAL ADVERSE EFFECT" OR SIMILAR PHRASES)
and in the certificate to be delivered pursuant to Section 3.3(a) of this
Agreement shall be read without regard and without giving effect to the term
"material" or "material adverse effect" or similar phrases contained in such
representation or warranty which has the effect of making such representation
and warranty less restrictive (as if such word(s) were deleted from such
representation and warranty).
(B)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, THE FOLLOWING LIMITATIONS SHALL APPLY WITH REFERENCE TO ANY
INDEMNIFICATION CLAIM AGAINST SELLER UNDER SECTIONS 13.2(A) OR 11.3(C)(3) WITH
RESPECT TO AN ALLEGED BREACH OF ANY REPRESENTATIONS OR WARRANTIES:
(1)
NO INDEMNIFICATION CLAIM SHALL BE BROUGHT
AGAINST SELLER UNLESS BUYER, AT ANY TIME PRIOR TO THE APPLICABLE SURVIVAL DATE,
GIVES SELLER WRITTEN NOTICE, WITH REASONABLE SPECIFICITY, OF THE EXISTENCE
52
OF ANY SUCH INDEMNIFICATION CLAIM.
SUBJECT TO THE PROCEDURES WITH RESPECT TO
CLAIMS UNDER SECTION 13.3 HEREOF WHICH SHALL IN ALL EVENTS GOVERN THIRD PARTY
CLAIMS (OR SECTION 11.3(J) IN THE CASE OF TAXES), IF SUCH WRITTEN NOTICE (OR AN
AMENDED NOTICE) STATES THE AMOUNT OF BUYER DAMAGES CLAIMED AND SELLER NOTIFIES
BUYER THAT SELLER DOES NOT DISPUTE THE CLAIM DESCRIBED IN SUCH NOTICE OR FAILS
TO NOTIFY BUYER WITHIN 60 DAYS AFTER RECEIPT OF SUCH NOTICE BY SELLER WHETHER
SELLER DISPUTES THE CLAIM DESCRIBED IN SUCH NOTICE, SELLER SHALL BE RESPONSIBLE
FOR THE PAYMENT OF SUCH BUYER DAMAGES TO THE BUYER PARTY.
IF SELLER HAS TIMELY
DISPUTED SELLER'S LIABILITY WITH RESPECT TO SUCH CLAIM BY DELIVERY OF NOTICE IN
ACCORDANCE WITH THIS SECTION, BUYER AND SELLER WILL PROCEED IN GOOD FAITH TO
NEGOTIATE A RESOLUTION OF SUCH DISPUTE.
ANY WRITTEN NOTICE DELIVERED BY SELLER
TO BUYER FOR PURPOSES OF DISPUTING A CLAIM FOR BUYER DAMAGES SHALL, TO THE
EXTENT PRACTICABLE, PROVIDE AN EXPLANATION WITH REASONABLE SPECIFICITY FOR ANY
OBJECTION TO THE MATTERS SET FORTH IN BUYER'S NOTICE AND THE PORTION OF THE
CLAIM (IF LESS THAN ALL) WHICH IS THE SUBJECT OF THE DISPUTE NOTICE.
(2)
NO INDEMNIFICATION SHALL BE MADE UNDER
SECTIONS 13.2(A)(I) OR 11.3(C)(3) BY SELLER (I) FOR ANY INDIVIDUAL ITEM OR GROUP
OF SUBSTANTIALLY SIMILAR ITEMS WHERE THE LOSS OR TAX RELATING THERETO IS LESS
THAN $200,000 (THE "BASKET") AND SUCH ITEMS SHALL NOT BE AGGREGATED FOR PURPOSES
OF DETERMINING WHETHER THE THRESHOLD AMOUNT HAS BEEN EXCEEDED PURSUANT TO
SECTION 13.2(B)(2)(II), AND (II) UNLESS AND UNTIL THE AGGREGATE AMOUNT OF THE