HEREBY (AND ANY EXAMINATION OR INVESTIGATION BY OR ON
BEHALF OF ANY PARTY HERETO) UNTIL THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE
(THE "CUT-OFF DATE").
NOTWITHSTANDING THE FOREGOING, (I) ANY OBLIGATION IN
RESPECT OF A CLAIM FOR INDEMNITY AS A RESULT OF A BREACH OF ANY REPRESENTATION
OR WARRANTY OF ANY PARTY THAT IS ASSERTED IN WRITING WITH REASONABLE SPECIFICITY
AS TO THE NATURE AND, IF THEN DETERMINABLE, AMOUNT OF THE CLAIM PRIOR TO THE
CUT-OFF DATE SHALL SURVIVE PAST SUCH DATE UNTIL FINALLY RESOLVED OR SETTLED, AND
(II) ANY OBLIGATION IN RESPECT OF A CLAIM BY A PARTY FOR INDEMNITY AS A RESULT
OF A BREACH OF A REPRESENTATION OR WARRANTY ARISING OR RESULTING FROM ACTUAL
FRAUD ON THE PART OF THE OTHER PARTY (EITHER, A "FRAUD CLAIM") SHALL SURVIVE
UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS (EXCEPT FOR CLAIMS
IN RESPECT THEREOF PENDING AT SUCH TIME, WHICH SHALL SURVIVE UNTIL FINALLY
RESOLVED OR SETTLED).
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(B)
NO ACTION MAY BE COMMENCED WITH RESPECT TO
ANY REPRESENTATION OR WARRANTY HEREUNDER, OR IN ANY WRITING DELIVERED PURSUANT
HERETO, UNLESS WRITTEN NOTICE, SETTING FORTH IN REASONABLE DETAIL THE CLAIMED
BREACH THEREOF, SHALL BE DELIVERED PURSUANT TO SECTION 7.6 TO THE PARTY OR
PARTIES AGAINST WHOM LIABILITY FOR THE CLAIMED BREACH IS CHARGED ON OR BEFORE
THE TERMINATION OF THE SURVIVAL PERIOD SPECIFIED IN SECTION 6.1(A) FOR SUCH
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT; PROVIDED, THAT THE FOREGOING
SHALL NOT APPLY TO SELLER'S OBLIGATIONS PURSUANT TO SECTION 1.2.
6.2
INDEMNIFICATION BY SELLER.
SUBJECT TO THE
PROVISIONS OF THIS ARTICLE VI, SELLER COVENANTS AND AGREES TO DEFEND, INDEMNIFY
AND HOLD HARMLESS BUYER AND EACH PERSON WHO CONTROLS BUYER FROM AND AGAINST AND
WITH RESPECT TO ANY DAMAGES DIRECTLY OR INDIRECTLY, RELATING TO, RESULTING FROM
OR ARISING OUT OF (I) ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR
WARRANTY BY SELLER UNDER THIS AGREEMENT, (II) ANY BREACH, DEFAULT OR
NONFULFILLMENT OF ANY COVENANT, AGREEMENT OR OTHER OBLIGATION OF SELLER UNDER
THIS AGREEMENT, OR (III) ANY EXCLUDED LIABILITIES.
6.3
INDEMNIFICATION BY BUYER.
BUYER COVENANTS
AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ANY
AND ALL DAMAGES ARISING OUT OF OR RESULTING FROM (I) ANY INACCURACY IN OR BREACH
OF ANY REPRESENTATION OR WARRANTY MADE BY BUYER IN THIS AGREEMENT, (II) THE
FAILURE OF BUYER TO PERFORM OR OBSERVE ANY COVENANT, AGREEMENT OR PROVISION TO
BE PERFORMED OR OBSERVED BY BUYER PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO THE ASSUMED LIABILITIES, (III) THE OPERATION OR BUSINESS OF BUYER OR
THE BUSINESS AFTER THE EFFECTIVE DATE OR ANY CLAIMS, ACTIONS OR LITIGATION
CONCERNING THE SAME, OR (IV) VIOLATION OF THE FEDERAL WARN ACT OR THE CALIFORNIA
WARN ACT, RESULTING FROM THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE
OPERATION OF THE BUSINESS AFTER THE EFFECTIVE DATE.
6.4
CLAIMS.
(A)
IF ANY PARTY ENTITLED TO BE INDEMNIFIED
PURSUANT TO SECTION 6.2 OR SECTION 6.3 (AN "INDEMNIFIED PARTY") RECEIVES NOTICE
OF THE ASSERTION BY ANY THIRD PARTY OF ANY CLAIM