ADVISORS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY HERETO OR ITS AFFILIATES OR
THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES, EXCEPT FOR THE OBLIGATIONS OF
THE PARTIES HERETO CONTAINED IN THIS SECTION 6.2 AND IN SECTIONS 8.2 (EXPENSES),
8.3 (PUBLIC DISCLOSURE), 8.9 (NOTICES), 8.10 (GOVERNING LAW) AND 8.11 (DISPUTE
RESOLUTION) HEREOF, AND EXCEPT THAT NOTHING HEREIN WILL RELIEVE ANY PARTY FROM
LIABILITY FOR ANY BREACH OF THIS AGREEMENT PRIOR TO SUCH TERMINATION.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS.
EXCEPT AS SET FORTH IN THIS SECTION 7.1, THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE
CLOSING AND EXPIRE ON THE FIRST ANNIVERSARY OF THE CLOSING DATE.
THE
REPRESENTATIONS AND WARRANTIES INCLUDED OR PROVIDED FOR IN SECTIONS 3.1.1 AND
3.2.1 (ORGANIZATION, GOOD STANDING AND QUALIFICATION), 3.1.4 AND 3.2.4
(CORPORATE AUTHORITY AND APPROVAL), 3.1.7 AND 3.2.7 (BROKERS AND FINDERS), AND
3.2.8 (TITLE TO EARTHLINK ASSETS) SHALL HAVE NO EXPIRATION DATE.
IN THE EVENT
THAT ANY CLAIM NOTICE OR ANY OTHER WRITTEN NOTICE OF A CLAIM SHALL BE GIVEN
HEREUNDER WITHIN THE APPLICABLE SURVIVAL PERIOD, THE REPRESENTATIONS AND
WARRANTIES THAT ARE THE SUBJECT OF SUCH INDEMNITY CLAIM SHALL SURVIVE UNTIL SUCH
CLAIM IS FINALLY RESOLVED BUT ONLY WITH RESPECT TO SUCH CLAIM AND ANY DIRECTLY
RELATED MATTERS.
THE COVENANTS AND OTHER AGREEMENTS CONTAINED IN THIS AGREEMENT
SHALL SURVIVE THE CLOSING UNTIL THE DATE OR DATES SPECIFIED THEREIN OR THE
EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS (INCLUDING ANY WAIVERS OR
EXTENSIONS THEREOF) WITH RESPECT TO SUCH MATTERS, WHICHEVER IS LATER.
7.2
INDEMNIFICATION BY EARTHLINK.
7.2.1
INDEMNIFICATION.
FOR THE PERIOD
COMMENCING ON THE CLOSING DATE AND ENDING UPON THE EXPIRATION OF THE APPLICABLE
PERIODS SPECIFIED IN SECTION 7.1, EARTHLINK SHALL, SUBJECT TO THE LIMITATIONS
SET FORTH IN SECTION 7.1 AND THIS SECTION 7.2, INDEMNIFY, DEFEND AND HOLD
HARMLESS OPERATING COMPANY, SKT AND SKTI, AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, SHAREHOLDERS AND AGENTS (THE "SKT/OPERATING COMPANY
INDEMNIFIED PARTIES") AGAINST AND IN RESPECT OF ALL LOSSES, DAMAGES (EXCEPT AS
SET FORTH IN SECTION 7.7), LIABILITIES, COSTS
24
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES INCURRED IN
INVESTIGATING, PREPARING OR DEFENDING ANY CLAIMS COVERED HEREBY) (COLLECTIVELY,
"LOSSES") SUSTAINED OR INCURRED ARISING OUT OF, IN CONNECTION WITH OR RELATING
TO ANY BREACHES OF ANY OF EARTHLINK'S REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT (DISREGARDING FOR PURPOSES OF THIS ARTICLE VII ALL
QUALIFICATIONS AND EXCEPTIONS CONTAINED THEREIN RELATING TO MATERIALITY
(INCLUDING MATERIAL ADVERSE EFFECT)); PROVIDED THAT NO INDIVIDUAL LOSS OR SERIES
OF RELATED LOSSES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO ANY BREACHES
OF ANY OF EARTHLINK'S REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT
SHALL BE DEEMED TO BE A LOSS UNTIL THE AMOUNT OF SUCH LOSS OR SERIES OF RELATED
LOSSES EXCEEDS ONE HUNDRED THOUSAND DOLLARS ($100,000) AND THEN ONLY THE AMOUNT
IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS ($100,000) SHALL BE DEEMED A LOSS.
THE FOREGOING LIMITATION SHALL NOT APPLY TO ANY LOSSES RESULTING FROM A BREACH
OF THE REPRESENTATIONS AND WARRANTIES