OTHER
REASON, THE DEPOSIT SHALL BE PROMPTLY RETURNED TO BUYER BY SELLER.
SECTION 8.3.
AMENDMENT.
THIS AGREEMENT MAY NOT BE AMENDED EXCEPT BY
AN INSTRUMENT IN WRITING SIGNED BY OR ON BEHALF OF ALL THE PARTIES HERETO.
SECTION 8.4.
WAIVER.
SELLER ON THE ONE HAND, OR BUYER, ON THE OTHER,
MAY:
(I) WAIVE ANY INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES OF THE
OTHER CONTAINED HEREIN OR IN ANY DOCUMENT, CERTIFICATE, OR WRITING DELIVERED
PURSUANT HERETO, OR (II) WAIVE COMPLIANCE BY THE OTHER WITH ANY OF THE OTHER'S
AGREEMENTS OR FULFILLMENT OF ANY CONDITIONS TO ITS OWN OBLIGATIONS CONTAINED
HEREIN.
ANY AGREEMENT ON THE PART OF A PARTY HERETO TO ANY SUCH WAIVER SHALL BE
VALID ONLY IF SET FORTH IN AN INSTRUMENT IN WRITING SIGNED BY OR ON BEHALF OF
SUCH PARTY.
NO FAILURE OR DELAY BY A PARTY HERETO IN EXERCISING ANY RIGHT,
POWER, OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER, OR PRIVILEGE.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
SECTION 9.1.
SURVIVAL.
(A)
EACH REPRESENTATION AND WARRANTY OF THE PARTIES HERETO CONTAINED
IN THIS AGREEMENT SHALL SURVIVE THE CLOSING UNTIL THE FIRST ANNIVERSARY OF THE
CLOSING DATE (SUCH ANNIVERSARY BEING CALLED THE "SURVIVAL DATE").
FROM AND
AFTER A SURVIVAL DATE, NO PARTY HERETO SHALL BE UNDER ANY LIABILITY HEREUNDER
WITH RESPECT TO ANY REPRESENTATION OR WARRANTY, EXCEPT WITH RESPECT TO MATTERS
AS TO WHICH NOTICE HAS BEEN RECEIVED IN ACCORDANCE WITH SECTION 9.1(B).
ALL
COVENANTS OF THE PARTIES HERETO, TO THE EXTENT NOT OTHERWISE FULLY PERFORMED AT
CLOSING, WILL SURVIVE THE CLOSING.
(B)
NO PARTY HERETO SHALL HAVE ANY INDEMNIFICATION OBLIGATION PURSUANT
TO THIS ARTICLE IX OR OTHERWISE IN RESPECT OF ANY REPRESENTATION, WARRANTY OR
COVENANT UNLESS IT SHALL HAVE RECEIVED FROM THE PARTY SEEKING INDEMNIFICATION
WRITTEN NOTICE OF THE EXISTENCE OF THE CLAIM FOR OR IN RESPECT OF WHICH
INDEMNIFICATION IN RESPECT OF SUCH REPRESENTATION, WARRANTY OR COVENANT IS BEING
SOUGHT.
SUCH NOTICE SHALL SET FORTH WITH REASONABLE SPECIFICITY (I) THE BASIS
UNDER THIS AGREEMENT, AND THE FACTS THAT OTHERWISE FORM THE BASIS OF SUCH CLAIM,
(II) THE ESTIMATE OF THE AMOUNT OF SUCH CLAIM (WHICH ESTIMATE SHALL NOT BE
CONCLUSIVE OF THE FINAL AMOUNT OF SUCH CLAIM) AND AN EXPLANATION OF THE
CALCULATION OF SUCH ESTIMATE, INCLUDING A STATEMENT OF ANY SIGNIFICANT
ASSUMPTIONS EMPLOYED THEREIN, AND (III) THE DATE ON AND MANNER IN WHICH THE
PARTY DELIVERING SUCH NOTICE BECAME AWARE OF THE EXISTENCE OF SUCH CLAIM.
SECTION 9.2.
INDEMNIFICATION BY SELLER.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS ARTICLE IX, SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS
BUYER FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS
ASSESSMENTS, LOSSES, DAMAGES, LIABILITIES, JUDGMENTS, SETTLEMENTS, PENALTIES,
COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES), OF ANY
NATURE WHATSOEVER (COLLECTIVELY, "DAMAGES"), ASSERTED AGAINST, RESULTING TO,
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IMPOSED UPON, OR INCURRED BY BUYER, DIRECTLY OR INDIRECTLY,