OF ANY COVENANT OF SELLER
OR PARENT SET FORTH IN THIS AGREEMENT; (IV) ANY DEBTS, CLAIMS, LIABILITIES OR
LAWSUITS WHICH RELATE TO THE USE OR OPERATION OF THE BUSINESS OR THE PURCHASED
ASSETS PRIOR TO THE EFFECTIVE DATE, INCLUDING THE RETAINED LIABILITIES, AND (V)
ANY FAILURE TO OBTAIN THE APPROPRIATE RELEASE OR TERMINATION OF ANY LIENS AS
CONTEMPLATED IN SECTION 3.2(E)(1) OR ANY ADVERSE ACTION BEING TAKEN BY ANY
SECURED PARTY HAVING A CLAIM THROUGH OR UNDER SELLER OR PARENT IN RESPECT TO
SUCH LIENS AT ANY TIME.
7.3
NECESSITY OF RELIANCE.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN
TO THE CONTRARY, THE PARTIES AGREE AND ACKNOWLEDGE THAT NO DUTY TO INDEMNIFY
SHALL ARISE BY VIRTUE OF:
(A)
A BREACH OF SECTION 7.1(A) BY BUYER AND/OR OWNER IF SELLER OR
PARENT HAD KNOWLEDGE OF THE MATTER WHICH OTHERWISE GAVE RISE TO THE DUTY TO
INDEMNIFY; AND/OR
(B)
A BREACH OF SECTION 7.2(II) BY SELLER OR PARENT IF OWNER HAD
KNOWLEDGE OF THE MATTER WHICH OTHERWISE GAVE RISE TO THE DUTY TO INDEMNIFY.
7.4
INDEMNIFICATION PROCEDURE.
(A)
NOTIFICATION OF CLAIM.
ANY PERSON SEEKING INDEMNIFICATION UNDER
SECTION 7.1 OR SECTION 7.2 (THE "INDEMNIFIED PARTY") SHALL PROMPTLY NOTIFY THE
OTHER PARTY OR PARTIES FROM WHOM INDEMNIFICATION IS BEING SOUGHT (THE
"INDEMNIFYING PARTY") IN WRITING OF ANY CLAIM OR DEMAND FOR WHICH THE
INDEMNIFIED PARTY IS ASSERTING AN INDEMNIFICATION CLAIM.
SUCH NOTICE SHALL BE
ACCOMPANIED BY A REASONABLY FULL DESCRIPTION OF THE BASIS FOR SUCH CLAIM OR
DEMAND, A REFERENCE TO THE PROVISIONS OF THIS AGREEMENT UNDER WHICH LIABILITY IS
ASSERTED AND A STATEMENT AS TO THE KNOWN AMOUNT OF THE LOSS OR DAMAGE (OR, IF
NOT KNOWN, AN ESTIMATE THEREOF IF A REASONABLE BASIS EXIST FOR ESTIMATING THE
SAME); PROVIDED, HOWEVER, THAT NO DELAY ON THE PART OF THE INDEMNIFIED PARTY IN
NOTIFYING ANY INDEMNIFYING PARTY SHALL RELIEVE THE INDEMNIFYING PARTY FOR ANY
LIABILITY OR OBLIGATION HEREUNDER UNLESS (AND THEN SOLELY TO THE EXTENT) THE
INDEMNIFYING PARTY IS PREJUDICED BY THE DELAY.
(B)
DEFENSE OF LEGAL ACTIONS.
IF THE CLAIM WHICH IS THE SUBJECT OF
ANY NOTIFICATION GIVEN PURSUANT TO SECTION 7.4(A) IS BASED ON A LEGAL ACTION
FILED BY ANY THIRD PERSON (A "THIRD PARTY CLAIM"), THE INDEMNIFYING PARTY SHALL
HAVE THE RIGHT TO TAKE OVER THE DEFENSE THEREOF, BUT THE INDEMNIFYING PARTY
SHALL NOTIFY THE INDEMNIFIED PARTY WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT
OF A CLAIM NOTICE PURSUANT TO SECTION 7.4(A) AS TO WHETHER OR NOT IT WILL ASSUME
THE DEFENSE AGAINST SUCH THIRD PARTY CLAIM.
(1)
IF THE INDEMNIFYING PARTY ELECTS TO TAKE OVER THE DEFENSE OF SUCH
THIRD PARTY CLAIM, THEN: (AA) IT SHALL KEEP THE INDEMNIFIED PARTY INFORMED AS TO
THE STATUS THEREOF AND PROMPTLY PROVIDE COPIES OF PLEADINGS AND OTHER FILINGS IN
THE CASE; (BB) THE INDEMNIFYING PARTY SHALL HAVE THE SOLE RIGHT TO CONTEST,
SETTLE OR OTHERWISE DISPOSE OF SUCH THIRD PARTY CLAIM ON SUCH TERMS AS THE
INDEMNIFIED PARTY, IN ITS SOLE DISCRETION, SHALL DEEM APPROPRIATE, PROVIDED THAT
THE CONSENT OF THE INDEMNIFIED PARTY TO ANY