OR SUFFERED BY ANY OTHER PARTY AS A RESULT OF SUCH FAILURE OR
BREACH.
THE PROVISIONS OF THIS SECTION 11.02, ARTICLE XIII AND THE
CONFIDENTIALITY AGREEMENT SHALL SURVIVE ANY TERMINATION HEREOF PURSUANT TO
SECTION 11.01.
ARTICLE XII
SURVIVAL; INDEMNIFICATION
SECTION 12.01
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES
OF THE PARTIES HERETO CONTAINED IN OR MADE PURSUANT TO THIS AGREEMENT OR IN ANY
CERTIFICATE OR OTHER WRITING FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH
SHALL SURVIVE IN FULL FORCE AND EFFECT UNTIL THE FIRST ANNIVERSARY OF THE
CLOSING DATE; PROVIDED THAT (I) ANY AND ALL COVENANTS AND AGREEMENTS SHALL
SURVIVE INDEFINITELY, (II) THE REPRESENTATIONS AND WARRANTIES IN SECTION 3.01,
SECTION 3.02, SECTION 3.20, SECTION 4.01, SECTION 4.02 AND SECTION 4.07 SHALL
SURVIVE INDEFINITELY; (III) THE REPRESENTATIONS AND WARRANTIES IN SECTION 3.16,
SECTION 3.17, SECTION 3.18 AND SECTION 3.19 AND THE COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VIII AND ARTICLE IX SHALL
SURVIVE UNTIL EXPIRATION OF THE STATUTE OF LIMITATIONS APPLICABLE TO THE MATTERS
COVERED THEREBY (GIVING EFFECT TO ANY WAIVER, MITIGATION OR EXTENSION THEREOF),
IF LATER, AND (IV) SECTION 2.09, SECTION 2.10, SECTION 2.11, AND SECTION 2.12
SHALL SURVIVE UNTIL THE PRORATION ADJUSTMENT CONTEMPLATED THEREIN HAS BEEN
COMPLETED.
NOTWITHSTANDING THE PRECEDING SENTENCE, ANY COVENANT, AGREEMENT,
REPRESENTATION OR WARRANTY IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT UNDER
THIS AGREEMENT SHALL SURVIVE THE TIME AT WHICH IT WOULD OTHERWISE TERMINATE
PURSUANT TO THE PRECEDING SENTENCE, IF NOTICE OF THE INACCURACY OR BREACH
42
THEREOF GIVING RISE TO SUCH RIGHT OF INDEMNITY SHALL HAVE BEEN GIVEN TO THE
PARTY AGAINST WHOM SUCH INDEMNITY MAY BE SOUGHT PRIOR TO SUCH TIME.
SECTION 12.02
INDEMNIFICATION BY BUYER
(A)
BUYER SHALL INDEMNIFY AGAINST AND HOLD THE
SELLERS, THEIR AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS AND DIRECTORS
(COLLECTIVELY, THE "SELLER INDEMNIFIED PARTIES") HARMLESS FROM, AND AGREES TO
PROMPTLY DEFEND EITHER SELLER INDEMNIFIED PARTY FROM AND REIMBURSE EITHER SELLER
INDEMNIFIED PARTY FOR, ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES,
LIABILITIES, OBLIGATIONS AND CLAIMS OF ANY KIND (INCLUDING ANY ACTION BROUGHT BY
ANY GOVERNMENTAL AUTHORITY OR PERSON AND INCLUDING REASONABLE ATTORNEYS' FEES
AND EXPENSES REASONABLY INCURRED) (COLLECTIVELY, "LOSSES"), WHICH SUCH SELLER
INDEMNIFIED PARTY MAY AT ANY TIME SUFFER OR INCUR, OR BECOME SUBJECT TO, AS A
RESULT OF OR IN CONNECTION WITH:
(I)
ANY FAILURE OF ANY REPRESENTATION OR
WARRANTY OF BUYER (WHETHER MADE IN OR PURSUANT TO THIS AGREEMENT OR IN ANY
INSTRUMENT OR CERTIFICATE DELIVERED BY BUYER AT THE CLOSING IN ACCORDANCE
HEREWITH) TO BE TRUE WHEN MADE AND AT AND AS OF THE CLOSING DATE AS IF MADE AT
AND AS OF SUCH DATE (EXCEPT THAT REPRESENTATIONS AND WARRANTIES THAT BY THEIR
TERMS SPEAK AS OF THE DATE OF THIS AGREEMENT OR SOME OTHER DATE NEED BE TRUE
ONLY AS OF SUCH SPECIFIED DATE), IN EACH CASE DETERMINED WITHOUT REGARD TO ANY
MATERIAL ADVERSE EFFECT QUALIFICATION CONTAINED IN ANY REPRESENTATION OR
WARRANTY (EACH SUCH MISREPRESENTATION AND BREACH OF WARRANTY, OR SUCH FAILURE OF
ANY REPRESENTATION OR WARRANTY TO BE TRUE, A "BUYER WARRANTY BREACH");