BREACH.
(D)
THE FOREGOING INDEMNIFICATION PROVISIONS SHALL BE THE SOLE AND
EXCLUSIVE REMEDY AND PROCEDURE FOR ALL CLAIMS FOR BREACH OF ANY REPRESENTATION
OR WARRANTY, OR AGREEMENT CONTAINED HEREIN OR IN ANY OF THE SCHEDULES OR
EXHIBITS ATTACHED HERETO OTHER THAN A SUIT FOR SPECIFIC PERFORMANCE.
25
6.5
INDEMNIFICATION PROCEDURES.
(A)
NOTICE OF CLAIM.
ANY PERSON MAKING A CLAIM FOR INDEMNIFICATION
PURSUANT TO SECTION 6.2 OR 6.3 ABOVE (AN "INDEMNIFIED PARTY") MUST GIVE THE
PARTY (OR, IN THE CASE OF A SELLER, THE SELLERS' REPRESENTATIVE) FROM WHOM
INDEMNIFICATION IS SOUGHT (AS THE CASE MAY BE, AN "INDEMNIFYING PARTY") WRITTEN
NOTICE OF SUCH CLAIM (AN "INDEMNIFICATION CLAIM NOTICE") PROMPTLY AFTER THE
INDEMNIFIED PARTY RECEIVES ANY WRITTEN NOTICE OF ANY ACTION, LAWSUIT,
PROCEEDING, INVESTIGATION OR OTHER CLAIM (A "PROCEEDING") AGAINST OR INVOLVING
THE INDEMNIFIED PARTY BY A GOVERNMENT ENTITY OR OTHER THIRD PARTY OR OTHERWISE
DISCOVERS THE LIABILITY, OBLIGATION OR FACTS GIVING RISE TO SUCH CLAIM FOR
INDEMNIFICATION (IT BEING UNDERSTOOD THAT ANY CLAIM FOR INDEMNITY PURSUANT TO
SECTIONS 6.2(B) OR 6.3(B) ABOVE MUST BE MADE BY NOTICE GIVEN WITHIN THE
APPLICABLE SURVIVAL PERIOD SPECIFIED IN SECTION 6.1 ABOVE, AND UPON THE ISSUANCE
OF AN INDEMNIFICATION CLAIM NOTICE WITHIN SUCH PERIOD, ANY REPRESENTATION OR
WARRANTY RELATING TO SUCH INDEMNIFICATION CLAIM NOTICE SHALL, NOTWITHSTANDING
SECTION 6.1, CONTINUE TO SURVIVE WITH RESPECT TO SUCH CLAIM UNTIL SUCH CLAIM FOR
INDEMNIFICATION HAS BEEN SATISFIED OR OTHERWISE RESOLVED AS PROVIDED IN THIS
SECTION 6).
SUCH NOTICE MUST CONTAIN A DESCRIPTION OF THE CLAIM AND THE NATURE
AND AMOUNT OF SUCH LOSS (TO THE EXTENT THAT THE NATURE AND AMOUNT OF SUCH LOSS
IS KNOWN AT SUCH TIME).
THE FAILURE TO PROMPTLY GIVE ANY SUCH NOTICE SHALL NOT
RELIEVE THE INDEMNIFYING PARTY FROM ANY LIABILITY HEREUNDER WITH RESPECT TO THE
SUBJECT MATTER OF SUCH CLAIM EXCEPT TO THE EXTENT THAT THE INDEMNIFYING PARTY
HAS ACTUALLY BEEN DAMAGED BY SUCH FAILURE.
IN THE EVENT THAT THE PURCHASER AND
THE SELLERS' REPRESENTATIVE (WITH RESPECT TO THE INDEMNITY ESCROW FUND) OR THE
PURCHASER AND THE SELLERS (FOLLOWING DISTRIBUTION OF THE INDEMNITY ESCROW FUND)
ARE UNABLE TO RESOLVE ANY DISPUTE WITH RESPECT TO A CLAIM SET FORTH IN AN
INDEMNIFICATION CLAIM NOTICE WITHIN THIRTY (30) DAYS FOLLOWING DELIVERY OF THE
APPLICABLE INDEMNIFICATION CLAIM NOTICE, THE INDEMNIFIED PARTY SHALL HAVE THE
RIGHT TO SEEK JUDICIAL DETERMINATION OF SUCH CLAIM.
(B)
CONTROL OF DEFENSE; CONDITIONS.
THE OBLIGATIONS OF AN
INDEMNIFYING PARTY UNDER THIS SECTION 6 WITH RESPECT TO LOSSES ARISING FROM
CLAIMS OF ANY THIRD PARTY THAT ARE SUBJECT TO THE INDEMNIFICATION PROVIDED IN
SECTION 6.2 OR 6.3 ABOVE SHALL BE GOVERNED BY AND CONTINGENT UPON THE FOLLOWING
ADDITIONAL TERMS AND CONDITIONS:
(I)
AT ITS OPTION AN INDEMNIFYING PARTY SHALL BE ENTITLED TO ASSUME
CONTROL OF THE DEFENSE OF ANY CLAIM AND MAY APPOINT AS LEAD COUNSEL OF SUCH
DEFENSE ANY LEGAL COUNSEL SELECTED BY THE INDEMNIFYING PARTY AND REASONABLY
ACCEPTABLE TO THE INDEMNIFIED PARTY.
(II)
IF THE INDEMNIFYING PARTY HAS ASSUMED CONTROL OF THE DEFENSE IN
ACCORDANCE WITH THE PROVISIONS OF