BREACH OF
ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT CONTAINED HEREIN SHALL GIVE
RISE TO ANY RIGHT ON THE PART OF PURCHASER, AFTER THE CONSUMMATION OF THE
PURCHASE AND SALE OF THE FACILITY AND THE PURCHASED ASSETS CONTEMPLATED HEREBY,
TO RESCIND THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(H)
EXCEPT FOR ANY POST-CLOSING OBLIGATIONS OF SELLER OR PURCHASER
EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER NOR PURCHASER SHALL HAVE
ANY LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY LIABILITIES AND
DAMAGES TO THE EXTENT THAT SUCH LIABILITIES AND DAMAGES RELATE TO ACTIONS TAKEN
OR NOT TAKEN BY THE OTHER PARTY OR ITS AFFILIATES AFTER THE CLOSING DATE.
IN NO
EVENT SHALL SELLER OR PURCHASER BE LIABLE FOR CONSEQUENTIAL OR PUNITIVE
DAMAGES.
EACH PARTY SHALL TAKE ALL REASONABLE STEPS TO MITIGATE ALL SUCH
LIABILITIES AND DAMAGES UPON AND AFTER BECOMING AWARE OF ANY EVENT WHICH COULD
REASONABLY BE EXPECTED TO GIVE RISE TO SUCH LOSSES, DAMAGES AND EXPENSES.
12.03
PURCHASER INDEMNIFICATION.
PURCHASER AGREES TO INDEMNIFY AND HOLD
SELLER HARMLESS AGAINST ANY LOSS, DAMAGE OR EXPENSE (INCLUDING REASONABLE
ATTORNEYS' FEES), WHICH ARISES OUT OF OR IS IN RESPECT OF (A) ANY MATERIAL
INACCURACY OR MISREPRESENTATION IN OR MATERIAL BREACH OF ANY OF THE WARRANTIES,
REPRESENTATIONS, COVENANTS OR AGREEMENTS MADE BY PURCHASER IN THIS AGREEMENT OR
IN ANY CERTIFICATE, DOCUMENT, INSTRUMENT OR AFFIDAVIT FURNISHED BY PURCHASER IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, AND (B) ANY AND ALL ASSUMED
LIABILITIES, EXCEPT THAT THE MATERIALITY LIMITATION SET FORTH IN THIS SECTION
12.03 SHALL NOT APPLY TO ANY WARRANTY, REPRESENTATION, COVENANT OR AGREEMENT
RELATING TO ANY TAX.
12.04
INDEMNIFICATION NOTICE.
PROMPTLY UPON OBTAINING KNOWLEDGE OF ANY
CLAIM, EVENT, FACTS OR DEMAND WHICH GIVES RISE TO, OR COULD REASONABLY BE
EXPECTED TO GIVE RISE TO, A CLAIM FOR INDEMNIFICATION HEREUNDER (INCLUDING IN
THE CASE OF A CLAIM PURSUANT TO SECTION 12.01(A) ANY CLAIM WHICH IS NOT PAYABLE
DUE TO THE LIMITATIONS SET FORTH IN SECTION 12.02(B) HEREOF), ANY PARTY SEEKING
27
INDEMNIFICATION UNDER THIS ARTICLE XII (AN "INDEMNIFIED PARTY") SHALL GIVE
WRITTEN NOTICE OF SUCH CLAIM OR DEMAND ("NOTICE OF CLAIM") TO THE PARTY FROM
WHICH INDEMNIFICATION IS SOUGHT (AN "INDEMNIFYING PARTY"), SETTING FORTH THE
AMOUNT OF THE CLAIM.
THE INDEMNIFIED PARTY SHALL FURNISH TO THE INDEMNIFYING
PARTY, IN REASONABLE DETAIL, SUCH INFORMATION AS IT MAY HAVE WITH RESPECT TO
SUCH INDEMNIFICATION CLAIM (INCLUDING COPIES OF ANY SUMMONS, COMPLAINT OR OTHER
PLEADING WHICH MAY HAVE BEEN SERVED ON IT AND ANY WRITTEN CLAIM, DEMAND,
INVOICE, BILLING OR OTHER DOCUMENT EVIDENCING OR ASSERTING THE SAME).
NO
FAILURE OR DELAY BY THE INDEMNIFIED PARTY IN THE PERFORMANCE OF THE FOREGOING
SHALL REDUCE OR OTHERWISE AFFECT THE OBLIGATION OF ANY INDEMNIFYING PARTY TO
INDEMNIFY AND HOLD THE INDEMNIFIED PARTY HARMLESS, EXCEPT TO THE EXTENT THAT
SUCH FAILURE OR DELAY SHALL HAVE ADVERSELY AFFECTED THE INDEMNIFYING PARTY'S
ABILITY TO DEFEND AGAINST, SETTLE OR SATISFY ANY LOSS, DAMAGE OR EXPENSE FOR
WHICH THE INDEMNIFIED PARTY IS ENTITLED TO INDEMNIFICATION HEREUNDER.
12.05
INDEMNIFICATION PROCEDURE.
(A) IF THE