AND WARRANTIES SET FORTH IN SECTION 2.6, WHICH SHALL BE
GOVERNED BY SECTION 7.8) OR THE COMPLIANCE CERTIFICATE DELIVERED BY SELLER
PURSUANT TO SECTION 6.3(A),
(B)
BREACH OR FAILURE TO PERFORM BY SELLER OF
ANY COVENANT, AGREEMENT OR OBLIGATION OF SELLER CONTAINED IN THIS AGREEMENT,
(C)
LIABILITIES FOR TAXES DESCRIBED IN
SECTION 7.8(A) BELOW,
(D)
MATTERS DESCRIBED IN SECTION 7.2(D) OF THE
SELLER DISCLOSURE LETTER (THE "EXCLUDED CLAIMS"), AND
(E)
LOSSES ARISING OUT OF, OR RELATING TO, ANY
CLAIM INITIATED BY OR ON BEHALF OF ANY STOCKHOLDER OF SELLER, SOLELY IN HIS OR
HER CAPACITY AS A STOCKHOLDER OF SELLER, AGAINST A COMPANY INDEMNIFIED PARTY.
7.3
INDEMNIFICATION BY PURCHASER.
SUBJECT IN
ALL CASES TO THE LIMITATIONS SET FORTH IN THIS ARTICLE VII (INCLUDING, WITHOUT
LIMITATION, THE LIMITATIONS SET FORTH IN SECTION 7.6), PURCHASER SHALL
INDEMNIFY, SAVE AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES
(COLLECTIVELY, THE "SELLER INDEMNIFIED PARTIES") FROM AND AGAINST AND IN RESPECT
OF ALL LOSSES ARISING OUT OF OR RESULTING FROM ANY:
(A)
BREACH OF, OR INACCURACY IN, ANY
REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE III OF THIS AGREEMENT OR THE
COMPLIANCE CERTIFICATE DELIVERED BY PURCHASER PURSUANT TO SECTION 6.2(A),
(B)
BREACH OR FAILURE TO PERFORM BY PURCHASER OF
ANY COVENANT, AGREEMENT OR OBLIGATION OF PURCHASER CONTAINED IN THIS AGREEMENT,
(C)
LIABILITIES FOR TAXES DESCRIBED IN
SECTION 7.8(B) BELOW,
(D)
OBLIGATIONS OF SELLER OR ITS AFFILIATES
UNDER THE REMAINING GUARANTIES, AND
(E)
INSURANCE DEDUCTIBLES OR RETENTIONS PAID BY
OR ON BEHALF OF SELLER AFTER THE CLOSING DATE IN CONNECTION WITH CLAIMS HAVING A
DATE OF OCCURRENCE PRIOR TO THE CLOSING DATE AND REPORTED BY OR ON BEHALF OF THE
COMPANY OR ANY OF THE SUBSIDIARIES UNDER INSURANCE POLICIES MAINTAINED BY
SELLER, INCLUDING, WITHOUT LIMITATION, GENERAL LIABILITY, AUTOMOBILE LIABILITY
AND WORKER'S COMPENSATION.
7.4
PROCEDURE FOR CLAIMS BETWEEN PARTIES.
IF A
CLAIM FOR LOSSES IS TO BE MADE BY A PERSON ENTITLED TO INDEMNIFICATION HEREUNDER
(AN "INDEMNIFIED PARTY"), THE INDEMNIFIED PARTY
42
SHALL GIVE WRITTEN NOTICE (A "CLAIM NOTICE") TO THE PARTY REQUIRED TO PROVIDE
SUCH INDEMNIFICATION (THE "INDEMNIFYING PARTY") AS SOON AS PRACTICABLE (AND IN
ANY EVENT WITHIN FIVE (5) BUSINESS DAYS) AFTER THE INDEMNIFIED PARTY BECOMES
AWARE THAT A PARTICULAR FACT, CONDITION OR EVENT MAY GIVE RISE TO LOSSES FOR
WHICH INDEMNIFICATION MAY BE SOUGHT UNDER THIS ARTICLE VII, OTHER THAN WITH
RESPECT TO LOSSES RELATED TO TAXES (WHICH SHALL BE GOVERNED BY SECTION 7.8
BELOW).
ANY FAILURE TO SUBMIT ANY SUCH CLAIM NOTICE IN A TIMELY MANNER TO THE
INDEMNIFYING PARTY SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ANY LIABILITY
HEREUNDER, EXCEPT TO THE EXTENT (AND ONLY TO THE EXTENT) THE INDEMNIFYING PARTY
IS ACTUALLY PREJUDICED BY SUCH FAILURE.
EACH CLAIM NOTICE SHALL SET FORTH (I)
THE SPECIFIC REPRESENTATION, WARRANTY OR COVENANT ALLEGED TO HAVE BEEN BREACHED,
(II) THE NATURE AND AMOUNT OF THE CLAIM ASSERTED, TOGETHER WITH SUFFICIENT FACTS
RELATING THERETO, TO THE EXTENT KNOWN BY THE INDEMNIFIED PARTY, SO THAT THE
INDEMNIFYING PARTY MAY