6.4.1 BELOW), PURCHASER
SHALL INDEMNIFY AND HOLD HARMLESS SELLER AND SELLER'S OFFICERS, DIRECTORS,
AFFILIATES, DIRECTOR MEMBERS OR PARTNERS, REPRESENTATIVES, AGENTS, AND ANY
SUCCESSORS OR ASSIGNS OF SELLER (THE "SELLER INDEMNIFIED PARTY") FROM AND
AGAINST ANY DAMAGES AS INCURRED, TO THE EXTENT THEY ARISE OUT OF OR ARE A RESULT
OF:
(I)
THE BREACH OR ANY INACCURACY IN ANY OF THE REPRESENTATIONS AND
WARRANTIES OF PURCHASER CONTAINED IN THIS AGREEMENT;
44
(II)
ANY BREACH OR DEFAULT BY PURCHASER OF ANY COVENANT OR AGREEMENT
OF PURCHASER HEREUNDER; OR
(III)
THIRD PARTY CLAIMS AGAINST ANY SELLER INDEMNIFIED PARTY ARISING
OUT OF EVENTS THAT OCCUR ON OR AFTER THE CLOSING AND DURING THE PERIOD OF
OWNERSHIP BY PURCHASER AND WHICH PURPORT TO BE RELATED TO ANY OBLIGATION OR
LIABILITY OF THE TRANSFERRED COMPANIES (AS THE TRANSFERRED COMPANIES ARE
CONSTITUTED ON AND AFTER THE CLOSING), INCLUDING, WITHOUT LIMITATION,
CONTRACTUAL AND TORT CLAIMS AND/OR LIABILITIES, PROVIDED THAT THE FOREGOING
SHALL NOT INCLUDE (AND, EXCEPT TO THE EXTENT PROVIDED FOR IN SECTIONS 6.3.1(I)
AND 6.3.1(II), PURCHASER SHALL NOT BE OBLIGATED TO INDEMNIFY THE SELLER
INDEMNIFIED PARTY FOR) CLAIMS BASED UPON OR ARISING OUT OF:
(W) ENVIRONMENTAL
MATTERS (OTHER THAN CLAIMS FOR PERSONAL INJURY BUT NOT PROPERTY DAMAGE),
INCLUDING, WITHOUT LIMITATION, ANY OBLIGATION TO REMEDIATE ANY HAZARDOUS
SUBSTANCES, OR (X) THE PHYSICAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, PATENT AND LATENT DEFECTS, TITLE AND ZONING MATTERS, GOVERNMENTAL
APPROVALS, VALUATION, AND COMPLIANCE OF THE PROPERTY WITH LAWS, OTHER THAN
THIRD-PARTY CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE; (Y) ANY OBLIGATIONS
CONTAINED IN THE DOCUMENTS EVIDENCING THE EXISTING INDEBTEDNESS, OR (Z) TAX
MATTERS, EXCEPT IN EACH CASE TO THE EXTENT OF A BREACH OF AN EXPRESS
REPRESENTATION AND WARRANTY OF PURCHASER IN THIS AGREEMENT.
6.3.2
NOTICE AND RESOLUTION OF CLAIMS. NO CLAIM FOR INDEMNIFICATION UNDER
SECTION 6.3.1 SHALL BE ACTIONABLE OR PAYABLE (A) TO THE EXTENT SELLER RECEIVED A
PRORATION, ADJUSTMENT OR CREDIT AT CLOSING FOR SUCH CLAIM; (B) IF THE CLAIM IN
QUESTION RESULTS FROM OR IS BASED ON A CONDITION, STATE OF FACTS OR OTHER MATTER
WHICH WAS KNOWN TO ANY SELLER INDEMNIFIED PARTY PRIOR TO OR AT CLOSING; (C) IF
THE CLAIM RESULTS FROM A BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF
SELLER OR ANY SUCCESSOR TO OR ASSIGNEE OF PURCHASER; (D) UNLESS AND UNTIL THE
VALID CLAIMS UNDER THIS SECTION 6.3 COLLECTIVELY AGGREGATE MORE THAN THE
DEDUCTIBLE, IN WHICH EVENT, SUBJECT TO SECTION 6.3.3, ONLY THE AMOUNT OF SUCH
CLAIMS OVER AND ABOVE THE DEDUCTIBLE SHALL BE ACTIONABLE; OR (E) UNLESS WRITTEN
NOTICE CONTAINING A DESCRIPTION OF THE SPECIFIC NATURE OF SUCH CLAIM SHALL HAVE
BEEN GIVEN BY ANY SELLER INDEMNIFIED PARTY TO PURCHASER (X) PROMPTLY AFTER IT
HAS NOTICE OF SUCH CLAIM (PROVIDED THAT THE FAILURE TO PROVIDE SUCH NOTICE SHALL
NOT AFFECT THE OBLIGATIONS OF PURCHASER UNLESS AND ONLY TO THE EXTENT THAT
PURCHASER IS ACTUALLY PREJUDICED THEREBY) AND (Y) IN ALL EVENTS PRIOR TO THE
PROPERTY REPRESENTATION EXPIRATION DATE OR THE REMAINING REPRESENTATION
EXPIRATION DATE, AS APPLICABLE. THE FOREGOING IS