SUCH REPRESENTATION AND
WARRANTY EXPRESSLY SPEAKS AS OF AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATION AND WARRANTY SHALL BE TRUE AND CORRECT AS OF SUCH EARLIER DATE)
AND THE RAINBOW PARTIES SHALL HAVE RECEIVED THE CERTIFICATE CONTEMPLATED BY
SECTION 3(B)(V).
(B)
PERFORMANCE OF OBLIGATIONS OF THE RAINBOW
PARTIES.
THE RAINBOW PARTIES SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL
OBLIGATIONS REQUIRED TO BE PERFORMED BY EACH OF THEM UNDER THIS AGREEMENT AT OR
PRIOR TO THE CLOSING, AND THE FOX PARTIES SHALL HAVE RECEIVED THE CERTIFICATE
CONTEMPLATED BY SECTION 3(B)(V).
(C)
DELIVERIES.
ALL OF THE DOCUMENTS REQUIRED
TO BE DELIVERED OR CAUSED TO BE DELIVERED BY A RAINBOW PARTY PURSUANT TO
SECTIONS 3.1(A) AND 3.1(B) SHALL HAVE BEEN DELIVERED CONTEMPORANEOUS WITH THE
CLOSING.
ARTICLE X
INDEMNIFICATION
SECTION 10.1
SURVIVAL.
THE REPRESENTATIONS,
WARRANTIES, AGREEMENTS, COVENANTS AND OBLIGATIONS OF THE FOX PARTIES AND THE
RAINBOW PARTIES CONTAINED IN THIS AGREEMENT, THE SCHEDULES AND EXHIBITS HERETO,
AND ANY CERTIFICATE, DOCUMENTS OR STATEMENT DELIVERED TO THE OTHER PARTIES
PURSUANT HERETO, SHALL SURVIVE FOR A PERIOD OF ONE (1) YEAR FOLLOWING THE
CLOSING AND NOT BE AFFECTED IN ANY RESPECT BY THE CLOSING, ANY INVESTIGATIONS
CONDUCTED BY ANY PARTIES OR ANY KNOWLEDGE OF ANY PARTY; PROVIDED, THAT (I) THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTIONS 5.6 AND 7.1 SHALL SURVIVE
THE CLOSING INDEFINITELY, AND (II) THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN SECTION 7.5 SHALL SURVIVE THE CLOSING FOR THE APPLICABLE STATUTE OF
LIMITATIONS (INCLUDING ANY EXTENSIONS THEREOF).
IF WRITTEN NOTICE OF A CLAIM
HAS BEEN GIVEN PRIOR TO THE EXPIRATION OF THE APPLICABLE REPRESENTATIONS,
WARRANTIES OR COVENANTS, THEN THE RELEVANT REPRESENTATIONS, WARRANTIES OR
COVENANTS SHALL SURVIVE AS TO SUCH CLAIM, UNTIL SUCH CLAIM HAS BEEN FINALLY
RESOLVED.
38
SECTION 10.2
INDEMNIFICATION.
(A)
THE FOX PARTIES (THE "FOX INDEMNIFYING
PARTIES" AND, TOGETHER WITH THE RAINBOW INDEMNIFYING PARTIES, "INDEMNIFYING
PARTIES") SHALL INDEMNIFY EACH RAINBOW PARTY AND ITS OFFICERS, MEMBERS AND
AFFILIATES (THE "RAINBOW INDEMNIFIED PARTIES" AND, TOGETHER WITH FOX INDEMNIFIED
PARTIES, "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES,
LIABILITIES, CLAIMS, CHARGES, ACTIONS, PROCEEDINGS, DEMANDS, JUDGMENTS,
DEFICIENCIES, SETTLEMENT COSTS AND EXPENSES OF ANY NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES AND EXPENSES BUT NET OF ANY
INSURANCE PROCEEDS AND TAX BENEFITS RECEIVED IN CONNECTION WITH SUCH
INDEMNIFICATION CLAIM BY SUCH INDEMNIFIED PARTY) (COLLECTIVELY, "LOSSES")
DIRECTLY OR INDIRECTLY INCURRED BY SUCH INDEMNIFIED PARTY AND RESULTING FROM (I)
THE INACCURACY, IN ANY MATERIAL RESPECT, OF ANY REPRESENTATION OR WARRANTY OF
FOX PARTY, (II) ANY BREACH OF OR FAILURE TO PERFORM BY A FOX PARTY ANY
AGREEMENT, COVENANT OR OBLIGATION CONTAINED IN OR MADE PURSUANT TO THIS
AGREEMENT, AND (III) THE NOTES, AND ALL CLAIMS, CHARGES, ACTIONS OR PROCEEDINGS
INCIDENT TO OR ARISING OUT OF THE FOREGOING (EACH SUCH LOSS, A "RAINBOW
INDEMNIFIED LIABILITY").
FOR PURPOSES OF SEEKING INDEMNITY PURSUANT TO THIS
SECTION 10.2(A), THE REPRESENTATIONS AND WARRANTIES OF THE FOX PARTIES SHALL BE
INTERPRETED WITHOUT GIVING EFFECT TO ANY QUALIFICATIONS OR LIMITATIONS AS TO
"MATERIAL ADVERSE EFFECT".
THE OBLIGATION OF THE FOX INDEMNIFYING PARTIES