AGREEMENT IN THE FORM
ATTACHED HERETO AS EXHIBIT B (THE "NONCOMPETITION AGREEMENT").
(G)
DEBT FINANCING.
THE CONDITIONS OF THE DEBT
FINANCING AS SET FORTH IN THE COMMITMENT LETTER SHALL HAVE BEEN SATISFIED IN
FULL OR WAIVED, AND THE DEBT FINANCING SHALL HAVE BEEN PROVIDED OR MADE
AVAILABLE TO THE COMPANY AND/OR PURCHASER ON THE TERMS SET FORTH IN THE
COMMITMENT LETTER (AND, TO THE EXTENT SUCH TERMS ARE NOT SET FORTH IN THE
COMMITMENT LETTER, ON TERMS THAT ARE REASONABLY SATISFACTORY TO PURCHASER).
(H)
NO MATERIAL ADVERSE CHANGE. THERE SHALL HAVE
BEEN NO CHANGE, EVENT OR EFFECT THAT SHALL HAVE OCCURRED THAT HAS HAD OR, OR
THAT IS REASONABLY LIKELY TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL
ADVERSE EFFECT OF THE COMPANY.
ARTICLE VII
INDEMNIFICATION
7.1
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS AND WARRANTIES OF THE PARTIES CONTAINED IN ARTICLE II OR III
OF THIS AGREEMENT OR IN ANY COMPLIANCE CERTIFICATE DELIVERED PURSUANT TO
SECTIONS 6.2(A) OR 6.3(A) SHALL SURVIVE UNTIL FIFTEEN (15) MONTHS AFTER THE
CLOSING DATE; PROVIDED, HOWEVER, THAT THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN (I) SECTION 2.6 (TAXES) OF THIS AGREEMENT SHALL SURVIVE THE CLOSING
UNTIL THIRTY (30) DAYS AFTER THE EXPIRATION OF THE APPLICABLE STATUTE OF
LIMITATIONS APPLICABLE TO THE MATTERS COVERED THEREBY (GIVING EFFECT TO ANY
WAIVER, MITIGATION OR EXTENSION THEREOF), (II) SECTIONS 2.10 (EMPLOYEE BENEFITS
PLANS) AND 2.12 (ENVIRONMENTAL MATTERS) OF THIS AGREEMENT SHALL SURVIVE UNTIL
THE THIRD ANNIVERSARY OF THE CLOSING DATE, (III) SECTION 2.7 (INTELLECTUAL
PROPERTY) SHALL SURVIVE UNTIL THE SECOND ANNIVERSARY OF THE CLOSING DATE, AND
(IV) SECTIONS 2.1(A) (ORGANIZATION; STANDING AND POWER), 2.1(C) (SUBSIDIARIES),
2.2 (CAPITAL STRUCTURE), 2.3(A) (AUTHORITY), 3.1(A) (ORGANIZATION; STANDING AND
POWER) AND 3.2(A) (AUTHORITY) SHALL SURVIVE THE CLOSING INDEFINITELY (THE
"INDEFINITELY SURVIVING REPRESENTATIONS"). THE TERMINATION OF REPRESENTATIONS
AND WARRANTIES PROVIDED HEREIN SHALL NOT AFFECT THE RIGHTS OF ANY INDEMNIFIED
PARTY IN RESPECT OF ANY CLAIM MADE BY SUCH INDEMNIFIED PARTY IN A CLAIM NOTICE
RECEIVED BY THE OTHER PARTY PURSUANT TO AND IN COMPLIANCE WITH THE PROVISIONS OF
THIS ARTICLE VII PRIOR TO THE EXPIRATION DATE SPECIFIED ABOVE. ALL COVENANTS AND
AGREEMENTS THAT BY THEIR TERMS ARE TO PERFORMED AFTER THE CLOSING SHALL EXPIRE
UPON THE COMPLETION OF PERFORMANCE OR WAIVER THEREOF.
7.2
INDEMNIFICATION BY SELLER.
SUBJECT IN ALL
CASES TO THE LIMITATIONS SET FORTH IN THIS ARTICLE VII (INCLUDING, WITHOUT
LIMITATION, THE LIMITATIONS SET FORTH IN SECTION 7.6), NOTWITHSTANDING ANY
INVESTIGATION OR INQUIRY BY PURCHASER OR ANY OF ITS REPRESENTATIVES OR
AFFILIATES, SELLER SHALL INDEMNIFY, SAVE AND HOLD HARMLESS PURCHASER AND ITS
AFFILIATES (INCLUDING, AFTER THE CLOSING, THE COMPANY AND THE SUBSIDIARIES) AND
THEIR RESPECTIVE DIRECTORS, OFFICERS,
41
EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE
"PURCHASER INDEMNIFIED PARTIES") FROM AND AGAINST AND IN RESPECT OF ALL CLAIMS,
COSTS, LIABILITIES, OBLIGATIONS, FINES, PENALTIES, AWARDS, DAMAGES, LOSSES AND
EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES) ("LOSSES") ARISING
OUT OF OR RESULTING FROM ANY:
(A)
BREACH OF, OR INACCURACY IN, ANY
REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE II OF THIS AGREEMENT (OTHER THAN
THOSE REPRESENTATIONS