certificates referenced in
Section 8.03.
ARTICLE X
ADDITIONAL AGREEMENTS AND PROVISIONS
SECTION 10.01
SURVIVAL OF CERTAIN REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT SHALL SURVIVE THE CLOSING
UNTIL THE SURVIVAL DATE; PROVIDED, HOWEVER, THAT (A) THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 2.03 AND 2.04 SHALL SURVIVE THE CLOSING
INDEFINITELY, (B) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 2.10
(RELATING TO TAXES) SHALL SURVIVE THE CLOSING UNTIL THE EXPIRATION OF THE
APPLICABLE STATUTE OF LIMITATIONS (TAKING INTO ACCOUNT ANY APPLICABLE EXTENSIONS
OR TOLLINGS THEREOF), (C) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN
SECTION 2.09 (RELATING TO EMPLOYEE BENEFIT PLANS) SHALL SURVIVE THE CLOSING
UNTIL DECEMBER 31, 2007 AND (D) THIS SECTION 10.01 SHALL NOT LIMIT ANY OTHER
COVENANT OR AGREEMENT OF THE PARTIES THAT EXPRESSLY CONTEMPLATES PERFORMANCES
BEYOND SUCH PERIOD.
41
SECTION 10.02
DEFINITIONS OF CERTAIN TERMS.
(A)
THE TERM "MATERIAL ADVERSE EFFECT" OR
"MATERIAL ADVERSE CHANGE," WHEN USED IN THIS AGREEMENT MEANS ANY EVENT,
CIRCUMSTANCE OR CHANGE THAT
(I) IS MATERIALLY ADVERSE TO THE ASSETS, BUSINESS,
RESULTS OF OPERATION OR FINANCIAL CONDITION OF AIIHC AND THE SUBSIDIARIES, TAKEN
AS A WHOLE OR (II) MATERIALLY ADVERSELY AFFECTS THE ABILITY OF SELLER OR ARCH
PARENT TO PERFORM ITS OBLIGATIONS HEREUNDER OR TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY; PROVIDED, HOWEVER THAT THE FOLLOWING SHALL BE EXCLUDED FROM
ANY DETERMINATION AS TO WHETHER A MATERIAL ADVERSE EFFECT OR MATERIAL ADVERSE
CHANGE HAS OCCURRED: (A) ANY CHANGES OR EFFECTS ATTRIBUTABLE TO GENERAL ECONOMIC
OR POLITICAL CONDITIONS OR THE SECURITIES MARKETS OR (B) ANY CHANGES OR EFFECTS
THAT ARE GENERALLY APPLICABLE TO PERSONS ENGAGED IN THE BUSINESS, INCLUDING
WITHOUT LIMITATION, ANY SUCH CHANGES OR EFFECTS RESULTING FROM THE BREAK-OUT OF
WAR OR A TERRORIST OR SIMILAR ATTACK.
(b)
For purposes of this Agreement, an
"Affiliate" of a person means any other person in control of, controlled by or
under common control with such person.
For purposes of this Agreement, the term
"control" (including the terms "controlling," "controlled by" and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise.
(c)
The term "Reorganization Agreement," when
used in this Agreement, means the Reorganization Agreement, dated as of
December 31, 2000, relating to the acquisition of all of the capital stock of
AIIHC by Arch Parent.
(d)
The term "Person," when used in this
Agreement, means any individual, corporation, limited liability company,
partnership, limited partnership, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental, judicial or
regulatory body or other entity.
SECTION 10.03
FEES AND EXPENSES.
(A)
PURCHASER, ON THE ONE HAND, AND ARCH PARENT
AND SELLER, ON THE OTHER HAND, HEREBY AGREE THAT THEY WILL EACH BE RESPONSIBLE
FOR THEIR OWN COSTS AND EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY, AND THAT ARCH PARENT AND SELLER WILL BE
RESPONSIBLE FOR THE COSTS AND EXPENSES OF AIIHC