OBLIGATION TO PURCHASE OR PAY FOR
INSURANCE HEREUNDER.
THE COMPANY REPRESENTS THAT THE MAXIMUM PREMIUM IS
$7,915,164.
(D)
THE SURVIVING CORPORATION SHALL PAY ALL REASONABLE EXPENSES,
INCLUDING REASONABLE ATTORNEYS' FEES, THAT MAY BE INCURRED BY ANY INDEMNIFIED
PARTY IN ENFORCING THE INDEMNITY AND OTHER OBLIGATIONS PROVIDED IN THIS SECTION
5.9.
(E)
THE RIGHTS OF EACH INDEMNIFIED PARTY HEREUNDER SHALL BE IN
ADDITION TO, AND NOT IN LIMITATION OF, ANY OTHER RIGHTS SUCH INDEMNIFIED PARTY
MAY HAVE UNDER THE CERTIFICATE OF INCORPORATION OR BY-LAWS OR OTHER ORGANIZATION
DOCUMENTS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR THE SURVIVING
CORPORATION, ANY OTHER INDEMNIFICATION AGREEMENT OR ARRANGEMENT, THE DGCL OR
OTHERWISE.
THE PROVISIONS OF THIS SECTION 5.9 SHALL SURVIVE THE CONSUMMATION OF
43
THE MERGER IN ACCORDANCE WITH THEIR TERMS AND EXPRESSLY ARE INTENDED TO BENEFIT,
AND ARE ENFORCEABLE BY, EACH OF THE INDEMNIFIED PARTIES.
(F)
IN THE EVENT THE SURVIVING CORPORATION OR ANY OF ITS SUCCESSORS
OR ASSIGNS (I) CONSOLIDATES WITH OR MERGES INTO ANY OTHER PERSON AND SHALL NOT
BE THE CONTINUING OR SURVIVING CORPORATION OR ENTITY IN SUCH CONSOLIDATION OR
MERGER OR (II) TRANSFERS ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES AND ASSETS
TO ANY PERSON, THEN, AND IN EITHER SUCH CASE, PROPER PROVISION SHALL BE MADE SO
THAT THE SUCCESSORS AND ASSIGNS OF THE SURVIVING CORPORATION SHALL ASSUME THE
OBLIGATIONS SET FORTH IN THIS SECTION 5.9.
SECTION 5.10
CONTROL OF OPERATIONS.
NOTHING CONTAINED IN THIS
AGREEMENT SHALL GIVE THE ESOP, DIRECTLY OR INDIRECTLY, THE RIGHT TO CONTROL OR
DIRECT THE COMPANY'S OPERATIONS PRIOR TO THE EFFECTIVE TIME.
PRIOR TO THE
EFFECTIVE TIME, THE COMPANY SHALL EXERCISE, CONSISTENT WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT, COMPLETE CONTROL AND SUPERVISION OVER ITS
OPERATIONS.
SECTION 5.11
FINANCING.
(A)
SECTION 5.11 OF THE COMPANY DISCLOSURE SCHEDULE SETS FORTH A TRUE,
ACCURATE AND COMPLETE COPY OF THOSE CERTAIN COMMITMENT LETTERS, LETTER
AGREEMENTS AND RELATED FEE LETTERS (COLLECTIVELY, THE "DEBT COMMITMENT
LETTERS"), DATED APRIL 1, 2007, FROM MERRILL LYNCH CAPITAL CORPORATION,
CITIGROUP GLOBAL MARKETS INC. AND JPMORGAN SECURITIES INC. TO THE COMPANY (THE
"FINANCING COMMITMENTS") PURSUANT TO WHICH, AND SUBJECT TO THE TERMS AND
CONDITIONS THEREOF, CERTAIN LENDERS HAVE COMMITTED TO PROVIDE THE COMPANY WITH
LOANS IN THE AMOUNTS DESCRIBED THEREIN, THE PROCEEDS OF WHICH MAY BE USED TO
CONSUMMATE THE MERGER, THE OFFER AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY
(THE "FINANCING").
THE COMPANY SHALL USE REASONABLE BEST EFFORTS TO OBTAIN THE
FINANCING ON THE TERMS AND CONDITIONS DESCRIBED IN THE FINANCING COMMITMENTS,
INCLUDING USING REASONABLE BEST EFFORTS (I) TO NEGOTIATE DEFINITIVE AGREEMENTS
WITH RESPECT THERETO ON THE TERMS AND CONDITIONS CONTAINED IN THE FINANCING
COMMITMENTS, (II) TO SATISFY ON A TIMELY BASIS ALL CONDITIONS APPLICABLE TO THE
COMPANY IN SUCH FINANCING COMMITMENTS, INCLUDING, WITHOUT LIMITATION, CONDITIONS
RELATED TO THE PAYMENT OF FEES AND EXPENSES OF THE LEAD ARRANGERS, THE
PREPARATION AND DELIVERY TO THE LEAD ARRANGERS OF OFFERING MATERIALS RELATED TO
THE SENIOR NOTES (AS DEFINED IN THE DEBT COMMITMENT LETTERS), AND THE PROVISION
OF INFORMATION RELATING TO THE FINANCIAL AND