THE CONDITIONS SPECIFIED IN SECTION 7.3(A) AND
SECTION 7.3(B) HAVE BEEN SATISFIED; AND
(II)
CERTIFIED COPIES OF THE RESOLUTIONS DULY
ADOPTED BY PURCHASER'S BOARD OF DIRECTORS OR EQUIVALENT GOVERNING BODY
AUTHORIZING ITS EXECUTION, DELIVERY AND PERFORMANCE UNDER THIS AGREEMENT AND THE
OTHER AGREEMENTS CONTEMPLATED HEREBY TO WHICH IT IS A PARTY, AND THE
CONSUMMATION OF ALL TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
(F)
ESCROW AGREEMENT.
THE ESCROW AGENT AND PURCHASER SHALL HAVE EACH
EXECUTED AND DELIVERED SIGNATURES TO THE ESCROW AGREEMENT TO PARENT.
(G)
COMMONWEALTH 20 LANDLORD AGREEMENT.
THE COMMONWEALTH 20 LANDLORD
AGREEMENT SHALL BE IN FULL FORCE AND EFFECT OR PARENT SHALL HAVE BEEN RELEASED
BY A WRITTEN AGREEMENT OF THE COMMONWEALTH 20 LANDLORD, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO PARENT, FROM ITS OBLIGATIONS UNDER THE "LEASE," THE
"PREMISES" AND THE "CONSOLIDATED GUARANTY" (AS EACH SUCH TERM IS DEFINED IN THE
COMMONWEALTH 20 LANDLORD AGREEMENT).
If the Closing occurs, all closing conditions set forth in this Section 7.3 that
have not been fully satisfied as of the Closing shall be deemed to have been
fully waived by Sellers; provided that such waiver will not affect any right to
indemnification pursuant to Article VIII in respect of any inaccuracy in any
certification made pursuant to Section 7.3(e)(i).
40
SECTION 7.4.
FRUSTRATION OF CLOSING
CONDITIONS.
No party may rely on the failure of any condition set forth in this Article VII
to be satisfied if such failure was caused by such Party's failure comply with
this Agreement or to act in good faith to endeavor to consummate the
transactions provided for herein.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1.
INDEMNIFICATION OF
PURCHASER.
(A)
SELLERS AGREE THAT, AFTER THE CLOSING, SUBJECT TO THE LIMITATIONS
SET FORTH IN THIS ARTICLE VIII, SELLERS SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS PURCHASER AND ITS OFFICERS, DIRECTORS, AGENTS AND REPRESENTATIVES (EACH
HEREINAFTER REFERRED TO INDIVIDUALLY AS A "SELLER-INDEMNIFIED PERSON" AND
COLLECTIVELY AS "SELLER-INDEMNIFIED PERSONS"), FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, SUITS, ACTIONS, CAUSES OF ACTIONS, LOSSES, COSTS, DAMAGES,
LIABILITIES AND OUT-OF-POCKET EXPENSES INCURRED OR PAID, INCLUDING REASONABLE
ATTORNEYS' FEES, COSTS OF INVESTIGATION OR SETTLEMENT, OTHER PROFESSIONALS' AND
EXPERTS' FEES, AND COURT OR ARBITRATION COSTS BUT SPECIFICALLY EXCLUDING (EXCEPT
TO THE EXTENT THE SAME MAY BE AWARDED TO A THIRD PARTY IN A THIRD-PARTY CLAIM)
CONSEQUENTIAL DAMAGES, LOST PROFITS, INDIRECT DAMAGES, PUNITIVE DAMAGES AND
EXEMPLARY DAMAGES (COLLECTIVELY REFERRED TO AS "DAMAGES"), TO HAVE ARISEN OUT OF
OR TO HAVE RESULTED FROM, IN CONNECTION WITH, OR BY VIRTUE OF (I) FACTS OR
CIRCUMSTANCES THAT CONSTITUTE AN INACCURACY, MISREPRESENTATION, BREACH OF,
DEFAULT IN, OR FAILURE TO PERFORM, ANY OF THE REPRESENTATIONS, WARRANTIES OR
COVENANTS GIVEN OR MADE BY SELLERS IN THIS AGREEMENT OR IN THE CERTIFICATE
DELIVERED PURSUANT TO SECTION 7.2(C)(I) (COLLECTIVELY, THE "LIMITED-INDEMNITY
ITEMS"), (II) THE HIGH POINT LITIGATION, (III) CLOSING INDEBTEDNESS, (IV) THE
LEASES RETAINED BY SELLERS PURSUANT TO SECTION 1.7, OR (V) ANY ACTION, SUIT,
INVESTIGATION, OR PROCEEDING DISCLOSED ON SCHEDULE 3.5 WITH RESPECT TO WHICH THE
DEFENSE IS NOT BEING PROVIDED OR PAID FOR BY