SHALL
BE DEEMED, WITHOUT ANY ACT OF SELLER, TO HAVE RECEIVED AND DEPOSITED THE ESCROW
AMOUNT WITH THE ESCROW AGENT.
DEPOSIT OF THE ESCROW AMOUNT WITH THE ESCROW
AGENT PURSUANT TO THE ESCROW AGREEMENT AND THIS AGREEMENT SHALL CONSTITUTE THE
CREATION OF AN ESCROW FUND (THE "ESCROW FUND") TO BE GOVERNED BY THE TERMS AND
CONDITIONS SET FORTH IN THIS ARTICLE VIII AND THE ESCROW AGREEMENT.
THE ESCROW
FUND SHALL BE AVAILABLE TO COMPENSATE BUYER FOR LOSSES AS DESCRIBED BELOW.
(B)
INDEMNIFICATION.
SELLER (THE "INDEMNIFYING
PARTY") SHALL INDEMNIFY AND HOLD HARMLESS BUYER AND ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, AND AFFILIATES (EACH, A "BUYER INDEMNITEE" AND COLLECTIVELY,
THE "BUYER INDEMNITEES") AGAINST ANY AND ALL LOSSES (AS DEFINED BELOW) INCURRED
OR SUSTAINED BY A BUYER INDEMNITEE OR BUYER INDEMNITEES, DIRECTLY OR INDIRECTLY,
AS A RESULT OF (I) ANY INACCURACY IN OR BREACH OF (OR ANY CLAIM BY ANY THIRD
PARTY ALLEGING, CONSTITUTING, OR INVOLVING AN INACCURACY IN OR BREACH OF) ANY
REPRESENTATION OR WARRANTY OF SELLER CONTAINED IN THIS AGREEMENT OR IN ANY
COLLATERAL AGREEMENT OR IN ANY CERTIFICATE, INSTRUMENT, OR OTHER DOCUMENT
DELIVERED BY SELLER PURSUANT TO THIS AGREEMENT OR ANY COLLATERAL AGREEMENT (IT
BEING UNDERSTOOD THAT FOR PURPOSES OF DETERMINING THE ACCURACY OF SUCH
REPRESENTATIONS AND WARRANTIES, ANY UPDATE, OR SUPPLEMENT TO, OR MODIFICATION OF
THE SELLER DISCLOSURE SCHEDULE MADE OR PURPORTED TO BE MADE AFTER THE DATE OF
THIS AGREEMENT SHALL BE DISREGARDED, REGARDLESS OF WHETHER SUCH UPDATE,
SUPPLEMENT, OR MODIFICATION IS OTHERWISE REQUIRED PURSUANT TO THIS AGREEMENT OR
A COLLATERAL AGREEMENT); (II) ANY FAILURE BY SELLER TO PERFORM OR COMPLY WITH
ANY COVENANT APPLICABLE TO IT CONTAINED IN THIS AGREEMENT OR ANY COLLATERAL
AGREEMENT OR IN ANY CERTIFICATE, INSTRUMENT, OR OTHER DOCUMENT DELIVERED BY
SELLER PURSUANT TO THIS AGREEMENT OR ANY COLLATERAL AGREEMENT; (III) ANY
EXCLUDED LIABILITIES OR EXCLUDED ASSETS, INCLUDING WITHOUT LIMITATION, ANY
LIABILITIES ARISING FROM OR RELATING TO SELLER'S OWNERSHIP, USE, AND OPERATION
OF THE ACQUIRED ASSETS PRIOR TO THE CLOSING; (IV) ANY CONTRACT CONSENT PAYMENT
PAID BY BUYER AFTER THE CLOSING; (V) ANY EMPLOYEE TERMINATION LIABILITY, ANY
OTHER LIABILITY TO EMPLOYEES OF SELLER AND ANY LOSSES RESULTING DIRECTLY OR
INDIRECTLY FROM SELLER'S FAILURE TO OBTAIN RELEASE AGREEMENTS FROM ANY EMPLOYEES
OF SELLER, (VI) ANY LOSSES
54
ASSOCIATED WITH ACCOUNTS RECEIVABLE OF SELLER, AS REPORTED IN THE CLOSING DATE
ACCOUNTS CERTIFICATE, OTHER THAN THE RUSSIAN RECEIVABLES, THAT REMAIN
UNCOLLECTED AS OF MARCH 1, 2008 DESPITE BUYER'S COMMERCIALLY REASONABLE
COLLECTION EFFORTS, (VII) ANY LOSSES ARISING OUT OF OR RELATED TO THE BULK SALES
LAWS OR ANY SIMILAR BULK SALES OR BULK TRANSFER LAWS, WHETHER OR NOT BUYER
ATTEMPTS TO COMPLY WITH THE REQUIREMENTS OF SUCH LAWS, AND (VIII) ANY ACTUAL OR
ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS, PROVIDED THAT (A) THE CLAIM, DEMAND, ASSERTION OF LIABILITY,
ACTION, SUIT OR PROCEEDING ALLEGING SUCH INFRINGEMENT OR MISAPPROPRIATION
("ESCROW IP CLAIM") IS FIRST MADE OR BROUGHT BY AN UNRELATED THIRD PARTY AGAINST
BUYER BETWEEN THE CLOSING DATE AND THE TWELVE-MONTH ANNIVERSARY OF THE CLOSING