BANKS, THE ADMINISTRATIVE AGENT, THE TECHNICAL AGENT, AND THE
COLLATERAL AGENT, AS APPLICABLE, THAT ARE PARTIES THERETO AND DELIVERED TO APEX;
(C)
APEX HAS RECEIVED (I) THE OPINION OF MORRISON & FOERSTER LLP,
SPECIAL NEW YORK COUNSEL TO SUMITOMO, AND (II) THE OPINION OF ITO & MITOMI,
SPECIAL JAPANESE COUNSEL TO SUMITOMO, IN EACH CASE DATED AS OF THE CLOSING DATE,
ADDRESSED TO APEX, AND IN FORM AND SUBSTANCE SATISFACTORY TO APEX IN ITS
REASONABLE DISCRETION; AND
(D)
SUMITOMO HAS DELIVERED TO APEX A CERTIFICATE OF THE GENERAL
MANAGER, CORPORATE LEGAL & GENERAL AFFAIRS DEPARTMENT OF SUMITOMO, DATED AS OF
THE CLOSING DATE, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO APEX, AS TO
(I) THE RESOLUTIONS OF THE BOARD OF DIRECTORS (OR A DULY AUTHORIZED COMMITTEE
THEREOF) OF SUMITOMO AUTHORIZING THE EXECUTION, DELIVERY, AND PERFORMANCE OF
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND
THE TRANSACTIONS CONTEMPLATED THEREBY; AND (II) INCUMBENCY AND SIGNATURES OF THE
OFFICERS OF SUMITOMO EXECUTING THIS AGREEMENT, SUCH OTHER TRANSACTION DOCUMENTS,
AND ANY OTHER AGREEMENTS CONTEMPLATED BY THIS AGREEMENT TO WHICH IT IS A PARTY.
SECTION 6.4
BOARD APPROVALS.
THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS, THEIR EXECUTION AND DELIVERY, AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY, HAVE BEEN APPROVED BY SUMITOMO'S BOARD OF DIRECTORS AND
APEX'S BOARD OF DIRECTORS, AND TO THE EXTENT ANY OF SUCH APPROVALS ARE SUBJECT
TO THE SATISFACTION OR WAIVER OF ANY CONDITIONS, SUCH CONDITIONS HAVE BEEN
SATISFIED OR WAIVED.
SECTION 6.5
RESTRUCTURING.
ALL THE MATERIAL STEPS AND ACTIONS WITH
RESPECT TO THE CORPORATE AND TAX RESTRUCTURING SET FORTH IN SECTION 4.10 OF THE
APEX DISCLOSURE SCHEDULE TO BE TAKEN PRIOR TO CLOSING HAVE BEEN TAKEN.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE
RESPECTIVE REPRESENTATIONS AND WARRANTIES OF THE PARTIES CONTAINED IN THIS
AGREEMENT OR ANY CERTIFICATE
46
DELIVERED PURSUANT TO THIS AGREEMENT SHALL SURVIVE THE CLOSING UNTIL THE FIRST
ANNIVERSARY OF THE CLOSING DATE; PROVIDED, HOWEVER, THAT THE REPRESENTATION AND
WARRANTIES SET FORTH IN SECTION 3.1(L) THROUGH SECTION 3.1(P), SECTION 4.6, AND
SECTION 4.10 SHALL SURVIVE THE CLOSING UNTIL THE EXPIRATION OF ANY APPLICABLE
STATUTES OF LIMITATIONS; PROVIDED, FURTHER, THAT THE OBLIGATIONS TO INDEMNIFY
SPECIFIED IN SECTION 7.2 SHALL NOT TERMINATE AT THE TIME PROVIDED ABOVE IF,
PRIOR TO SUCH TIME, A NOTICE OF CLAIM RELATING TO LOSSES SPECIFYING IN DETAIL
THE NATURE OF SUCH LOSSES (ALTHOUGH THE AMOUNT OF LOSSES, IF NOT YET
DETERMINABLE, NEED NOT BE SPECIFIED) HAS BEEN GIVEN TO APEX OR SUMITOMO, AS
APPLICABLE; AND PROVIDED, FURTHER, THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT, A CLAIM FOR INDEMNITY THAT IS RELATED TO A LOSS THAT RESULTS
FROM FRAUD OR INTENTIONAL MALFEASANCE OF APEX SHALL NOT HAVE THE BENEFIT OF ANY
OF THE LIMITATIONS SET FORTH IN THIS ARTICLE VII.
THE COVENANTS OF THE PARTIES
IN THIS AGREEMENT SHALL SURVIVE THE CLOSING WITHOUT LIMITATION (EXCEPT PURSUANT
TO THEIR TERMS).
SECTION 7.2
INDEMNIFICATION.
(A)
SUBJECT TO A PARTY (AN "INDEMNIFIED PARTY") MAKING A WRITTEN CLAIM
FOR