AND DEFEND SELLER FROM AND AGAINST:
(A)
ANY LOSSES WHICH ACCRUE OR WHICH ARE BASED ON PURCHASER'S FAILURE
TO COMPLY WITH ITS CLOSING SURVIVING OBLIGATIONS OR EVENTS WHICH OCCURRED ON OR
AFTER THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, ANY FAILURE ON THE PART
OF PURCHASER TO PAY (OR CAUSE TO BE PAID) THE RENEWAL TERM SCHWAB COMMISSIONS
AND ANY FAILURE ON THE PART OF PURCHASER (AND PURCHASER'S AFFILIATES) TO PERFORM
AS REQUIRED UNDER THIS AGREEMENT AND THE SCHWAB LEASE (EXCEPT AS THE OBLIGATIONS
OF PERFORMANCE THEREUNDER IS RETAINED BY SELLER AS EXPRESSLY PROVIDED IN THIS
AGREEMENT); AND
(B)
ALL REASONABLE COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES AND EXPENSES) INCURRED BY THE SELLER IN CONNECTION WITH ANY ACTION, SUIT,
PROCEEDING, DEMAND, ASSESSMENT OR JUDGMENT INSTITUTED BY A THIRD PARTY AGAINST
SELLER OR BY THE SELLER AGAINST PURCHASER OR A THIRD PARTY INCIDENT TO ANY OF
THE MATTERS INDEMNIFIED AGAINST IN THIS SECTION 19.2.
SECTION 19.3
SURVIVAL OF INDEMNITY.
THE PROVISIONS OF THIS ARTICLE
XIX SHALL SURVIVE THE CLOSING UNTIL THE TENTH (10TH) ANNIVERSARY OF THE CLOSING
DATE, UNLESS A SHORTER STATUTE OF LIMITATIONS SHALL APPLY.
ARTICLE XX
8/9 TRANSFEREE DEBT MAINTENANCE COVENANT
SECTION 20.1
MAINTENANCE COVENANT.
FROM THE CLOSING THROUGH THE
SECOND ANNIVERSARY OF THE CLOSING (THE "NET WORTH SURVIVAL PERIOD"), SELLER
SHALL CAUSE 8/9 TRANSFEREE, AND PURCHASER SHALL CAUSE POST-TRANSFER AFE, TO
MAINTAIN A NET WORTH OF NOT LESS THAN $10,000,000.00.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY PROVIDED HEREIN, EACH OF SELLER AND PURCHASER SHALL HAVE THE
RIGHT AT ANY TIME DURING THE NET WORTH SURVIVAL PERIOD TO PROVIDE ESCROW AGENT
WITH CASH OR A LETTER OF CREDIT IN THE AMOUNT OF $10,000,000, IN WHICH CASE SUCH
64
PARTY PROVIDING THE CASH OR LETTER OF CREDIT SHALL HAVE NO FURTHER OBLIGATIONS
UNDER THIS ARTICLE XX; PROVIDED, THAT IF EITHER PARTY HAS DELIVERED A LETTER OF
CREDIT, SUCH PARTY SHALL HAVE NO FURTHER OBLIGATIONS AS AFORESAID SO LONG AS
SUCH LETTER OF CREDIT REMAINS IN EFFECT THROUGH THE END OF THE NET WORTH
SURVIVAL PERIOD OR SO LONG AS THE ESCROW AGENT DRAWS ON ANY SUCH LETTER OF
CREDIT AND HOLDS CASH PROCEEDS IN-LIEU OF SUCH LETTER OF CREDIT.
ANY CASH OR
LETTER OF CREDIT DELIVERED TO ESCROW AGENT SHALL BE HELD BY ESCROW AGENT
PURSUANT TO AN ESCROW AGREEMENT IN FORM REASONABLY SATISFACTORY TO THE PARTIES.
IF ANY PARTY PROVIDES CASH OR A LETTER OF CREDIT HEREUNDER, SUCH CASH OR LETTER
OF CREDIT (LESS ANY AMOUNTS DRAWN DOWN UNDER THE ESCROW AGREEMENT) SHALL BE
REFUNDED TO SUCH PARTY AT THE EXPIRATION OF THE NET WORTH SURVIVAL PERIOD.
"NET
WORTH" MEANS (A) IN THE CASE OF POST-TRANSFER AFE, NET WORTH COMPUTED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND (B) IN THE CASE OF
8/9 TRANSFEREE, THE VALUE OF THE EXCLUDED REAL PROPERTY AND ANY IMPROVEMENTS NOW
OR HEREAFTER BUILT THEREON LESS ANY DEBT SECURED THEREBY.
"LETTER OF CREDIT"
MEANS AN IRREVOCABLE, UNCONDITIONAL LETTER OF CREDIT, IN FORM APPROVED BY THE
PARTY RECEIVING SUCH LETTER OF CREDIT (WHICH APPROVAL SHALL