RELEASE TO
UTS INC. THE SUM OF TEN MILLION AND NO/100 DOLLARS ($10,000,000), TOGETHER WITH
EARNED INTEREST ON SUCH AMOUNT, FROM THE INDEMNITY ESCROW ACCOUNT, PURSUANT THAT
CERTAIN ESCROW AGREEMENT ENTERED INTO AMONG THE ESCROW AGENT, UTS INC. AND PCD
HOLDINGS LLC DATED AS OF JULY 1, 2008.
13.
REPRESENTATIONS AND WARRANTIES.
(A)
EACH OF THE PARTIES HEREBY REPRESENTS, AS OF THE DATE HEREOF AND
AS OF THE REPURCHASE CLOSING DATE, TO THE OTHER PARTIES HERETO THAT (I) IT HAS
DULY EXECUTED AND DELIVERED THIS AGREEMENT (INCLUDING ANY EXHIBITS HERETO),
(II) ALL REQUIRED CONSENTS OR APPROVALS FOR SUCH EXECUTION AND DELIVERY HAVE
BEEN OBTAINED, AND (III) IT HAS ALL REQUISITE CORPORATE OR SIMILAR APPLICABLE
RIGHT, POWER, LEGAL CAPACITY AND AUTHORITY TO ENTER INTO AND PERFORM THIS
AGREEMENT (INCLUDING ANY EXHIBITS HERETO), AS APPLICABLE.
(B)
UTS INC. HEREBY REPRESENTS AND WARRANTS TO PCD HOLDINGS LLC, AS OF
THE DATE HEREOF AND AS OF THE REPURCHASE CLOSING DATE, THAT (I) UTS INC. IS THE
SOLE BENEFICIAL AND RECORD HOLDER OF THE PURCHASED CLASS A UNITS AND (II) UTS
INC. HAS GOOD AND MARKETABLE TITLE TO THE PURCHASED CLASS A UNITS, FREE OF ANY
LIENS, CLAIMS, PLEDGES, SECURITY INTERESTS, EQUITY INTERESTS OR OTHER
ENCUMBRANCES, OTHER THAN THOSE IMPOSED UNDER APPLICABLE SECURITIES LAWS AND AS
SET FORTH IN AGREEMENTS WITH PCD HOLDINGS LLC.
(C)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTIONS 13(A) AND
(B) SHALL BE TRUE AND CORRECT AS OF THE REPURCHASE CLOSING DATE, AND EACH PARTY
SHALL DELIVER A CERTIFICATE, DATED AS OF THE REPURCHASE CLOSING DATE, TO SUCH
EFFECT.
14.
COMPROMISE OF DISPUTED CLAIMS.
THIS AGREEMENT IS A COMPROMISE OF
DISPUTED CLAIMS AND DOES NOT IN ANY WAY CONSTITUTE AN ADMISSION BY ANY PARTY OF
ANY LIABILITY OR RESPONSIBILITY, PAST, PRESENT OR FUTURE, FOR THE RELEASED
MATTERS.
15.
ENTIRE AGREEMENT; MODIFICATION.
THIS AGREEMENT, TOGETHER WITH THE
SUPPLIER AGREEMENT AND THE MERGER AGREEMENT, CONTAINS THE ENTIRE AGREEMENT
BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER CONTAINED HEREIN.
ALL PRIOR
OR CONTEMPORANEOUS AGREEMENTS, WRITTEN OR ORAL, BETWEEN THE PARTIES REGARDING
THE SUBJECT MATTER HEREOF ARE SUPERSEDED BY THIS AGREEMENT (EXCEPT THOSE
AGREEMENTS MEMORIALIZED IN THE SUPPLIER AGREEMENT AND THE MERGER AGREEMENT).
THIS AGREEMENT MAY NOT BE MODIFIED EXCEPT BY WRITTEN DOCUMENT SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF EACH PARTY.
16.
FORCE MAJEURE.
NO PARTY WILL BE LIABLE FOR ANY FAILURE TO PERFORM
ANY OBLIGATION UNDER THIS AGREEMENT (OTHER THAN OBLIGATIONS TO MAKE PAYMENTS),
OR FOR DELAY IN SUCH PERFORMANCE, TO THE EXTENT SUCH FAILURE TO PERFORM OR DELAY
IS CAUSED BY FIRE, STORM, EARTHQUAKE, EXPLOSION, WAR, ACTS OF A PUBLIC ENEMY,
LABOR DISPUTES, ACTS OF GOD AND ACTS OF ANY GOVERNMENT OR ANY AGENCY THEREOF, OR
ANY SIMILAR EVENT BEYOND ITS REASONABLE CONTROL THAT MAKES SUCH PERFORMANCE
COMMERCIALLY IMPRACTICAL.
9
ANY SUSPENSION OF PERFORMANCE BY REASON OF THIS CLAUSE WILL BE LIMITED TO THE
PERIOD DURING WHICH THE CAUSE OF SUSPENSION EXISTS.
17.
WAIVER.
NO TERM OF THIS AGREEMENT SHALL BE CONSIDERED WAIVED AND
NO BREACH EXCUSED BY ANY PARTY UNLESS MADE