AND
(III) NEITHER SELLER, NOR ANY OF ITS AFFILIATES, SHALL BE DEEMED TO BE ENGAGED
IN A COMPETITIVE ACTIVITY BY VIRTUE OF ANY SALE OF UNIVERSAL JOINTS, UNIVERSAL
JOINT PARTS, OR UNIVERSAL JOINTS CONSTRUCTED FROM PARTS WHICH ARE
EXISTING IN
THE INVENTORY OF DRIVELINE ON THE CLOSING DATE OR HAVE BEEN REPOSSESSED BY
CONGRESS FINANCIAL CORPORATION (SOUTHWEST), SELLER OR LSB INDUSTRIES, INC. OR
THEIR AFFILIATES AS OF THE CLOSING DATE.
(B)
FOR PURPOSES OF THIS SECTION 9.1,
"COMPETITIVE ACTIVITY" SHALL MEAN (I) THE SALE IN THE AMERICAS (I.E. NORTH,
CENTRAL AND SOUTH AMERICA) OF (A) ANY PRODUCT OR (B) ANY SIMILAR PRODUCT FOR THE
SAME APPLICATION AS THE PRODUCTS OR (II) THE SALE TO ANY PERSON ON SCHEDULE 9.1
OF (A) ANY PRODUCT OR (B) ANY SIMILAR PRODUCT FOR THE SAME APPLICATION AS THE
PRODUCTS.
SECTION 9.2
SEVERABILITY.
THE INVALIDITY
OR UNENFORCEABILITY OF THIS ARTICLE IX IN ANY RESPECT SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF THIS ARTICLE IX IN ANY OTHER RESPECT, OR OF ANY
OTHER PROVISION OF THIS AGREEMENT.
IN THE EVENT THAT ANY PROVISION OF THIS
ARTICLE IX SHALL BE HELD INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION BY REASON OF THE GEOGRAPHIC OR
8
business scope or the duration thereof or for any other reason, such invalidity
or unenforceability shall attach only to the particular aspect of such provision
found invalid or unenforceable as applied and shall not affect or render invalid
or unenforceable any other provision of this Article IX or the enforcement of
such provision in other circumstances, and, to the fullest extent permitted by
law, this Article IX shall be construed as if the geographic or business scope
or the duration of such provision or other basis on which such provision has
been challenged had been more narrowly drafted so as not to be invalid or
unenforceable.
SECTION 9.3
ENFORCEMENT.
SELLER
ACKNOWLEDGES AND AGREES THAT BUYER AND ITS AFFILIATES ARE ENGAGED IN A HIGHLY
COMPETITIVE BUSINESS AND THAT THE PROTECTIONS OF BUYER AND EACH SUCH AFFILIATE
SET FORTH IN THIS ARTICLE IX ARE FAIR AND REASONABLE AND ARE OF VITAL CONCERN TO
BUYER AND ITS AFFILIATES.
FURTHER, SELLER ACKNOWLEDGES AND AGREES THAT MONETARY
DAMAGES FOR ANY VIOLATION OF THIS ARTICLE IX WILL NOT ADEQUATELY COMPENSATE
BUYER AND ITS AFFILIATES WITH RESPECT TO ANY SUCH VIOLATION.
THEREFORE, IN THE
EVENT OF A BREACH BY SELLER OF ANY OF THE TERMS AND PROVISIONS CONTAINED IN THIS
ARTICLE IX, BUYER SHALL BE ENTITLED TO ENFORCE THE SPECIFIC PERFORMANCE OF THIS
ARTICLE IX BY SELLER AND TO ENJOIN SELLER FROM ANY FURTHER VIOLATIONS.
THE
REMEDIES AVAILABLE TO BUYER PURSUANT TO THIS SECTION 9.3 MAY BE EXERCISED
CUMULATIVELY BY BUYER IN CONJUNCTION WITH ALL OTHER RIGHTS AND REMEDIES PROVIDED
BY LAW.
ARTICLE X
FURTHER AGREEMENTS
SECTION 10.1
TITLE AND RISK OF LOSS.
TITLE TO
AND RISK OF LOSS OF THE PURCHASED ASSETS SHALL PASS TO BUYER FROM SELLER AS OF
THE CLOSING.
SECTION 10.2
ADDITIONAL ACTIONS SELLER AND
BUYER.
ON AND AFTER THE CLOSING