SELLER IS UNWILLING TO OR FAILS TO CURE OR
REMOVE ANY TITLE DEFECTS, THEN WITHIN FIVE BUSINESS DAYS OF THE SELLER NOTIFYING
THE PURCHASER IN WRITING THAT IT WILL NOT CURE SUCH TITLE DEFECT, THE PURCHASER
MAY (I) BY WRITTEN NOTICE TO THE SELLER WAIVE ITS OBJECTION AND PROCEED WITH
CLOSING AND RECEIVE NO CREDIT AGAINST, OR REDUCTION OF, THE PURCHASE PRICE ON
ACCOUNT OF THE TITLE DEFECTS OR (II) NOTIFY THE SELLER IN WRITING THAT PURCHASER
IS UNWILLING TO CLOSE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT PURSUANT
TO SECTION 7.02(G) UNLESS THE TITLE DEFECT IS CURED.
IF THE PURCHASER FAILS TO
TIMELY OBJECT IN WRITING TO ANY TITLE DEFECT AS DESCRIBED IN THE FIRST SENTENCE
OF THIS SUBSECTION (D), SUCH TITLE DEFECT SHALL BE DEEMED A PERMITTED EXCEPTION;
PROVIDED, HOWEVER, THAT PURCHASER'S FAILURE TO TIMELY OBJECT IN WRITING TO ANY
VOLUNTARY SELLER ENCUMBRANCE SHALL NOT RESULT IN ANY SUCH VOLUNTARY SELLER
ENCUMBRANCE BEING DEEMED TO BE A PERMITTED EXCEPTION AND SELLER SHALL BE
57
REQUIRED TO REMOVE ANY SUCH VOLUNTARY SELLER ENCUMBRANCE NOTWITHSTANDING ANY
SUCH FAILURE OF PURCHASER TO TIMELY OBJECT THERETO.
SECTION 5.21.
Coated Converting Agreement.
Between the date hereof and prior
to the Closing, the Seller, Parent and the Purchaser shall negotiate in good
faith to execute the Coated Converting Agreement (having substantially the terms
set forth in the term sheet attached hereto as Exhibit 5.21, the "Coated
Converting Agreement"), which shall be effective as of the Closing Date,
substantially in accordance with the terms set forth in the term sheet attached
hereto.
SECTION 5.22.
LETTER OF CREDIT.
(A)
ON OR PRIOR TO THE CLOSING DATE, TO
SECURE THE INDEMNIFICATION OBLIGATIONS OF PARENT AND THE SELLER PURSUANT TO
ARTICLE VIII, PARENT SHALL OBTAIN ONE OR MORE LETTERS OF CREDIT IN AN AGGREGATE
AMOUNT OF $10 MILLION (THE "LETTER OF CREDIT") FROM JP MORGAN CHASE BANK, N.A.,
OR ANOTHER FINANCIAL INSTITUTION REASONABLY ACCEPTABLE TO THE PURCHASER, WHICH
LETTER OF CREDIT SHALL BE SUBSTANTIALLY IN THE FORM OF EXHIBIT 5.22 HERETO.
DURING THE FIVE-YEAR PERIOD FOLLOWING THE CLOSING DATE (THE "INITIAL TERM"),
PARENT SHALL MAINTAIN, OR CAUSED TO BE MAINTAINED, FOR THE BENEFIT OF THE
PURCHASER, THE LETTERS OF CREDIT IN AN AGGREGATE AMOUNT OF $10,000,000, AND FOR
THE TWO-YEAR PERIOD FOLLOWING THE INITIAL TERM (THE "FINAL TERM"), PARENT SHALL
MAINTAIN, OR CAUSED TO BE MAINTAINED, FOR THE BENEFIT OF THE PURCHASER, THE
LETTERS OF CREDIT IN AN AGGREGATE AMOUNT OF AT LEAST $5,000,000.
(B)
THE PURCHASER SHALL HAVE THE RIGHT TO DRAW UPON THE LETTER OF
CREDIT AT ANY TIME DURING THE INITIAL TERM OR THE FINAL TERM, FOR AN AMOUNT
DETERMINED AS SPECIFIED BELOW, IF EACH OF THE FOLLOWING CONDITIONS HAVE BEEN
SATISFIED:
(I)
THE PURCHASER HAS GIVEN THE PARENT OR THE SELLER NOTICE IN
ACCORDANCE WITH SECTION 8.05 OF A MATTER THAT COULD GIVE RISE TO INDEMNIFICATION
BY PARENT OR SELLER PURSUANT TO SECTION 8.02;
(II)
PARENT SHALL NOT HAVE OBJECTED TO THE AMOUNT CLAIMED FOR
INDEMNIFICATION WITH RESPECT TO SUCH INDEMNIFIABLE LOSS IN ACCORDANCE