AGREEMENT THAT IS QUALIFIED BY MATERIALITY SHALL BE TRUE AND CORRECT AT
AND AS OF THE CLOSING DATE AND EACH OF SUCH REPRESENTATIONS AND WARRANTIES THAT
IS NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT AND AS
OF THE CLOSING DATE, EXCEPT IN EACH CASE (I) TO THE EXTENT THAT SUCH
REPRESENTATIONS AND WARRANTIES REFER SPECIFICALLY TO AN EARLIER DATE, IN WHICH
CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND CORRECT AS OF
SUCH EARLIER DATE, OR (II) FOR CHANGES CONTEMPLATED BY THIS AGREEMENT.
(D)
THE BUYER SHALL HAVE PERFORMED OR COMPLIED IN ALL MATERIAL
RESPECTS WITH ALL OBLIGATIONS AND COVENANTS REQUIRED BY THIS AGREEMENT TO BE
PERFORMED OR COMPLIED WITH BY THE BUYER AT OR PRIOR TO THE CLOSING DATE.
(E)
THE SELLERS SHALL HAVE BEEN RELEASED FROM ANY AND ALL GUARANTEES
UNDER, AND SIMILAR OBLIGATIONS WITH RESPECT TO, ANY INDEBTEDNESS OF THE COMPANY
AND EACH OF ITS SUBSIDIARIES.
(F)
THE BUYER SHALL HAVE DELIVERED TO THE SELLERS ALL AGREEMENTS AND
OTHER DOCUMENTS REQUIRED TO BE DELIVERED BY THE BUYER TO THE SELLERS PURSUANT TO
SECTION 2.4(B).
(G)
THE TRANSFER AND REDEMPTION SHALL HAVE BEEN COMPLETED.
ARTICLE IX
INDEMNIFICATION
9.1
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
THE REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT SHALL SURVIVE FOR A
PERIOD OF EIGHTEEN (18) MONTHS AFTER THE CLOSING DATE; PROVIDED, HOWEVER, THAT:
(I) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.13 SHALL SURVIVE
UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS; (II) THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 3.1, 3.2, 3.4, 3.5, 4.1,
4.2 AND 4.4 SHALL SURVIVE INDEFINITELY; AND (III) THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 3.17 SHALL SURVIVE FOR A PERIOD OF THIRTY-SIX
(36) MONTHS AFTER THE CLOSING DATE.
THE COVENANTS AND AGREEMENTS CONTAINED
HEREIN SHALL SURVIVE THE CLOSING WITHOUT LIMITATION AS TO TIME UNLESS THE
COVENANT OR AGREEMENT SPECIFIES A TERM, IN WHICH CASE SUCH COVENANT OR AGREEMENT
SHALL SURVIVE FOR SUCH SPECIFIED TERM.
ANY CLAIMS UNDER THIS AGREEMENT WITH
RESPECT TO ANY INACCURACY OF ANY REPRESENTATION OR WARRANTY OR THE BREACH OF ANY
COVENANT, UNDERTAKING OR OTHER AGREEMENT CONTAINED IN THIS AGREEMENT MUST BE
ASSERTED BY WRITTEN NOTICE DELIVERED PRIOR TO 5:00 P.M., PACIFIC TIME, ON THE
LAST BUSINESS DAY OF THE APPLICABLE SURVIVAL PERIOD SET FORTH ABOVE, AND IF SUCH
A CLAIM NOTICE IS GIVEN IN COMPLIANCE WITH SECTION 9.4(A) OR A THIRD PARTY
NOTICE IS GIVEN IN COMPLIANCE WITH SECTION 9.5(A), AS APPLICABLE, PRIOR TO SUCH
TIME, THE SURVIVAL PERIOD FOR SUCH CLAIM SHALL CONTINUE UNTIL SUCH CLAIM IS
FULLY RESOLVED.
NOTWITHSTANDING ANYTHING IN THIS ARTICLE IX TO THE CONTRARY, IF
ANY REPRESENTATION MADE BY THE SELLERS OR THE COMPANY BASED ON FACTS IN
42
existence as of the Closing Date is rendered incorrect solely because of a
change in Law or regulation subsequent to the Closing Date, such representation
shall not be deemed to have been incorrect as of the Closing Date.
9.2
INDEMNIFICATION.
(A)
SUBJECT TO THE LIMITATIONS SET