Form Apa - Asset Purchase Agreement Page 34
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agents of Seller as provided in Seller's Certificate of Incorporation or Bylaws, as in effect
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as of the date hereof, or any contract with respect to matters occurring prior to the
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Closing Date, shall survive the Closing Date and shall continue in full force and effect for
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a period of not less than the applicable statute of limitations.
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(j)
Payment Obligations Not Affected.
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Nothing herein shall relieve either party of any liability to make any
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payment expressly required to be made by such party pursuant to this Agreement.
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(k)
General Release.
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With regard to this Section 10.2, Buyer acknowledges that it has read and
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is familiar with, and hereby waives the benefit of, the provisions of California Civil Code
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Section 1542, which is set forth below:
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"A general release does not extend to claims which the
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creditor does not know or suspect to exist in his favor at the
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time of executing the release, which if known by him must
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have materially affected his settlement with the debtor."
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(l)
Net Damages and Subrogation.
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(i)
Notwithstanding anything contained herein to the
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contrary, the amount of any Damages incurred or suffered by an Indemnified Party shall
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be calculated after giving effect to any proceeds, benefits or recoveries obtained by the
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Indemnified Party (or any of its Affiliates) from any other third party, and Buyer and
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Seller shall make appropriate adjustments for Tax benefits and costs in determining the
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amount of such Damages. Each Indemnified Party shall exercise commercially
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reasonable efforts to obtain such proceeds, benefits and recoveries. If any such proceeds,
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benefits or recoveries are received by an Indemnified Party (or any of its Affiliates) with
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respect to any Damages after the Indemnified Party (or any Affiliate) has received the
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benefit of any indemnification hereunder with respect thereto, the Indemnified Party (or
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such Affiliate) shall pay to the Indemnifying Party the amount of such proceeds, benefits
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or recoveries (up to the amount of the Indemnifying Party's payment).
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(ii)
Upon making any payment to an Indemnified Party in
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respect of any Damages, the Indemnifying Party will, to the extent of such payment, be
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subrogated to all rights of the Indemnified Party (and its Affiliates) against any third
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party in respect of the Damages to which such payment related. Such Indemnified Party
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(and its Affiliates) and Indemnifying Party will execute upon request all instruments
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reasonably necessary to evidence or further perfect such subrogation rights.
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10.3
Tax Indemnifications
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Seller shall pay, or cause to be paid, when due all Taxes for which Seller is or
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may be liable or that are or may become payable with respect to all taxable periods
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ending on or prior to the Closing Date pursuant to Section 2.5. Subject to the obligations
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Form APA.doc
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