Common use of Other Rights and Remedies Clause in Contracts

Other Rights and Remedies. (a) The rights provided hereby shall not be deemed exclusive of any other right to which the Indemnified Person may be entitled under any statute, applicable provision of the Company’s Articles of Incorporation, as amended, Bylaws, as amended, or any other agreement, vote of stockholders or of disinterested directors, or otherwise, both as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such office, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereof. The Company hereby acknowledges and agrees that the Company shall, and to the extent applicable shall cause any Enterprise to (i) be fully and primarily responsible for, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and (ii) be required to advance the full amount of Litigation Costs incurred by Indemnitee and shall be liable for the full amount of all Losses to the extent not prohibited by applicable law and as required by the terms of this Agreement, without regard to any rights the Indemnitee may have against the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled to, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery of any kind and no right of advancement or recovery the Indemnitee may have from the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company or Enterprise. The Company further agrees that no advancement or payment by any Third-Party Indemnitor or its insurer on behalf of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this Agreement.

Other Rights and Remedies. (a) The rights provided hereby shall not be deemed exclusive of any other right to which the Indemnified Person may be entitled under any statute, applicable provision of the Company’s Articles of Incorporation, as amendedCharter, Bylaws, as amended, or any other agreement, vote of stockholders or of disinterested directors, or otherwise, both as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such office, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereof. The Company hereby acknowledges and agrees that the Company shall, and to the extent applicable shall cause any Enterprise to to, (i) be fully and primarily responsible for, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and (ii) be required to advance the full amount of Litigation Costs incurred by Indemnitee and shall be liable for the full amount of all Losses to the extent not prohibited by applicable law and as required by the terms of this Agreement, without regard to any rights the Indemnitee may have against the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled to, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery of any kind and no right of advancement or recovery the Indemnitee may have from the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company or Enterprise. The Company further agrees that no advancement or payment by any Third-Party Indemnitor or its insurer on behalf of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this Agreement.

Other Rights and Remedies. (a) The Upon the occurrence and during the continuance of an Event of Default, Creditor may exercise from time to time any rights provided hereby shall and remedies available to it under the Uniform Commercial Code and any other applicable law in addition to, and not be deemed exclusive in lieu of, any rights and remedies expressly granted in this Agreement or in any of the other Loan Documents. In particular, but not by way of limitation of the foregoing, Creditor may, without notice, demand or legal process of any other kind, take possession of any or all of the Collateral (in addition to Collateral of which it already has possession), wherever it may be found, and for that purpose may pursue the same wherever it may be found, and may enter onto any of Borrower’s premises where any of the Collateral may be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall be sold or otherwise disposed of, and Creditor shall have the right to which store the Indemnified Person may same at any of Borrower’s premises without cost to Creditor. At Creditor’s request, Borrower shall, at Borrower’s expense, assemble the Collateral and make it available to Creditor at one or more places to be entitled designated by Creditor and reasonably convenient to Creditor and Borrower. Borrower recognizes that if Borrower fails to perform, observe or discharge any of its Liabilities under any statutethis Agreement or the other Loan Documents, applicable provision of the Company’s Articles of Incorporationno remedy at law will provide adequate relief to Creditor, as amended, Bylaws, as amended, or any other agreement, vote of stockholders or of disinterested directors, or otherwise, both as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such office, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereof. The Company hereby acknowledges and agrees that Creditor shall be entitled to temporary and permanent injunctive relief in any such case without the Company shall, necessity of proving actual damages. Any notification of intended disposition of any of the Collateral required by law will be deemed to be a reasonable authenticated notification of disposition if given at least ten (10) days prior to such disposition and to the extent applicable such notice shall cause any Enterprise to (i) be fully describe Creditor and primarily responsible forBorrower, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and (ii) be required describe the Collateral that is the subject of the intended disposition, (iii) state the method of the intended disposition, (iv) state that Borrower is entitled to advance an accounting of the full amount of Litigation Costs incurred by Indemnitee Liabilities and shall be liable state the charge, if any, for an accounting and (v) state the full amount of all Losses to the extent not prohibited by applicable law time and as required by the terms of this Agreement, without regard to any rights the Indemnitee may have against the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled to, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery place of any kind and no right of advancement public disposition or recovery the Indemnitee time after which any private sale is to be made. Creditor may have from disclaim any warranties that might arise in connection with the Third-Party Indemnitors sale, lease or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights other disposition of the Indemnitee or the obligations of the Company or Enterprise. The Company further agrees that Collateral and has no advancement or payment by obligation to provide any Third-Party Indemnitor or its insurer on behalf of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of warranties at such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this Agreementtime.

Other Rights and Remedies. (a) The Upon the occurrence and during the continuance of an Event of Default, Agent may exercise from time to time any rights provided hereby shall and remedies available to it under the Uniform Commercial Code and any other applicable law in addition to, and not be deemed exclusive in lieu of, any rights and remedies expressly granted in this Agreement or in any of the other Loan Documents. In particular, but not by way of limitation of the foregoing, Agent may, without notice, demand or legal process of any other kind, take possession of any or all of the Collateral (in addition to Collateral of which it already has possession), wherever it may be found, and for that purpose may pursue the same wherever it may be found, and may enter onto any of Borrower’s premises where any of the Collateral may be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall be sold or otherwise disposed of, and Agent shall have the right to which store the Indemnified Person may same at any of Borrower’s premises without cost to Agent or Lenders. At Agent’s request, Borrower shall, at Borrower’s expense, assemble the Collateral and make it available to Agent at one or more places to be entitled designated by Agent and reasonably convenient to Agent and Borrower. Borrower recognizes that if Borrower fails to perform, observe or discharge any of its Liabilities under any statutethis Agreement or the other Loan Documents, applicable provision of the Company’s Articles of Incorporationno remedy at law will provide adequate relief to Agent and Lenders, as amended, Bylaws, as amended, or any other agreement, vote of stockholders or of disinterested directors, or otherwise, both as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such office, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereof. The Company hereby acknowledges and agrees that Agent and Lenders shall be entitled to temporary and permanent injunctive relief in any such case without the Company shall, necessity of proving actual damages. Any notification of intended disposition of any of the Collateral required by law will be deemed to be a reasonable authenticated notification of disposition if given at least ten (10) days prior to such disposition and to the extent applicable such notice shall cause any Enterprise to (i) be fully describe Agent and primarily responsible forBorrower, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and (ii) be required describe the Collateral that is the subject of the intended disposition, (iii) state the method of the intended disposition, (iv) state that Borrower is entitled to advance an accounting of the full amount of Litigation Costs incurred by Indemnitee Liabilities and shall be liable state the charge, if any, for an accounting and (v) state the full amount of all Losses to the extent not prohibited by applicable law time and as required by the terms of this Agreement, without regard to any rights the Indemnitee may have against the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled to, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery place of any kind public disposition or the time after which any private sale is to be made. Agent and no right of advancement Lenders may disclaim any warranties that might arise in connection with the sale, lease or recovery the Indemnitee may have from the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights other disposition of the Indemnitee or the obligations of the Company or Enterprise. The Company further agrees that Collateral and has no advancement or payment by obligation to provide any Third-Party Indemnitor or its insurer on behalf of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of warranties at such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this Agreementtime.

Other Rights and Remedies. (a) The Lender shall have all the rights provided hereby shall not be deemed exclusive and remedies of any other right to which a secured creditor under the Indemnified Person provisions of the New York Uniform Commercial Code, at may be entitled under amended from time to time. In addition, Lender shall have and may exercise any statute, applicable provision of the Company’s Articles of Incorporation, as amended, Bylaws, as amended, or any all other agreement, vote of stockholders or of disinterested directorsrights and remedies it may have available at law; in equity, or otherwise, both . Election of Remedies. Except as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such office, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereof. The Company hereby acknowledges and agrees that the Company shall, and to the extent applicable shall cause any Enterprise to (i) may be fully and primarily responsible for, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and (ii) be required to advance the full amount of Litigation Costs incurred by Indemnitee and shall be liable for the full amount of all Losses to the extent not prohibited by applicable law law, all of Lender's rights and as required remedies, whether evidenced by the terms of this Agreement, without regard the Related Documents, or by any other writing. shall be cumulative and may he exercised singularly or concurrently. Election by Lender to pursue any rights remedy will not bar any other remedy, and an election to make expenditures or to take action to perform an COMMERCIAL SECURITY AGREEMENT (Continued) obligation of Grantor under this Agreement, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, THE RELATED DOCUMENTS, OR ANY RELATIONSHIP BETWEEN OR AMONG THE UNDERSIGNED AND LENDER WHETHER ANY SUCH RIGHT NOW OR HEREAFTER EXISTS. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING EVIDENCED 8Y THIS DOCUMENT AND THE RELATED DOCUMENTS. GOVERNING LAW. The Lender's loan production office for this transaction is located at the Indemnitee may have against address and in the Third-Party Indemnitors State (the "LPO State") indicated in the LPO address or pursuant the loan production office address on the first page of this document. This document will be governed by and interpreted in accordance with federal law and the laws of the LPO State, except for matters related to any insurance policy maintained interest and the exportation of interest, which matters shall be governed by the Third-Party Indemnitors. Under no circumstance shall the Company or any Enterprise be entitled and interpreted in accordance with federal law (including, but not limited to, statutes, regulations, interpretations and opinions) and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery of any kind and no right of advancement or recovery the Indemnitee may have from the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights laws of the Indemnitee State of Ohio. However, if there is ever a question about whether any provision of this document is valid or enforceable, the obligations of provision that is questioned will be governed by whichever state or federal law would find the Company or Enterpriseprovision to be valid and enforceable. The Company further agrees that no advancement or payment loan transaction which is evidenced by any Third-Party Indemnitor or its insurer on behalf this document has been made in the State of Indemnitee with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this AgreementOhio.

Other Rights and Remedies. Not Affected The indemnification rights of each Seller Indemnified Party under this Article VII are independent of and in addition to such rights and remedies as Fusion, Newco and the Seller Indemnified Party may have at law or in equity or otherwise for any misrepresentation, breach of warranty or failure to fulfill any agreement or covenant hereunder, including without limitation the right to seek specific performance, rescission or restitution, none of which rights or remedies shall be affected or diminished hereby. Page 31 7.4 Survival Notwithstanding any right of any Party to investigate fully the affairs of the other Party, Purchasers have the right to rely fully upon the representations, warranties, covenants and agreements of Sellers in this Agreement or in any Schedule, Exhibit, certificate or financial statement delivered pursuant hereto, except to the extent that Purchasers have actual knowledge to the contrary. All such representations, warranties, covenants and agreements by Sellers shall survive the execution and delivery hereof and the Closing hereunder and the Seller Indemnified Party shall be indemnified in accordance with this Article VII or other express provisions in this Agreement, and, except as otherwise specifically provided in this Agreement, the obligations shall thereafter terminate and expire at the end of the second (2"d) full year after the Closing Date unless a claim has been asserted prior to that date. ARTICLE VIII CONDITIONS PRECEDENT TO CLOSING The respective obligations of Purchasers (see Section 8.1) and Sellers (see Section 8.2) to consummate the Transactions are subject to the satisfaction at or prior to the Closing Date of each of the following conditions: 8.1 Conditions Precedent to the Obligations of Purchasers The obligation of Purchasers to consummate the Transactions is subject to the satisfaction at or prior to the Closing Date of each of the following conditions, unless waived by Purchasers in writing: (a) The rights provided representations and warranties of each of the Members and Sellers contained in Sections 3 and 4 shall be true and correct in all respects as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date. Each other representation and warranty of the Members and Sellers contained in this Agreement shall, if specifically qualified by materiality, be true and correct and, if not so qualified, be true and correct in all material respects in each case as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date. (b) Each of the Sellers shall have performed In all material respects all obligations and agreements, and complied in all material respects with all covenants and conditions, contained in this Agreement to be performed or complied with by each of them prior to or on the Closing Date. (c) Sellers shall have delivered to Fusion (i) a certificate, dated the Closing Date, signed on behalf of NBS by the Chief Executive Officer, and by each of the other Sellers by a duly authorized person, certifying as to the fulfillment of the conditions specified in Section 8.1, (ii) a certificate of the Manager(s) of NBS, dated the Closing Date, certifying as to (A) the good standing of NBS (with good standing certificate attached), (B) due authorization of this Agreement and the Transactions (with resolutions attached), and (C) true and correct attached copies of the Articles of Organization and Operating Agreement of NBS, and (iii) a certificate of the Manager of NBS certifying, among other things the incumbency of all officers of NBS and Sellers and NBS and Sellers having authority to execute and deliver this Agreement and the agreements and documents contemplated hereby and the Transactions. (d) All Third Party Consents required under all Company Material Contracts or otherwise hereunder are obtained and copies thereof delivered to Purchasers. (e) Except as set forth on Schedule 8.1(e), on or before the Closing, Sellers shall not be deemed exclusive have obtained a release and discharge of any other right to and all liens (including Tax Liens), security interests, restrictions, defects and encumbrances which affect NBS or the Indemnified Person may be entitled under any statute, applicable provision of the Company’s Articles of Incorporation, as amended, Bylaws, as amended, or any other agreement, vote of stockholders or of disinterested directors, or otherwise, both as to action in the Indemnified Person’s official capacity and as to action in another capacity while holding such officeBusiness, and shall continue after the Indemnified Person ceases to serve the Company in the position identified in the Introduction hereofprovide Fusion with all UCC-3 forms where applicable. The Company hereby acknowledges and agrees that the Company shallPage 32 (f) There shall not have been any material statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, enforced or deemed applicable by any foreign or United States federal, state or local Governmental Entity, and to the extent applicable there shall cause be no action, suit or proceeding pending or threatened, which. in Fusion's reasonable judgment (I) makes or may make this Agreement or any Enterprise to (i) be fully and primarily responsible for, and be the indemnitor of first resort with respect to, payment to or payment on behalf of the Indemnitee Transactions illegal, or imposes or may impose material damages or penalties in respect of indemnification or advancement of Litigation Costs, irrespective of any right of recovery the Indemnitee may have from Third-Party Indemnitors or pursuant to any applicable insurance policy maintained by the Third-Party Indemnitors, and connection therewith; (ii) be required to advance otherwise prohibits or unreasonably delays, or may prohibit or unreasonably delay Transactions; or (iii) increases in any material respect the full amount liabilities or obligations of Litigation Costs incurred by Indemnitee and shall be liable for the full amount of all Losses to the extent not prohibited by applicable law and as required by the terms Purchasers arising out of this Agreement, without regard or any of the Transactions. (g) Purchasers shall have made binding arrangements to any rights complete its acquisition of the Indemnitee may have against the Third-Party Indemnitors or assets of ISG pursuant to any insurance policy maintained the ISG Purchase Agreement, contemporaneous with the Closing of the Transactions. (h) Purchasers shall not have terminated this Agreement under Section 6.7, above, based upon their due diligence review. (i) No party shall have terminated this Agreement under Section 6.15, above, due to the inability to secure Necessary Funding. (j) Xxxxxxx shall have entered Into the Employment Agreement contemplated by Section 6.5 above. (k) Purchasers shall not have terminated this Agreement under Section 6.8, above, due to the Third-Party IndemnitorsAudit. Under (l) Xxxxxxx shall have executed and delivered the restrictive covenant agreement contemplated by Section 6.14. (m) To the extent it is reasonably determined by Fusion to be legally required, Xxxxxxx shall have delivered to Fusion a spousal consent to the Transactions sufficient to comply with the laws of the State of New Jersey. (n) There shall be no circumstance Excluded Liabilities which NBS, the Business or Purchasers remain liable to pay after the Closing. (o) All consents to contracts required in connection with the consummation of the Transactions shall have been received and delivered to Fusion. (p) Since the Company or any Enterprise be entitled todate hereof, nothing shall have occurred, and the Company hereby irrevocably waives, relinquishes and releases, any claims against the Third-Party Indemnitors for subrogation, contribution or recovery Purchasers shall not have become aware of any kind circumstance, change or event having occurred prior to such date, which individually or in the aggregate. has had or, in the reasonable judgment of Purchasers, could be expected to have, a Business Material Adverse Effect or a Material Adverse Affect on (i) the Transactions or Purchaser's liabilities or obligations with respect to such Transactions; or (ii) the business or prospects of NBS, the Business or Fusion (including any potential change or event disclosed on any Schedule which, subsequent to the date hereof, actually occurs). (q) All approvals and no right of advancement or recovery consents by any Governmental Entity required in connection with the Indemnitee may have from the Third-Party Indemnitors or pursuant to any insurance policy maintained by the Third-Party Indemnitors shall reduce or otherwise alter the rights consummation of the Indemnitee Transactions shall have been obtained and shall be in full force and effect and delivered to Purchasers; all filings with any Governmental Entity, as are required in connection with the consummation of such transactions, shall have been made; and all waiting periods, if any, applicable to the consummation of such transactions imposed by any Governmental Entity shall have expired. Page 33 (r) All actions, proceedings, instruments and documents required to carry out the Transactions or incidental hereto and all other related legal matters shall have been reasonably satisfactory to and approved by counsel for Purchasers, and such counsel shall have been furnished with such certified copies of such corporate actions and proceedings and such other instruments and documents as such counsel shall have reasonably requested. 8.2 Conditions Precedent to the Obligations of Sellers The obligations of each of the Company Sellers to consummate the Transactions are also subject to the satisfaction at or Enterpriseprior to the Closing Date of each of the following conditions, unless waived by each of the Sellers: (a) The representations and warranties of Purchasers contained herein shall be true and correct In all respects as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date. The Company further agrees that no advancement Each other representation and warranty of Purchasers contained in this Agreement shall, if specifically qualified by materiality, be true and correct and, if not so qualified, be true and correct in all material respects in each case as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date. (b) Each of the Purchasers shall have performed in all material respects all of their respective obligations and agreements, and complied in all material respects with all covenants and conditions, contained in this Agreement to be performed or payment complied with by any Third-Party Indemnitor Purchasers prior to or its insurer on the Closing Date. (c) Each of the Purchasers shall have delivered to Sellers a certificate, dated the Closing Date, signed on behalf of Indemnitee its Chief Executive Officer certifying as to the fulfillment of the conditions specified in this Section 8.2, including, among other things, the incumbency of each officer of Fusion and Newco having authority to execute and deliver this Agreement and the agreements and documents contemplated hereby and the Transactions. (d) All actions, proceedings, instruments and documents required to carry out the Transactions or incidental hereto and all other related legal matters shall have been reasonably satisfactory to and approved by counsel for Sellers, and such counsel shall have been furnished with such certified copies of such corporate actions and proceedings and such other instruments and documents as such counsel shall have reasonably requested. (e) There shall not have been any material statute, rule, regulation, order, judgment or decree proposed, enacted, promulgated, entered, issued, enforced or deemed appreciable by any foreign or United States federal, state or local Governmental Entity, and there shall be no action, suit or proceeding pending or threatened, which, in Sellers' reasonable judgment (i) makes or may make this Agreement or any of the Transactions illegal, or imposes or may impose material damages or penalties in connection therewith; (ii) otherwise prohibits or unreasonably delays, or may prohibit or unreasonably delay Transactions; or (iii) increases in any material respect the liabilities or obligations of Sellers arising out of this Agreement, or any of the Transactions. Page 34 (f) Since the date hereof, nothing shall have occurred, and Sellers shall not have become aware of any circumstance, change or event having occurred prior to such date, which individually or in the aggregate, has had or, in the reasonable judgment of Sellers, could be expected to have, a Fusion Material Adverse Effect or a Material Adverse Affect on the Transactions or Seller's liabilities or obligations with respect to any Proceeding for which Indemnitee has sought indemnification rights from the Company shall affect the foregoing and the Third-Party Indemnitor(s) shall have a right to receive from the Company, contribution or be subrogated, to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the CompanyTransactions. The Company and the Indemnitee agree that each of the Third-Party Indemnitors shall be third-party beneficiaries with respect to this Agreement entitled to enforce this Section 2.9 as though each such Third-Party Indemnitor were a party to this Agreement.ARTICLE IX TERMINATION 9.1