UPDATES REGARDING THE STATUS OF
SUCH LITIGATION AND ANY INSURANCE RECOVERIES RELATED THERETO. NOTWITHSTANDING
CLAUSE (II) ABOVE, SELLER MAY, AT ANY TIME AND AT ITS OPTION, NOTIFY BUYER AND
THE COMPANY THAT IT WILL ASSUME AND THEREAFTER CONTROL, AT ITS OWN EXPENSE, THE
MANAGEMENT OF ANY SPECIFIED LITIGATION IN RESPECT OF THE EL DORADO INCIDENTS. IN
THE EVENT SELLER ELECTS TO ASSUME AND CONTROL THE MANAGEMENT OF ANY SUCH
LITIGATION, BUYER SHALL, AND SHALL CAUSE THE COMPANY TO, FULLY COOPERATE WITH
SELLER WITH RESPECT THERETO, INCLUDING PROVIDING SELLER ACCESS TO SUCH BOOKS AND
RECORDS OF THE COMPANY, AND TO SUCH COMPANY PERSONNEL, AS SELLER MAY DEEM
NECESSARY OR DESIRABLE, AND SHALL TAKE ALL SUCH FURTHER ACTIONS AS SELLER MAY
REQUEST FROM TIME TO TIME, IN ORDER TO FACILITATE SELLER'S MANAGEMENT THEREOF.
SECTION 5.18
PENDING CLAIMS RELATED TO EL DORADO INCIDENTS. IMMEDIATELY
PRIOR TO CLOSING, IN THE EVENT THAT THE COMPANY HAS NOT RECOVERED FULLY ON
RECEIVABLES FOR EXPECTED INSURANCE REIMBURSEMENT ARISING FROM THE EL DORADO
INCIDENTS (OR ON DEDUCTIBLES PAID OR OTHER UNINSURED LOSS RELATED THERETO),
SELLER MAY, AT ITS OPTION, CAUSE THE COMPANY TO ASSIGN ITS RIGHTS IN RESPECT
THERETO TO SELLER OR ANY OF ITS AFFILIATES, AND THEREAFTER, SELLER OR SUCH
AFFILIATE MAY, AT ITS OWN EXPENSE, CONTINUE TO PURSUE SUCH CLAIMS. IN THE EVENT
THAT SELLER DOES NOT ELECT TO CAUSE THE COMPANY TO EFFECT SUCH ASSIGNMENT, OR
SUCH ASSIGNMENT BY THE COMPANY IS DETERMINED TO BE ILLEGAL OR IMPERMISSIBLE FOR
ANY REASON, THEN FOLLOWING THE CLOSING, BUYER AGREES TO, AND TO CAUSE THE
COMPANY TO, USE ITS REASONABLE BEST EFFORTS TO PURSUE SUCH CLAIMS, AT SELLER'S
EXPENSE, AND TO PROMPTLY DELIVER TO SELLER ANY RECEIVABLES OR RECOVERIES THAT
THE COMPANY RECEIVES IN RESPECT THEREOF.
ARTICLE VI
CONDITIONS TO CLOSING AND DELIVERABLES
SECTION 6.1
CONDITIONS TO OBLIGATIONS OF BUYER. THE OBLIGATION OF
BUYER TO CONSUMMATE THE PURCHASE OF THE MEMBERSHIP INTERESTS AND TO TAKE THE
OTHER ACTIONS TO BE TAKEN BY BUYER AT THE CLOSING IS SUBJECT TO THE
SATISFACTION, AT OR PRIOR TO THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS
(ANY OF WHICH MAY BE WAIVED IN WHOLE OR IN PART BY BUYER):
(A)
REPRESENTATIONS AND WARRANTIES. EACH OF THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN ANY REPRESENTATION
OR WARRANTY IN RESPECT OF WHICH SELLER HAS DELIVERED A NOTICE TO BUYER, AND
BUYER HAS FAILED TO DELIVER A NOTICE TO SELLER, IN EACH
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case pursuant to and in accordance with Section 5.8), which representations and
warranties shall be deemed for purposes of this Section 6.1(a) not to include
any qualification or limitation with respect to materiality (whether by
reference to "material," "Material Adverse Effect" or otherwise), shall be true
and correct as of the Closing Date, with the same effect as though such
representations and warranties had been made on and as of the Closing Date,
except that such representations and warranties that are made as of a specific
date need only be true in all material