with respect to this
Agreement or the transactions contemplated hereby for which Vendor will be
liable.
5.8
PURCHASER AS PRINCIPAL
Purchaser is acquiring the Purchased Shares, in its capacity as principal, and
is not purchasing those Purchased Shares for the purpose of resale or
distribution to a third party.
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ARTICLE 6
REGARDING REPRESENTATIONS, WARRANTIES
AND COVENANTS
6.1
MATERIALITY
Purchaser may not refuse to complete the Purchase on the basis of any
representations or warranties by Vendor in this Agreement being incorrect or
inaccurate, or any covenants of Vendor being breached, unless, as a result
thereof:
(A)
THERE OCCURS OR COULD REASONABLY BE EXPECTED TO OCCUR A REDUCTION
IN THE FAIR MARKET VALUE OF THE PURCHASED SHARES OR THE ASSETS IN EXCESS OF
$3,000,000 IN THE CASE OF ANY SINGLE INCORRECT OR INACCURATE REPRESENTATION OR
WARRANTY OR BREACH OF A COVENANT (A "MATERIAL CLAIM") FOR ANY REASON INCLUDING:
(I)
A DIMINUTION IN THE FAIR MARKET VALUE OF THE ASSETS (INCLUDING AS
A RESULT OF THE LOSS OF ANY ASSETS, TITLE DEFECTS IN RELATION TO SUCH ASSETS,
THE IMPAIRMENT OR LOSS OF INTERESTS IN ANY ASSETS OR THE FORFEITURE OR
NON-EXISTENCE OF ANY ASSETS);
(II)
AN INCREASE IN THE AMOUNT OF LIABILITIES OF THE CORPORATION AND
THE SUBSIDIARIES (ON A CONSOLIDATED BASIS);
(III)
THE CORPORATION AND THE SUBSIDIARIES (ON A CONSOLIDATED BASIS)
BEING UNABLE TO OPERATE THE BUSINESS AFTER THE CLOSING DATE ON SUBSTANTIALLY THE
SAME BASIS AS THE CORPORATION AND THE SUBSIDIARIES (ON A CONSOLIDATED BASIS)
OPERATED THE BUSINESS BEFORE THE CLOSING DATE; OR
(IV)
(WITHOUT DUPLICATION) A COMBINATION OF THE FOREGOING;
and the aggregate amount of all Material Claims of Purchaser exceeds
$300,000,000 and those inaccuracies or breaches have not been cured before the
Closing Time; or
(B)
PURCHASER WOULD BE UNABLE TO COMPLETE THE PURCHASE SUBSTANTIALLY
IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
For purposes of this Section 6.1, any applicable representation and warranty or
covenant of Vendor shall be deemed not to be qualified by any reference in the
text thereof to Material or to a Material Adverse Effect.
6.2
NATURE OF SURVIVAL OF VENDOR'S REPRESENTATIONS, WARRANTIES,
COVENANTS AND INDEMNITIES AND LIMITATIONS ON CLAIMS
(A)
THE REPRESENTATIONS AND WARRANTIES OF VENDOR SET FORTH IN
ARTICLE 4 SHALL SURVIVE THE CLOSING FOR THE BENEFIT OF PURCHASER FOR A PERIOD OF
EIGHTEEN MONTHS FROM THE CLOSING, AFTER WHICH TIME PURCHASER SHALL NOT BE
ENTITLED TO ADVANCE, MAKE OR BRING ANY CLAIMS WHATSOEVER AGAINST VENDOR WITH
RESPECT TO THOSE REPRESENTATIONS AND WARRANTIES, OR ANY INDEMNITIES RELATING
THERETO; PROVIDED THAT NOTWITHSTANDING THE FOREGOING:
(I)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 4.2 AND SECTION 4.4
AND THE INDEMNITIES RELATED THERETO SHALL SURVIVE FOR AN INDEFINITE PERIOD FROM
THE CLOSING; AND
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(II)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 4.19 AND THE
INDEMNITIES RELATED THERETO (INCLUDING THE INDEMNITIES IN ARTICLE 11 SHALL
CONTINUE IN FULL FORCE AND EFFECT FOR THE BENEFIT OF PURCHASER UNTIL 120 DAYS
AFTER THE LATER OF:
(A)
THE LAST DATE ON WHICH AN ASSESSMENT OR REASSESSMENT