DATE WHEN MADE AND AT AND AS OF THE CLOSING DATE AS THOUGH SUCH REPRESENTATIONS
AND WARRANTIES WERE MADE AT AND AS OF SUCH DATE (UNLESS EXPRESSLY MADE AT AND AS
OF AN EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE
TRUE IN SUCH RESPECTS ONLY AT AND AS OF SUCH EARLIER DATE), EXCEPT FOR CHANGES
PERMITTED OR CONTEMPLATED BY THE TERMS OF THIS AGREEMENT.
10.02
PERFORMANCE.
PURCHASER SHALL HAVE PERFORMED AND COMPLIED WITH ALL
AGREEMENTS, OBLIGATIONS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE
PERFORMED OR COMPLIED WITH BY IT ON OR PRIOR TO THE CLOSING DATE.
10.03
CERTIFICATES.
PURCHASER SHALL HAVE FURNISHED SELLER WITH SUCH
CERTIFICATES OF ITS OFFICERS TO EVIDENCE COMPLIANCE WITH THE CONDITIONS SET
FORTH IN THIS ARTICLE X AS MAY REASONABLY BE REQUESTED BY SELLER.
10.04
BOARD RESOLUTIONS.
A CERTIFIED COPY OF SUCH RESOLUTIONS OF PURCHASER'S
SOLE MEMBER AS MAY BE REQUIRED TO AUTHORIZE THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT AND THE RELATED AGREEMENTS AND AUTHORIZING SPECIFIED OFFICERS OR
REPRESENTATIVES OF PURCHASER, AS THE CASE MAY BE, TO EXECUTE AND DELIVER THIS
AGREEMENT, THE RELATED AGREEMENTS AND ANY OTHER DOCUMENTS OR INSTRUMENTS WHICH
THEY DEEM NECESSARY AND APPROPRIATE IN CONNECTION WITH THIS AGREEMENT.
10.05
PENDING INSURANCE CLAIMS.
WRITTEN ACKNOWLEDGMENT FROM EACH RELEVANT
INSURANCE CARRIER OR ITS BROKER OR OTHER DESIGNEE THAT THE COMPANY'S PENDING
CLAIMS FOR LOSSES AT THE SWINGING BRIDGE FACILITY AND THE HILLBURN FACILITY
SHALL BE PAID TO SELLER OR SUCH THIRD PARTY OR THIRD PARTIES AS THE SELLER OR
COMPANY SHALL DESIGNATE TO EACH SUCH CARRIER PRIOR TO CLOSING.
10.06
BANKRUPTCY COURT ORDERS.
THE BANKRUPTCY COURT ORDERS SHALL (I) HAVE
BEEN ENTERED BY THE BANKRUPTCY COURT, WITH SUCH CHANGES AS ARE REASONABLY
ACCEPTABLE TO SELLER AND PURCHASER AND THEIR RESPECTIVE COUNSEL, AND (II)
BECOME
FINAL ORDERS.
10.07
TERMINATION OF GAS TRANSPORTATION AGREEMENT.
COMPANY SHALL HAVE
ENTERED INTO A WRITTEN AGREEMENT EFFECTIVE UPON CLOSING TERMINATING THE GAS
TRANSPORTATION AGREEMENT AS TO COMPANY, SUCH WRITTEN AGREEMENT SHALL HAVE BEEN
TIMELY FILED WITH THE NEW YORK STATE PUBLIC SERVICE COMMISSION, AND ALL
BANKRUPTCY COURT APPROVALS WITH RESPECT TO SUCH AGREEMENT SHALL HAVE BECOME
FINAL AND NOT SUBJECT TO APPEAL, ALL IN ACCORDANCE WITH SECTION 7.27.
10.08
MODIFICATION OF TITLE V PERMITS.
THE AIR PERMITS HAVE BEEN MODIFIED
IN ACCORDANCE WITH SECTION 7.28, EFFECTIVE UPON CLOSING.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
11.01
SURVIVAL.
(A)
ALL REPRESENTATIONS AND WARRANTIES MADE BY ANY PARTY IN THIS
AGREEMENT SHALL SURVIVE THE CLOSING HEREUNDER FOR A PERIOD OF NINETY (90) DAYS
FOLLOWING THE CLOSING.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, NO CLAIM BASED UPON MISREPRESENTATION OR BREACH OF
REPRESENTATION OR WARRANTY SHALL BE MADE, NO ACTION OR LITIGATION WITH RESPECT
THERETO COMMENCED, AND NO REMEDY SHALL BE AVAILABLE UNLESS WRITTEN NOTICE
SPECIFYING WITH PARTICULARITY THE
39
MISREPRESENTATION OR BREACH CLAIMED SHALL HAVE BEEN DELIVERED ON OR PRIOR TO THE
EXPIRATION OF SUCH PERIOD.
(B)
ALL COVENANTS AND AGREEMENTS MADE BY ANY PARTY IN THIS AGREEMENT
SHALL SURVIVE THE CLOSING HEREUNDER UNTIL ALL OBLIGATIONS SET