WITHDRAWAL OR MODIFICATION RESULTING OR
ARISING, DIRECTLY OR INDIRECTLY, FROM ANY INTENTIONAL FAILURE TO PROVIDE
INFORMATION OR WILLFUL MISREPRESENTATION ON THE PART OF SELLER OR ANY OF ITS
REPRESENTATIVES IN CONNECTION WITH THE PREPARATION AND ISSUANCE OF SUCH FAIRNESS
OPINION).
(II)
SOLELY TO THE EXTENT THAT (X) NOT LESS THAN NINE (9) MONTHS HAVE
ELAPSED SINCE THE DATE OF THIS AGREEMENT AND (Y) THERE HAS BEEN A MATERIAL,
POSITIVE CHANGE IN THE RESULTS OF OPERATIONS OF THE PURCHASED BUSINESS, AS
OPERATED BY SELLER AND WITHOUT REGARD TO (X) ANY EVENT OR CIRCUMSTANCE
CONDITIONED UPON, OR ATTRIBUTABLE TO, THE
50
EXPECTED CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR (Y) ANY EFFORTS
UNDERTAKEN BY BUYER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES WITH RESPECT TO
THE PURCHASED BUSINESS), THE SELLER BOARD SHALL HAVE RECEIVED A WRITTEN
BRING-DOWN OF THE SELLER FAIRNESS OPINION FROM THE FINANCIAL ADVISOR(S)
PROVIDING THE SELLER FAIRNESS OPINION, STATING THAT THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY ARE FAIR, AS OF THE DATE
OF SUCH WRITTEN BRING-DOWN, TO SELLER FROM A FINANCIAL POINT OF VIEW.
(F)
ANCILLARY AGREEMENTS.
BUYER SHALL HAVE ENTERED INTO AND
DELIVERED TO SELLER EACH ANCILLARY AGREEMENT TO WHICH IT IS A PARTY.
(G)
NO BUYER MATERIAL ADVERSE CHANGE.
FROM THE DATE OF THIS AGREEMENT
THROUGH THE CLOSING, THERE SHALL NOT HAVE BEEN A BUYER MATERIAL ADVERSE CHANGE.
(H)
INSURANCE COVERAGE.
IF THE PARTIES ARE UNABLE TO OBTAIN MUTUAL
INSURANCE PRIOR TO THE CLOSING IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.17, THEN BUYER SHALL HAVE OBTAINED, AT ITS SOLE COST AND EXPENSE, INSURANCES
POLICIES OR OTHER FORMS OF INSURANCE EVIDENCING INSURANCE COVERAGE OF THE TYPES
AND IN THE AMOUNTS LISTED IN SCHEDULE 5.17(B) OR, IF SUCH COVERAGE IS NOT
OBTAINED, THEN BUYER SHALL HAVE OBTAINED SUCH OTHER EQUIVALENT ARRANGEMENTS AS
SHALL BE REASONABLY SATISFACTORY TO SELLER.
ARTICLE VII.
INDEMNIFICATION; REMEDIES
7.1
SURVIVAL OF REPRESENTATIONS, ETC.
(A)
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES OF SELLER AND BUYER
CONTAINED HEREIN SHALL SURVIVE UNTIL THE SECOND (2ND) ANNIVERSARY OF THE CLOSING
DATE; PROVIDED, HOWEVER, THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
SECTION 3.8 (TAXES) AND SECTION 3.14 (ENVIRONMENTAL MATTERS) SHALL SURVIVE UNTIL
THE LATER OF SUCH DATE OR SIXTY (60) DAYS AFTER THE EXPIRATION OF THE STATUTES
OF LIMITATIONS APPLICABLE TO CLAIMS OF THIRD-PARTIES OR GOVERNMENTAL ENTITIES
REGARDING SUCH MATTERS ARISING IN OR RELATED TO PERIODS PRIOR TO CLOSING (GIVING
EFFECT TO ANY WAIVER OR EXTENSION OF SUCH STATUTES OF LIMITATIONS) AND THAT THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 3.2 AND SECTION 4.2
(AUTHORITY; NO CONFLICT) SHALL SURVIVE THE CLOSING INDEFINITELY.
(B)
INVESTIGATION; WAIVER.
THE RIGHT TO INDEMNIFICATION, PAYMENT OF
DAMAGES OR OTHER REMEDY BASED ON SUCH REPRESENTATIONS, WARRANTIES, COVENANTS,
AGREEMENTS AND OBLIGATIONS HEREIN WILL NOT BE AFFECTED BY ANY INVESTIGATION
CONDUCTED WITH RESPECT TO, OR ANY KNOWLEDGE ACQUIRED (OR CAPABLE OF BEING
ACQUIRED) AT ANY TIME, WHETHER BEFORE OR AFTER THE EXECUTION AND DELIVERY OF
THIS AGREEMENT OR THE CLOSING DATE, WITH RESPECT TO THE ACCURACY OR INACCURACY
OF OR COMPLIANCE