THE CASE OF ANY SINGLE INCORRECT OR
INACCURATE REPRESENTATIONS OR WARRANTIES OR BREACHES OF ANY COVENANT, IT BEING
UNDERSTOOD AND AGREED THAT PURCHASER MAY AGGREGATE SIMILAR INDIVIDUAL CLAIMS
ARISING OUT OF SIMILAR EVENTS, ACTS, OCCURRENCES OR CIRCUMSTANCES (A "MATERIAL
CLAIM") OR ANY DAMAGE OR DESTRUCTION EVENT FOR ANY REASON INCLUDING:
(A)
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);
(B)
AN INCREASE IN THE AMOUNT OF LIABILITIES OF
THE CORPORATION AND THE SUBSIDIARIES (ON A CONSOLIDATED BASIS);
(C)
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
(D)
(WITHOUT DUPLICATION) A COMBINATION OF THE
FOREGOING; AND
the aggregate amount of all uncured Claims of Purchaser and all Damage or
Destruction Events exceeds $175,000,000 at the Closing Time; or
(II)
PURCHASER WOULD BE UNABLE TO COMPLETE THE
PURCHASE SUBSTANTIALLY IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
40
(B)
PRIOR TO PURCHASER TERMINATING THE AGREEMENT
PURSUANT TO SECTION 6.1(A), VENDOR SHALL HAVE THE RIGHT TO CAUSE PURCHASER TO
NEGOTIATE IN GOOD FAITH FOR A PERIOD OF TEN (10) DAYS TO COMPLETE THE PURCHASE
BY INTER ALIA, REDUCING THE PURCHASE PRICE.
(C)
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, 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, except:
(i)
the representations and warranties in
Sections 4.1, 4.2(a-d), 4.3, 4.4, 4.5(a-d), 4.5(e)(i) and 4.5(f)(i) and the
indemnities related thereto shall survive for an indefinite period from the
Closing;
(ii)
the representations and warranties in
Section 4.18 and the indemnities related thereto and 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 for Taxes under the Tax Act or under any other Applicable Laws
imposing Taxes can be made against the Corporation or the Subsidiaries in
respect of the dates or periods covered by those representations and warranties;
and
(B)
the date on which the period for an appeal
from an assessment, reassessment or other determination of those Taxes, or
decision