OR PARTIES SPECIFYING THE PROVISION HEREOF
PURSUANT TO WHICH SUCH TERMINATION IS MADE, AND THIS AGREEMENT SHALL BECOME VOID
AND HAVE NO EFFECT, EXCEPT THAT THE AGREEMENTS CONTAINED IN THIS ARTICLE IX, IN
SECTIONS 7.8 (FEES), 7.9 (PUBLICITY), 8.4 (DUE DILIGENCE INDEMNITY) AND IN
ARTICLES XI (OTHER THAN SECTION 11.1) AND XII SHALL SURVIVE THE TERMINATION
HEREOF. NOTHING CONTAINED IN THIS SECTION SHALL RELIEVE ANY PARTY FROM LIABILITY
FOR LOSSES ACTUALLY INCURRED AS A RESULT OF ANY BREACH OF THIS AGREEMENT.
64
9.5
AMENDMENT. THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT BY
AN INSTRUMENT IN WRITING SIGNED BY OR ON BEHALF OF ALL THE PARTIES HERETO.
9.6
WAIVER. PFC, GP AND THE COMPANY ON THE ONE HAND, OR BUYER, ON THE
OTHER, MAY:
(A) WAIVE ANY INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES OF
THE OTHER CONTAINED HEREIN OR IN ANY DOCUMENT, CERTIFICATE, OR WRITING DELIVERED
PURSUANT HERETO, OR (B) WAIVE COMPLIANCE BY THE OTHER WITH ANY OF THE OTHER'S
AGREEMENTS OR FULFILLMENT OF ANY CONDITIONS TO ITS OWN OBLIGATIONS CONTAINED
HEREIN, BUT SUCH WAIVER OR FAILURE TO INSIST UPON STRICT COMPLIANCE WITH SUCH
OBLIGATION, COVENANT, AGREEMENT OR CONDITION SHALL NOT OPERATE AS A WAIVER OF,
OR ESTOPPEL WITH RESPECT TO, ANY OTHER FAILURE. ANY AGREEMENT ON THE PART OF A
PARTY HERETO TO ANY SUCH WAIVER SHALL BE VALID ONLY IF SET FORTH IN AN
INSTRUMENT IN WRITING SIGNED BY OR ON BEHALF OF SUCH PARTY. NO FAILURE OR DELAY
BY A PARTY HERETO IN EXERCISING ANY RIGHT, POWER, OR PRIVILEGE HEREUNDER SHALL
OPERATE AS A WAIVER THEREOF NOR SHALL ANY SINGLE OR PARTIAL EXERCISE THEREOF
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER
RIGHT, POWER, OR PRIVILEGE.
ARTICLE X
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
10.1
SURVIVAL.
(A)
EACH OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS THAT ARE
COVERED BY THE INDEMNIFICATION AGREEMENTS HEREIN SHALL SURVIVE THE CLOSING FOR
THE TIME PERIODS EXPRESSLY SET FORTH BELOW (EACH SUCH TIME PERIOD AND THE TIME
PERIOD, A "SURVIVAL PERIOD").
(B)
REPRESENTATIONS AND WARRANTIES.
(1)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF PFC, GP AND THE
COMPANY SET FORTH IN SECTIONS 3.1 (ORGANIZATION), 3.2 (TITLE TO INTERESTS), 3.3
(AUTHORITY), 3.4 (VALID AND BINDING AGREEMENT), 3.5 (NON-CONTRAVENTION), 4.1
(ORGANIZATION), 4.2 (GOVERNING DOCUMENTS), 4.3 (CAPITAL STRUCTURE), 4.4
(AUTHORITY, VALID AND BINDING AGREEMENT), 4.5 (NON-CONTRAVENTION, CONSENTS AND
APPROVALS), 4.6 (OWNERSHIP; CAPITALIZATION OF SUBSIDIARIES), 4.14 (TAXES), 4.25
(EMPLOYEE RELATED MATTERS), AND 4.26 (BROKERS), SHALL SURVIVE THE CLOSING UNTIL
THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS PERIOD (SUCH
REPRESENTATIONS AND WARRANTIES, THE "FUNDAMENTAL COMPANY REPRESENTATIONS"), AND
ALL REMAINING REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLES III AND IV
SHALL TERMINATE AT 5:00 P.M., DALLAS, TEXAS TIME ON THE DATE THAT IS THE 90TH
DAY FOLLOWING THE FIRST ANNIVERSARY OF THE CLOSING DATE (THE "EXPIRATION DATE");
AND
(2)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF BUYER SET FORTH IN
SECTIONS 5.1 (ORGANIZATION), 5.2 (POWER AND AUTHORITY), 5.3 (VALID AND BINDING
AGREEMENT), 5.4 (NON-CONTRAVENTION), 5.8 (INVESTMENT EXPERIENCE), 5.9
(ACCREDITED INVESTOR;