INCLUDING SECTION 5.10, OR FOR ANY OTHER PURPOSE HEREUNDER OTHER THAN
SECTION 2.02(B).
SECTION 9.07.
TAX MATTERS.
ANYTHING IN THIS ARTICLE IX TO THE CONTRARY
NOTWITHSTANDING, THE RIGHTS AND OBLIGATIONS OF THE PARTIES WITH RESPECT TO
INDEMNIFICATION FOR ANY AND ALL TAX MATTERS SHALL BE SOLELY GOVERNED BY
ARTICLE VII AND SHALL NOT BE SUBJECT TO THE PROVISIONS OF THIS ARTICLE IX.
SECTION 9.08.
GENERAL.
THE INDEMNIFICATION PROVISIONS OF THIS ARTICLE IX
(A) SHALL APPLY WITHOUT REGARD TO, AND SHALL NOT BE SUBJECT TO, ANY LIMITATION
BY REASON OF SET-OFF, LIMITATION OR OTHERWISE AND (B) ARE INTENDED TO BE
COMPREHENSIVE AND NOT TO BE LIMITED BY ANY REQUIREMENTS OF LAW CONCERNING
PROMINENCE OF LANGUAGE OR WAIVER OF ANY LEGAL RIGHT UNDER ANY
80
LAW (INCLUDING RIGHTS UNDER ANY WORKERS' COMPENSATION STATUTE OR SIMILAR STATUTE
CONFERRING IMMUNITY FROM SUIT).
SECTION 9.09.
CALCULATION OF LOSSES.
ANY QUALIFICATION AS TO MATERIALITY
AND/OR MATERIAL ADVERSE EFFECT CONTAINED IN THE REPRESENTATIONS AND WARRANTIES
SET FORTH HEREIN SHALL BE DISREGARDED FOR PURPOSES OF CALCULATING THE AMOUNT OF
LOSSES UNDER THIS AGREEMENT.
THE AMOUNT OF ANY LOSSES FOR WHICH INDEMNIFICATION
IS PROVIDED UNDER ARTICLE VII AND THIS ARTICLE IX SHALL BE NET OF ANY AMOUNTS
ACTUALLY RECOVERED BY THE INDEMNIFIED PARTY UNDER INSURANCE POLICIES OF THE
SELLER OR OTHERWISE WITH RESPECT TO SUCH LOSSES (NET OF ANY TAX OR EXPENSES
INCURRED IN CONNECTION WITH SUCH RECOVERY, AND IT BEING UNDERSTOOD THAT SUCH
INDEMNIFIED PARTY SHALL NOT HAVE ANY OBLIGATION TO SEEK ANY SUCH RECOVERIES).
SECTION 9.10.
SUCCESSORS AND ASSIGNS.
IF THE SELLER, EITHER PURCHASER OR ANY
OF SUCH PARTY'S RESPECTIVE SUCCESSORS OR ASSIGNS (I) CONSOLIDATES WITH OR MERGES
WITH OR INTO ANY OTHER PERSON AND SHALL NOT BE THE CONTINUING OR SURVIVING
CORPORATION OR ENTITY OF SUCH CONSOLIDATION OR MERGER OR (II) TRANSFERS OR
CONVEYS ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES AND ASSETS TO ANY PERSON,
THEN, AND IN EACH SUCH CASE, TO THE EXTENT NECESSARY, PROPER PROVISION SHALL BE
MADE SO THAT THE SUCCESSORS AND ASSIGNS OF SUCH PARTY SHALL ASSUME THE
OBLIGATIONS SET FORTH IN THIS ARTICLE IX.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
SECTION 10.01.
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR
TO THE CLOSING:
(A)
BY EITHER THE SELLER OR THE PURCHASERS IF THE CLOSING SHALL NOT HAVE
OCCURRED BY SEPTEMBER 30, 2008; PROVIDED, HOWEVER, THAT THE RIGHT TO TERMINATE
THIS AGREEMENT UNDER THIS SECTION 10.01(A) SHALL NOT BE AVAILABLE TO ANY PARTY
WHOSE FAILURE TO FULFILL ANY OBLIGATION UNDER THIS AGREEMENT SHALL HAVE BEEN THE
CAUSE OF, OR SHALL HAVE RESULTED IN, THE FAILURE OF THE CLOSING TO OCCUR ON OR
PRIOR TO SUCH DATE;
(B)
BY EITHER THE PURCHASERS OR THE SELLER IN THE EVENT THAT ANY GOVERNMENTAL
ORDER RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL HAVE BECOME FINAL AND NONAPPEALABLE;
(C)
BY THE SELLER IF THE PURCHASERS SHALL HAVE BREACHED ANY OF THEIR
REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS CONTAINED IN THIS AGREEMENT
WHICH WOULD GIVE RISE TO THE FAILURE OF