OF TERMINATION.
EXISTING SECTION 11.1 (METHODS OF
TERMINATION) DELETED IN ITS ENTIRETY AND THE FOLLOWING SHALL BE INSERTED IN LIEU
THEREOF:
"11.1
METHOD OF TERMINATION.
THIS AGREEMENT MAY BE TERMINATED BY MUTUAL
WRITTEN AGREEMENT OF THE SELLER AND THE PURCHASER PRIOR TO THE CLOSING DATE"
(G)
SURVIVAL.
EXISTING SECTION 12.2 (SURVIVAL) SHALL BE DELETED IN
ITS ENTIRETY AND THE FOLLOWING SHALL BE INSERTED IN LIEU THEREOF:
"12.2
SURVIVAL.
EXCEPT FOR (A) THE PROVISIONS SET FORTH IN ARTICLES II
(PURCHASE AND SALE), VIII (MUTUAL RELEASE) AND XII (MISCELLANEOUS), WHICH SHALL
SURVIVE THE CLOSING; AND (B) SECTIONS 6.4 (ESSENTIAL SERVICES), 6.9 (ALLOCATION
OF PURCHASE PRICE) AND 6.13 (FURTHER ASSURANCES), WHICH SHALL SURVIVE FOR NINETY
(90) DAYS FOLLOWING THE CLOSING,
THE STATEMENTS, CERTIFICATIONS,
REPRESENTATIONS AND WARRANTIES MADE HEREBY BY THE PARTIES TO THIS AGREEMENT, AND
THEIR RESPECTIVE COVENANTS, AGREEMENTS AND OBLIGATIONS TO BE PERFORMED PURSUANT
TO THE TERMS HEREOF, SHALL NOT SURVIVE, AND SHALL TERMINATE AND BE OF NO FURTHER
EFFECT FOLLOWING THE CLOSING DATE; PROVIDED, HOWEVER, THAT NOTHING HEREIN
CONTAINED SHALL MODIFY OR BE CONSTRUED TO MODIFY IN ANY RESPECT WHATSOEVER OR
LIMIT THE DURATION OF ANY COVENANT, AGREEMENT OR OBLIGATION TO BE PERFORMED BY
ANY PARTY HERETO AFTER THE CLOSING DATE PURSUANT TO THE PROVISIONS OF THIS
AGREEMENT."
4.
CERTAIN UNDERTAKINGS REGARDING PAYMENT OF PURCHASE PRICE.
THE
COUNSEL ENTITIES HEREBY IRREVOCABLY AND UNCONDITIONALLY UNDERTAKE AND AGREE TO
BE JOINTLY AND SEVERALLY LIABLE TO THE SELLER FOR THE DUE AND PUNCTUAL PAYMENT
IN FULL OF THE CASH PORTION OF THE PURCHASE PRICE (INCLUDING, BUT NOT LIMITED
TO, ANY ADJUSTMENTS PURSUANT TO SECTION 2.3(C) AND 2.3(D) OF THE ASSET PURCHASE
AGREEMENT (POST-CLOSING ADJUSTMENTS TO PURCHASE PRICE)) WHEN THE SAME SHALL
BECOME DUE AND PAYABLE IN ACCORDANCE WITH THE APPROPRIATE PROVISIONS OF THE
ASSET PURCHASE AGREEMENT.
IN ADDITION, EACH OF THE COUNSEL ENTITIES HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY DEFENSES IT MAY NOW OR HEREAFTER HAVE
IN ANY WAY RELATING TO ITS OBLIGATIONS UNDER THIS SECTION 4, EXCEPT FOR THE
PROVISIONS OF SECTION 2.3(C) AND 2.3(D) OF THE ASSET PURCHASE AGREEMENT
(POST-CLOSING ADJUSTMENTS TO PURCHASE PRICE) AND THE CONDITIONS TO CLOSING
SPECIFIED IN SECTIONS 9.3 (NO INJUNCTION), 9.6 (BANKRUPTCY COURT APPROVAL), 9.8
(NO CASUALTY)
6
AND 9.9 (EXECUTION OF OTHER AGREEMENTS) OF THE ASSET PURCHASE AGREEMENT.
EXCEPT
WITH RESPECT TO THE UNDERTAKINGS AND AGREEMENTS AS TO PAYMENT OF THE CASH
PORTION OF THE PURCHASE PRICE AS PROVIDED FOR IN THIS SECTION 4, NOTHING IN THIS
SECTION 4 SHALL AFFECT ANY OTHER STATEMENT, CERTIFICATION, REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT OF, OR OBLIGATION TO BE PERFORMED BY, ANY OF THE
COUNSEL ENTITIES, WHETHER INDIVIDUALLY OR COLLECTIVELY, PURSUANT TO THE TERMS OF
THE ASSET PURCHASE AGREEMENT, AS AMENDED BY THIS AMENDMENT.
THE PROVISIONS OF
THIS SECTION 4 SHALL SURVIVE THE CLOSING.
5.
CONDUCT OF BUSINESS.
(A)
THE PURCHASER SHALL PERFORM THE MANAGEMENT OF THE BUSINESS RELATED
TO THE NON-TRANSFERRED ASSETS IN A PROFESSIONAL MANNER AND IN ACCORDANCE WITH
APPLICABLE PROFESSIONAL OR INDUSTRY STANDARDS THROUGHOUT THE TERM (AS DEFINED IN
THE MANAGEMENT AGREEMENT) OF THE MANAGEMENT AGREEMENT