BUYER SHALL NOT
SETTLE ANY SUCH TAX AUDIT OR SIMILAR PROCEEDING WITHOUT THE PRIOR WRITTEN
CONSENT OF SELLER.
THIS SECTION 5(I)(V) RATHER THAN SECTION 6(E) SHALL APPLY TO
TAX MATTERS.
(J)
ENVIRONMENTAL PERMITS.
BUYER SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN OR EFFECT THE TRANSFER AS PROMPTLY AS PRACTICABLE OF ALL
PERMITS REQUIRED UNDER ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS TO CONDUCT
THE TARGET BUSINESS AS PRESENTLY CONDUCTED BY
41
SELLER.
SELLER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH
BUYER IN OBTAINING OR TRANSFERRING SUCH PERMITS, INCLUDING BY PROVIDING BUYER
AND/OR THE APPROPRIATE GOVERNMENTAL AUTHORITY, AS APPLICABLE, ALL REQUIRED
INFORMATION AND/OR DOCUMENTS IN CONNECTION THEREWITH.
(K)
PARTS BUYBACK.
AFTER THE CLOSING, TO THE EXTENT SELLER REPURCHASES
FROM ANY DESIGNATED TERMINATED DEALER ANY REPAIR PARTS WHICH MEET THE
REQUIREMENTS OF THE TARGET BUSINESS' RETURN PARTS POLICY, EXCEPT FOR THE 10%
DOLLAR LIMITATION, BUYER AGREES TO PROMPTLY PURCHASE FROM SELLER SUCH REPAIR
PARTS AT 85% OF THE THEN CURRENT DEALER NET PRICE.
(L)
PREPARATION OF CLOSING STATEMENTS.
SELLER SHALL PREPARE THE
CLOSING STATEMENTS (I) USING METHODOLOGY CONSISTENT WITH THE TARGET BUSINESS
FINANCIAL STATEMENTS, (II) SUCH THAT THEY PRESENT FAIRLY THE CLOSING INVENTORY
AND CLOSING NET WORKING CAPITAL, AS APPLICABLE, AND (III) ARE CONSISTENT WITH
AND BASED UPON THE BOOKS AND RECORDS OF THE SELLER PARENT AND TARGET BUSINESS AS
OF THE CLOSING; PROVIDED THAT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, THE SOLE REMEDIES OF BUYER FOR ANY BREACH OF OR FAILURE BY SELLER TO
PERFORM THE COVENANTS AND OBLIGATIONS SET FORTH IN THIS SECTION 5(L) SHALL BE
THE REMEDIES AVAILABLE TO SELLER UNDER SECTION 2(G).
SECTION 6
REMEDIES FOR BREACH OF THIS AGREEMENT;
INDEMNITY
(A)
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES OF THE PARTIES
CONTAINED HEREIN AND IN THE TRANSACTION AGREEMENTS SHALL SURVIVE THE CLOSING FOR
A PERIOD OF TWO (2) YEARS AFTER THE CLOSING; PROVIDED THAT (I) THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTIONS 3(A), 3(B), 4(A) AND
4(B) SHALL SURVIVE IN PERPETUITY AND NOT EXPIRE, (II) THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN SECTIONS 3(C), 3(E) AND 3(S) SHALL SURVIVE FOR A PERIOD
OF FIVE YEARS AFTER THE CLOSING, AND (III) THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTIONS 3(I) AND 3(R) SHALL SURVIVE UNTIL THE EXPIRATION OF ANY
APPLICABLE STATUTE OF LIMITATIONS (AFTER GIVING EFFECT TO ANY EXTENSION OR
WAIVER) PLUS 45 DAYS.
NEITHER BUYER NOR SELLER SHALL HAVE ANY LIABILITY WITH
RESPECT TO CLAIMS FIRST ASSERTED IN CONNECTION WITH ANY REPRESENTATION OR
WARRANTY AFTER THE SURVIVAL PERIOD SPECIFIED THEREFOR IN THIS SECTION 6(A);
PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL BE
DEEMED TO LIMIT ANY PARTY'S RIGHTS TO RECOVER ANY OR ALL LOSSES INCURRED OR
SUFFERED BY IT RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH FRAUD OR
INTENTIONAL MISREPRESENTATION, IT BEING UNDERSTOOD AND AGREED THAT THE RIGHT TO
RECOVER SUCH LOSSES SHALL SURVIVE FOREVER.
(B)
INDEMNIFICATION BY SELLER.
SELLER AGREES TO DEFEND AND INDEMNIFY
THE BUYER INDEMNIFIED PARTIES AGAINST, AND TO HOLD THE BUYER INDEMNIFIED PARTIES
HARMLESS FROM, ANY AND ALL LOSSES INCURRED