TO THE
TRANSACTIONS CONTEMPLATED BY THE JOINT VENTURE AGREEMENTS UNDER THE HSR ACT, IF
APPLICABLE, SHALL HAVE BEEN TERMINATED OR EXPIRED AND ALL OTHER GOVERNMENTAL
APPROVALS NECESSARY FOR CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY JOINT
VENTURE AGREEMENTS SHALL HAVE BEEN OBTAINED OR MADE AND BE IN EFFECT AT THE
CLOSING DATE, EXCEPT FOR ANY SUCH GOVERNMENTAL APPROVALS, THE FAILURE OF WHICH
TO OBTAIN OR MAKE WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; PROVIDED THAT NO PARTY SHALL BE
REQUIRED TO COMMENCE OR DEFEND ANY ACTION BEFORE ANY GOVERNMENTAL AUTHORITY IN
ORDER TO SATISFY THIS CONDITION;
20
(C)
EACH OF THE PARTIES TO EACH OF THE JOINT VENTURE AGREEMENTS (OTHER
THAN THIS AGREEMENT) SHALL HAVE DULY DELIVERED TO EACH OF THE PARTIES THERETO
EACH OF THE JOINT VENTURE AGREEMENTS (OTHER THAN THIS AGREEMENT) TO WHICH IT IS
A PARTY;
(D)
THE REPRESENTATIONS AND WARRANTIES OF EACH OTHER PARTY AND THE
COMPANY CONTAINED IN THIS AGREEMENT THAT ARE QUALIFIED AS TO MATERIALITY OR
WORDS OF SIMILAR IMPORT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, AND
THOSE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL RESPECTS, IN EACH CASE,
AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE AS IF MADE AT THE CLOSING DATE,
EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES WHICH ARE MADE AS OF A SPECIFIC
DATE, WHICH REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND CORRECT IN
ALL MATERIAL RESPECTS OR TRUE AND CORRECT IN ALL RESPECTS, AS THE CASE MAY BE,
AS OF SUCH DATE; AND
(E)
EACH OTHER PARTY HERETO SHALL HAVE PERFORMED OR COMPLIED WITH IN
ALL MATERIAL RESPECTS EACH COVENANT AND AGREEMENT REQUIRED IN THIS AGREEMENT TO
BE PERFORMED BY IT AT OR PRIOR TO THE CLOSING.
7.2
Waiver of Conditions Precedent.
By proceeding on the Closing Date
and consummating the Closing, each Party shall be deemed conclusively to have
accepted or waived fulfillment of all such conditions and receipt of all such
deliverables, unless written notice to the contrary is provided to the other
Parties at such time.
ARTICLE 8
TERMINATION; SURVIVAL
8.1
Termination.
(A)
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR TO THE CLOSING
BY:
(I)
THE MUTUAL WRITTEN CONSENT OF THE PARTIES;
(II)
ANY PARTY, BY GIVING WRITTEN NOTICE OF SUCH TERMINATION TO THE
OTHER PARTY, IF THE OTHER PARTY SHALL HAVE MATERIALLY BREACHED ANY OF ITS
REPRESENTATIONS OR WARRANTIES OR BREACHED ANY OF ITS MATERIAL OBLIGATIONS OR
AGREEMENTS UNDER THIS AGREEMENT AND SUCH BREACH HAS NOT BEEN CURED WITHIN 30
DAYS FOLLOWING THE DELIVERY OF SUCH WRITTEN NOTICE BY A NON-BREACHING PARTY TO
THE BREACHING PARTY;
(III)
ANY PARTY, IF (A) ANY GOVERNMENTAL AUTHORITY, THE RECEIPT OF A
GOVERNMENTAL APPROVAL FROM WHICH IS A CONDITION PRECEDENT TO THE CONSUMMATION OF
THE CLOSING, SHALL HAVE DETERMINED NOT TO GRANT ANY SUCH GOVERNMENTAL APPROVAL
(OR IMPOSES CONDITIONS WITH RESPECT THERETO SUCH THAT THE CONDITION PRECEDENT
SET FORTH IN SECTION 7.1(B) IS INCAPABLE OF BEING SATISFIED) AND