6 HAVE BEEN FULFILLED, THE EXHIBITS
AND SCHEDULES SHALL BE DEEMED TO INCLUDE ONLY THAT INFORMATION CONTAINED THEREIN
ON THE DATE OF THIS AGREEMENT AND SHALL BE DEEMED TO EXCLUDE INFORMATION
CONTAINED IN ANY SUCH SUPPLEMENT OR AMENDMENT THERETO, EXCEPT TO THE EXTENT THAT
THEY REFLECT AN EVENT OR CONDITION THAT WOULD BE BENEFICIAL TO THE TRANSFEREE;
PROVIDED, HOWEVER, THAT IF THE CLOSING SHALL OCCUR, THEN MATTERS DISCLOSED
PURSUANT TO ANY SUCH SUPPLEMENT OR AMENDMENT SHALL BE DEEMED INCLUDED IN THE
EXHIBITS AND SCHEDULES AT CLOSING (WITHOUT NECESSITY OF A WRITTEN WAIVER OR
OTHER ACTION ON THE PART OF ANY PARTY) AND SHALL BE DEEMED TO MODIFY THE
APPLICABLE REPRESENTATIONS AND WARRANTIES FOR ALL PURPOSES.
5.4
GOVERNMENTAL PERMITS.
DOE RUN SHALL USE ALL
BEST EFFORTS TO APPLY TO THE RESPECTIVE GOVERNMENTAL ENTITIES IMMEDIATELY UPON
THE EXECUTION OF THIS AGREEMENT TO REQUEST APPROVAL OF THE TRANSFER OF ALL OF
THE GOVERNMENTAL PERMITS, INCLUDING (I) GIVING NOTICE TO THE APPLICABLE FEDERAL,
STATE OR LOCAL REGULATORY AGENCIES WITH RESPECT TO THE CHANGE IN OWNERSHIP OR
CONTROL OR RESPONSIBLE OFFICIALS AT THE REAL PROPERTY, (II) COMPLETING AND
SUBMITTING NOTICES OF TERMINATION, AND (III) TO THE EXTENT NOT TRANSFERRED BY
THE CLOSING DATE, SHALL COOPERATE FULLY WITH TRANSFEREE IN OBTAINING THE
TRANSFER OF SUCH GOVERNMENTAL PERMITS AS PROMPTLY THEREAFTER AS POSSIBLE.
ARTICLE 6
CONDITIONS TO CLOSING
6.1
CONDITIONS TO THE OBLIGATIONS OF THE
TRANSFEREE.
THE OBLIGATIONS OF TRANSFEREE UNDER THIS AGREEMENT SHALL, AT THE
OPTION OF TRANSFEREE, BE SUBJECT TO THE SATISFACTION, ON OR PRIOR TO THE CLOSING
DATE, OF EACH OF THE FOLLOWING CONDITIONS:
(A)
NO MISREPRESENTATION OR BREACH OF COVENANTS AND WARRANTIES.
THERE
SHALL HAVE BEEN NO MATERIAL BREACH BY DOE RUN IN THE PERFORMANCE OF ANY OF ITS
MATERIAL COVENANTS AND AGREEMENTS HEREIN WHICH SHALL NOT HAVE BEEN REMEDIED OR
CURED TO THE SATISFACTION OF THE TRANSFEREE, EXCEPT FOR SUCH BREACHES AS WOULD
NOT, INDIVIDUALLY OR IN THE AGGREGATE, BE LIKELY TO HAVE A MATERIAL ADVERSE
EFFECT; AND THERE SHALL HAVE BEEN DELIVERED TO TRANSFEREE A CLOSING CERTIFICATE
IN A FORM REASONABLY SATISFACTORY TO TRANSFEREE TO SUCH EFFECT, DATED THE
CLOSING DATE, SIGNED BY THE PRESIDENT OR VICE PRESIDENT OF DOE RUN.
(B)
NO RESTRAINT.
NO COURT ORDER SHALL HAVE BEEN ISSUED AND BE IN
EFFECT THAT RESTRAINS OR PROHIBITS ANY MATERIAL TRANSACTION CONTEMPLATED HEREBY.
(C)
NO MATERIAL ADVERSE CHANGE.
NO MATERIAL ADVERSE CHANGE SHALL HAVE
OCCURRED IN THE BUSINESS, ASSETS, OR FINANCIAL CONDITION OF THE BUICK BUSINESS
OR THE BUICK FACILITY, OR IN THE APPLICABLE REQUIREMENTS OF LAW PERTAINING
THERETO.
(D)
CONSENTS.
ALL NECESSARY THIRD PARTY AND GOVERNMENTAL APPROVALS
SHALL HAVE BEEN OBTAINED IN FAVOR OF THE TRANSFEREE FOR THE CONTINUED OPERATION
OF THE BUICK
19
FACILITY IN THE MANNER NOW CONDUCTED, EXCEPT AS PROVIDED IN SCHEDULE 4.1(D) AND
SECTIONS 7.1 AND 7.2.
Notwithstanding the failure of any one or more of the foregoing conditions,
Transferee may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any or all of such conditions and without