6.2) FOR ANY CONSEQUENTIAL,
SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR SIMILAR ITEMS (INCLUDING DIMINUTION
OF VALUE OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY RELATING TO A BREACH OR
ALLEGED BREACH HEREOF); PROVIDED THAT SUCH LIMITATION WITH RESPECT TO LOST
PROFITS SHALL NOT LIMIT EITHER PARTY'S RIGHT TO RECOVER CONTRACT DAMAGES IN
CONNECTION WITH THE OTHER PARTY'S FAILURE TO CLOSE IN VIOLATION OF THIS
AGREEMENT.
(I)
TREATMENT OF PAYMENTS.
TO THE EXTENT PERMITTED BY LAW, THE
PARTIES AGREE TO TREAT PAYMENTS MADE UNDER THIS ARTICLE VI AS ADJUSTMENTS TO THE
PURCHASE PRICE.
ARTICLE VII.
CONDITIONS TO THE CLOSING
SECTION 7.1
CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE
CLOSING.
THE RESPECTIVE OBLIGATIONS OF EACH PARTY TO THIS AGREEMENT TO EFFECT
THE ACQUISITION SHALL BE SUBJECT TO THE SATISFACTION AT OR PRIOR TO THE CLOSING
OF THE FOLLOWING CONDITION:
NO TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION OR OTHER ORDER ISSUED BY ANY COURT OF COMPETENT
JURISDICTION OR GOVERNMENTAL OR REGULATORY AUTHORITY OR OTHER LEGAL OR
REGULATORY RESTRAINT OR PROHIBITION PREVENTING THE CONSUMMATION OF THE
ACQUISITION SHALL BE IN EFFECT; NOR SHALL THERE BE ANY ACTION TAKEN, OR ANY LAW
OR ORDER ENACTED, ENTERED, ENFORCED OR DEEMED APPLICABLE TO THE ACQUISITION OR
THE OTHER TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS AGREEMENT THAT WOULD
PROHIBIT THE CONSUMMATION OF THE ACQUISITION.
41
SECTION 7.2
ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE SELLERS.
THE
OBLIGATIONS OF THE SELLERS TO CONSUMMATE THE ACQUISITION AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE SUBJECT TO THE SATISFACTION
AT OR PRIOR TO THE CLOSING OF EACH OF THE FOLLOWING CONDITIONS, ANY OF WHICH MAY
BE WAIVED, IN WRITING, EXCLUSIVELY BY THE SELLERS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF ACQUIRER CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN
ALL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND SHALL BE ACCURATE IN ALL
MATERIAL RESPECTS AS OF THE CLOSING DATE AS IF MADE ON AND AS OF THE CLOSING
DATE (OTHER THAN REPRESENTATIONS AND WARRANTIES WHICH BY THEIR EXPRESS TERMS ARE
MADE SOLELY AS OF A SPECIFIED EARLIER DATE, WHICH SHALL BE ACCURATE AS OF SUCH
SPECIFIED EARLIER DATE); PROVIDED, HOWEVER, THAT, FOR PURPOSES OF DETERMINING
THE ACCURACY OF SUCH REPRESENTATIONS AND WARRANTIES, ALL QUALIFICATIONS AND
EXCEPTIONS REFERRING TO A "MATERIAL ADVERSE CHANGE IN THE BUSINESS OR CONDITION
OF ACQUIRER" OR A "MATERIAL ADVERSE EFFECT ON ACQUIRER" AND OTHER MATERIALITY
QUALIFICATIONS AND MATERIALITY EXCEPTIONS CONTAINED IN SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE DISREGARDED.
(B)
PERFORMANCE.
ACQUIRER SHALL HAVE PERFORMED AND COMPLIED WITH IN
ALL MATERIAL RESPECTS EACH AGREEMENT, COVENANT AND OBLIGATION REQUIRED BY THIS
AGREEMENT TO BE SO PERFORMED OR COMPLIED WITH BY ACQUIRER AT OR BEFORE THE
CLOSING.
(C)
ACQUIRER OFFICERS' CERTIFICATES.
ACQUIRER SHALL HAVE DELIVERED TO
THE SELLERS CERTIFICATES, DATED THE CLOSING DATE AND EXECUTED BY THE PRESIDENT
OR CHIEF EXECUTIVE OFFICER OF THE ACQUIRER, SUBSTANTIALLY IN THE FORM SET FORTH
IN EXHIBIT B-1 HERETO (THE "ACQUIRER OFFICERS' CERTIFICATE"), CERTIFYING THAT
THE MATTERS SET FORTH IN SECTION 7.2(A) AND