CLOSING, PURCHASER MAY ELECT EITHER
TO:
(I) TERMINATE THIS AGREEMENT OR (II) WAIVE SUCH TITLE OBJECTIONS, IN WHICH
EVENT SUCH TITLE OBJECTIONS SHALL BE DEEMED ADDITIONAL "PERMITTED EXCEPTIONS"
AND THE CLOSING SHALL OCCUR AS HEREIN PROVIDED (A) WITH A REDUCTION OF OR CREDIT
AGAINST THE PURCHASE PRICE AS THE PARTIES MAY AGREE OR (B) SUBJECT TO
PURCHASER'S RIGHT TO INDEMNIFICATION PURSUANT TO SECTION 9.2.
(C)
IF ON THE CLOSING DATE THERE ARE ANY TITLE OBJECTIONS WHICH SELLER
HAS ELECTED TO REMOVE, SELLER MAY USE ANY PORTION OF THE PURCHASE PRICE TO
SATISFY THE SAME; PROVIDED SELLER SHALL EITHER DELIVER TO PURCHASER AT CLOSING
INSTRUMENTS SUFFICIENT TO CAUSE SUCH TITLE OBJECTIONS TO BE RELEASED OF RECORD,
TOGETHER WITH THE COST OF RECORDING OR FILING SUCH INSTRUMENTS, OR CAUSE THE
TITLE COMPANY TO OMIT AS AN EXCEPTION, THE SAME, WITHOUT ANY ADDITIONAL COST TO
PURCHASER, WHETHER SUCH INSURANCE IS MADE AVAILABLE IN CONSIDERATION OF PAYMENT,
BONDING, INDEMNITY OF SELLER OR OTHERWISE.
37
5.9
NO RECORDING.
THE PROVISIONS OF THIS AGREEMENT SHALL NOT
CONSTITUTE A LIEN ON THE REAL PROPERTY.
NEITHER PURCHASER NOR ANY OF ITS
REPRESENTATIVES SHALL RECORD OR FILE THIS AGREEMENT OR ANY NOTICE OR MEMORANDUM
HEREOF IN ANY PUBLIC RECORDS.
IF PURCHASER BREACHES THE FOREGOING PROVISION,
THIS AGREEMENT SHALL, AT SELLER'S ELECTION, TERMINATE.
5.10
PRICE DECREASE NOTIFICATION.
SELLER SHALL NOTIFY PURCHASER WITHIN
THREE BUSINESS DAYS AFTER OFFERING ANY PRICE DECREASE IN EXCESS OF 1% TO ANY
CUSTOMER, WHICH NOTICE SHALL INCLUDE THE NAME OF THE CUSTOMER, THE PRODUCTS FOR
WHICH THE DECREASE WAS MADE AND THE AMOUNT OF THE DECREASE.
ARTICLE VI
CONDITIONS TO CLOSING
6.1
CONDITIONS TO THE OBLIGATIONS OF SELLER AND PURCHASER.
THE
OBLIGATIONS OF SELLER AND PURCHASER TO CONSUMMATE THE ACQUISITION ARE SUBJECT TO
THE SATISFACTION OR, IF PERMITTED BY APPLICABLE LAW, WAIVER OF THE FOLLOWING
CONDITIONS ON OR PRIOR TO THE CLOSING DATE:
(A)
NO INJUNCTION.
NO PROVISION OF ANY APPLICABLE LAW SHALL BE IN
EFFECT AND NO INTERLOCUTORY, APPEALABLE OR FINAL ORDER SHALL HAVE BEEN ISSUED
THAT PROHIBITS OR RESTRICTS THE CONSUMMATION OF THE ACQUISITION.
(B)
HSR.
ALL WAITING PERIODS APPLICABLE TO THE CONSUMMATION OF THE
ACQUISITION UNDER THE HSR ACT SHALL HAVE EXPIRED OR BEEN TERMINATED, AND NO
ACTION SHALL HAVE BEEN INSTITUTED BY THE DEPARTMENT OF JUSTICE OR THE FEDERAL
TRADE COMMISSION CHALLENGING OR SEEKING TO ENJOIN THE CONSUMMATION OF THE
ACQUISITION, WHICH ACTION SHALL NOT HAVE BEEN WITHDRAWN OR TERMINATED.
6.2
CONDITIONS TO OBLIGATION OF SELLER.
THE OBLIGATION OF SELLER TO
CONSUMMATE THE ACQUISITION IS SUBJECT TO THE FULFILLMENT AT OR PRIOR TO THE
CLOSING OF THE FOLLOWING CONDITIONS, ANY ONE OR MORE OF WHICH MAY BE WAIVED IN
WHOLE OR IN PART BY SELLER:
(A)
ACCURACY OF REPRESENTATIONS AND WARRANTIES.
EACH OF THE
REPRESENTATIONS AND WARRANTIES OF PURCHASER CONTAINED IN THIS AGREEMENT SHALL
HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS (OTHER THAN REPRESENTATIONS
AND WARRANTIES SUBJECT TO "MATERIALITY" QUALIFIERS, WHICH SHALL BE TRUE AND
CORRECT AS STATED) WHEN MADE AND ON AND AS OF THE CLOSING AS IF