by this Agreement shall be subject to
the satisfaction at or prior to the Closing Date of the following conditions:
(A)
NO INJUNCTION.
AT THE CLOSING DATE, THERE
SHALL BE NO INJUNCTION, RESTRAINING ORDER OR DECREE OF ANY NATURE OF ANY
GOVERNMENTAL AUTHORITY OF COMPETENT JURISDICTION THAT IS IN EFFECT THAT
RESTRAINS OR PROHIBITS THE CONSUMMATION OF THE PURCHASE; PROVIDED, HOWEVER, THAT
THE PARTY INVOKING THIS CONDITION SHALL USE THEIR BEST EFFORTS TO HAVE SUCH
INJUNCTION, ORDER OR DECREE VACATED OR DENIED.
(B)
REGULATORY AUTHORIZATIONS.
THE APPLICABLE
WAITING PERIODS SPECIFIED UNDER THE HSR ACT WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL HAVE
56
lapsed or been terminated and all clearances, approvals or confirmations
required pursuant to the applicable requirements of other merger or investment
control statutes or regulations or those of any other Governmental Antitrust
Authority set forth on Schedule 7.1(b) shall have been obtained.
7.2
Conditions Precedent to Obligation of the
Seller.
The obligation of the Seller to consummate the transactions provided
for in this Agreement is subject to fulfillment of each of the following
conditions:
(A)
ACCURACY OF THE BUYER'S REPRESENTATIONS AND
WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES OF THE BUYER CONTAINED IN THIS
AGREEMENT THAT ARE QUALIFIED AS TO MATERIALITY SHALL BE TRUE AND CORRECT AND THE
REPRESENTATIONS AND WARRANTIES OF THE BUYER SET FORTH IN THIS AGREEMENT AND THAT
ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, IN EACH
CASE ON THE DATE OF THIS AGREEMENT AND ON THE CLOSING DATE AS THOUGH MADE ON THE
CLOSING DATE, EXCEPT THOSE REPRESENTATIONS AND WARRANTIES THAT ADDRESS MATTERS
ONLY AS OF A PARTICULAR DATE OR ONLY WITH RESPECT TO A SPECIFIC PERIOD OF TIME,
WHICH NEED ONLY BE TRUE AND ACCURATE (OR TRUE AND ACCURATE IN ALL MATERIAL
RESPECTS, AS APPLICABLE) AS OF SUCH DATE OR WITH RESPECT TO SUCH PERIOD;
PROVIDED, HOWEVER, THAT A BREACH OF ANY OF THE FOREGOING REPRESENTATIONS AND
WARRANTIES SHALL NOT CONSTITUTE THE NON-FULFILLMENT OF THE FOREGOING CONDITION
(X) IF SUCH BREACH IS CURED PRIOR TO THE CLOSING OR THE TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS OR (Y) UNLESS SUCH BREACH, INDIVIDUALLY
OR IN THE AGGREGATE WITH ALL OTHER BREACHES, IMPAIRS THE EXECUTION, DELIVERY OR
PERFORMANCE BY THE BUYER OF THIS AGREEMENT OR THE CONSUMMATION BY THE BUYER OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
(B)
PERFORMANCE.
THE BUYER SHALL HAVE PERFORMED
AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL AGREEMENTS, OBLIGATIONS AND
COVENANTS CONTAINED IN THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT AT
OR PRIOR TO CLOSING.
(C)
OFFICER'S CERTIFICATE.
THE SELLER SHALL
HAVE RECEIVED A CERTIFICATE SIGNED BY AN OFFICER OF THE BUYER CERTIFYING TO THE
FULFILLMENT OF THE CONDITIONS SPECIFIED IN SECTIONS 7.2(A) AND (B).
(D)
[INTENTIONALLY OMITTED.]
(E)
OPINION OF COUNSEL.
THE SELLER SHALL HAVE
RECEIVED AN OPINION OF STEEL HECTOR & DAVIS LLP, DATED THE CLOSING DATE AND
ADDRESSED TO THE SELLER, SUBSTANTIALLY IN THE FORM OF EXHIBIT B HERETO.
7.3
Conditions Precedent to Obligation of