AND OBSERVE AND CAUSE SELLER TO PERFORM AND OBSERVE IN ALL MATERIAL RESPECTS ALL
OBLIGATIONS AND CONDITIONS HEREIN REQUIRED TO BE PERFORMED OR OBSERVED BY THEM
OR EITHER OF THEM ON OR PRIOR TO THE CLOSING DATE; AND ECC SHALL DELIVER TO
PURCHASER A CERTIFICATE DATED THE CLOSING OF THE CHIEF EXECUTIVE OFFICE OF ECC,
CERTIFYING AS TO THE CORRECTNESS OF ALL REPRESENTATIONS AND WARRANTIES OF ECC
AND SELLER AS OF SUCH DATE AND AS TO COMPLIANCE WITH PARAGRAPH 7.1 AND THIS
PARAGRAPH 7.2.
7.3
ABSENCE OF MATERIAL CHANGES.
SINCE THE
CONTRACT DATE, THERE SHALL NOT HAVE BEEN ANY MATERIAL ADVERSE CHANGE IN THE
BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS OF SELLER OR IN ITS
PROPERTIES, ASSETS, REVENUES, EARNINGS, INVENTORY, RELATIONSHIPS WITH SUPPLIERS
AND CUSTOMERS, LABOR RELATIONS OR PROSPECTS, AND NONE OF THE SALE ASSETS SHALL
HAVE SUFFERED ANY DESTRUCTION OR DAMAGE BY FIRE, ACCIDENT OR OTHER CASUALTY OR
ACT OF GOD, WHETHER OR NOT COVERED BY INSURANCE, WHICH MATERIALLY AND ADVERSELY
AFFECTS THE CONDUCT OF THE BUSINESS OF SELLER OR THE SALE ASSETS AS A WHOLE.
7.4
NO LITIGATION.
EXCEPT AS DISCLOSED BY
SELLER'S DISCLOSURE SCHEDULES, NO CLAIM, PROCEEDING, INVESTIGATION OR
LITIGATION, EITHER ADMINISTRATIVE OR JUDICIAL, SHALL BE THREATENED OR PENDING
AGAINST ANY OF THE PARTIES HERETO WHICH, IN THE REASONABLE OPINION OF COUNSEL
FOR PURCHASER, PRESENTS A REASONABLE POSSIBILITY THAT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT WOULD BE ENJOINED OR PREVENTED, OR THAT THE RIGHT
OF PURCHASER TO ACQUIRE, RETAIN OR USE THE SALE ASSETS OR CONTINUE IN THE SAME
MANNER THE OPERATIONS AND BUSINESS OF SELLER, IF AND WHEN THE SAME ARE ACQUIRED,
WITHOUT ADDITIONAL COSTS WOULD BE MATERIALLY AND ADVERSELY AFFECTED.
7.5
CONSENTS.
WRITTEN CONSENT TO THE ASSIGNMENT
OF ALL OF ASSUMED CONTRACTS WHICH ARE MATERIAL SHALL HAVE BEEN OBTAINED FROM THE
APPROPRIATE PARTY.
13
7.6
Financial Condition of Switchboard.
On the
Closing Date, Seller will not have a net asset value of less than $868,949.00,
which net asset value shall be calculated based upon the Financial Information
attached to this Agreement in Exhibit "A" in the manner provided for in Exhibit
"B" attached hereto and made a part hereof.
To the extent that the net asset
value of Seller on the Closing Date shall be less (or more) than $868,949.00 on
the Closing Date, the Cash Payment shall be reduced (or increased).
Seller and
Purchaser acknowledge and agree that as of the Closing Date that the value of
the inventory shall be estimated and that within ten (10) days of the Closing
Date Purchaser and Seller shall jointly prepare and agree on an inventory list
as of the Closing Date as being a true, complete and accurate inventory as of
the Closing Date and both Purchaser and Seller shall signify their respective
approval of the inventory list by signing a copy thereof.
Within ten (10) days
after Purchaser and Seller have completed, accepted and approved such inventory
list, Purchaser and Seller shall jointly calculate any adjustment to the net
asset value, as herein