OF SELLER GROUP CONTAINED HEREIN THAT
ARE QUALIFIED AS TO MATERIALITY SHALL BE TRUE IN ALL RESPECTS ON AND AS OF THE
CLOSING DATE (EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE AS OF A
SPECIFIC DATE WHICH SHALL BE TRUE IN ALL MATERIAL RESPECTS AS OF SUCH DATE) WITH
THE SAME FORCE AND EFFECT AS THOUGH MADE ON AND AS OF SUCH DATE, AND EACH OF THE
REPRESENTATIONS AND WARRANTIES OF SELLER THAT ARE NOT SO QUALIFIED SHALL BE TRUE
IN ALL MATERIAL RESPECTS;
(B)
SELLER GROUP SHALL HAVE PERFORMED AND COMPLIED WITH IN ALL MATERIAL
RESPECTS ITS AGREEMENTS, OBLIGATIONS AND COVENANTS UNDER THIS AGREEMENT REQUIRED
TO BE PERFORMED OR COMPLIED WITH BY IT AT OR PRIOR TO THE CLOSING PURSUANT TO
THE TERMS HEREOF;
(C)
THE REQUISITE CONSENTS AND APPROVALS LISTED ON SCHEDULE 6.3(C) OF THE
DISCLOSURE SCHEDULES SHALL HAVE BEEN OBTAINED, AND A COPY OF EACH SUCH CONSENT
OR APPROVAL SHALL HAVE BEEN PROVIDED TO BUYER, AT OR PRIOR TO CLOSING;
(D)
SELLER SHALL HAVE DELIVERED TO BUYER A CERTIFICATE AS TO THE SATISFACTION
OF THE CONDITIONS CONTAINED IN SECTIONS 6.3(A) AND 6.3(B), DATED AS OF THE
CLOSING AND EXECUTED BY AN OFFICER OF SELLER OR SUCH SELLING SUBSIDIARY, AS THE
CASE MAY BE;
(E)
EACH OF THE DOCUMENTS REFERRED TO IN SECTION 1.4 SHALL HAVE BEEN EXECUTED
BY THE APPROPRIATE MEMBER(S) OF THE SELLER GROUP AND DELIVERED TO BUYER;
(F)
PROVISION SATISFACTORY TO BUYER SHALL HAVE BEEN MADE FOR THE RELEASE OF
ANY SECURITY INTERESTS WHICH ENCUMBER ANY OF THE ASSETS OTHER THAN PERMITTED
ENCUMBRANCES;
(G)
THERE SHALL NOT BE ANY SUIT, ACTION, OR OTHER PROCEEDING PENDING OR
OVERTLY THREATENED BY ANY GOVERNMENTAL AUTHORITY OR ADMINISTRATIVE AGENCY OR
COMMISSION THAT SEEKS TO ENJOIN OR OTHERWISE PREVENT CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THAT WOULD HAVE A MATERIAL ADVERSE EFFECT,
OTHER THAN SUITS, ACTIONS OR PROCEEDINGS THAT, IN THE REASONABLE OPINION OF
BUYER'S COUNSEL, ARE UNLIKELY TO PREVAIL;
(H)
SELLER GROUP SHALL HAVE PROVIDED TO BUYER ALL AUDITED AND OTHER REQUIRED
FINANCIAL INFORMATION OF THE BUSINESS REQUIRED BY THE SEC TO BE FILED BY BUYER
FOLLOWING THE CLOSING AS PART OF THE FORM 8-K WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; AND
(I)
NO EVENT SHALL HAVE OCCURRED SINCE THE DATE OF THIS AGREEMENT AND NO
CONDITION OR CIRCUMSTANCE SHALL EXIST THAT WOULD REASONABLY BE EXPECTED TO GIVE
RISE TO ANY MATERIAL ADVERSE EFFECT.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS
SECTION 7.1
SURVIVAL OF REPRESENTATIONS
All representations and warranties made in this Agreement shall survive the
Closing for a period of twelve (12) months, but, except as provided in
Section 8.2, shall not survive any termination of this Agreement; provided,
however, that notwithstanding the foregoing, (i) the representations and
warranties
40
contained in Sections 3.2 and 4.2 shall survive the Closing indefinitely
(subject to any applicable statutes of limitations) and (ii) the representations
and warranties contained in Sections 3.13 and 3.15 shall survive until sixty
(60) days after the expiration of the applicable statute