RESPECTS AT AND AS OF THE CLOSING DATE, EXCEPT (I) FOR
CHANGES SPECIFICALLY PERMITTED BY THIS AGREEMENT, (II) THOSE REPRESENTATIONS AND
WARRANTIES WHICH ADDRESS MATTERS AS OF A PARTICULAR DATE SHALL REMAIN TRUE AND
CORRECT AS OF SUCH DATE, AND (III) THOSE REPRESENTATIONS AND WARRANTIES WHICH BY
THEIR TERMS ARE QUALIFIED BY MATERIALITY OR "MATERIAL ADVERSE EFFECT" SHALL BE
TRUE AND CORRECT IN ALL RESPECTS;
B.
THE SELLERS SHALL HAVE PERFORMED AND
COMPLIED WITH ALL THEIR COVENANTS HEREUNDER IN ALL MATERIAL RESPECTS THROUGH THE
CLOSING;
C.
THE SELLERS SHALL HAVE PROCURED ALL THE
THIRD-PARTY CONSENTS;
D.
NO PROCEEDING SHALL BE PENDING OR
THREATENED BEFORE (OR THAT COULD COME BEFORE) ANY COURT OR QUASI-JUDICIAL OR
ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE, LOCAL, OR FOREIGN JURISDICTION OR
BEFORE (OR THAT COULD COME BEFORE) ANY ARBITRATOR WHEREIN AN UNFAVORABLE
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A) PREVENT
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR
(B) CAUSE ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO BE RESCINDED
FOLLOWING CONSUMMATION;
E.
EACH OF THE REPRESENTATIVES, ON BEHALF
OF ALL THE RESPECTIVE PARTIES THEY REPRESENT, AND THE ESTATE OF ANY DECEASED
INDIVIDUAL OWNER (IF ANY), SHALL HAVE DELIVERED TO BUYER A CERTIFICATE
("SELLERS' AND EQUITY OWNERS' ARTICLE VIII CERTIFICATES") TO THE EFFECT THAT
EACH OF THE CONDITIONS SPECIFIED IN SECTIONS 8.1(A)-(D) AND SECTION 8.1(H) IS
SATISFIED IN ALL RESPECTS;
F.
ALL APPLICABLE WAITING PERIODS (AND
ANY EXTENSIONS THEREOF) UNDER THE HART-SCOTT-RODINO ACT SHALL HAVE EXPIRED OR
OTHERWISE BEEN TERMINATED;
G.
THE SELLERS SHALL HAVE PROCURED A PAYOFF
LETTER FROM WACHOVIA BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT UNDER
THE CREDIT AGREEMENT, INDICATING THE
54
AMOUNT NECESSARY TO PAY IN FULL THE AMOUNTS OUTSTANDING UNDER THE CREDIT
AGREEMENT AT CLOSING ("PAYOFF LETTER") TOGETHER WITH ALL NECESSARY RELEASES OF,
OR COVENANTS TO RELEASE, MORTGAGES AND SECURITY INTERESTS ARISING THEREUNDER;
H.
SINCE THE DATE OF THIS AGREEMENT, THE
ACQUIRED COMPANIES SHALL NOT HAVE INCURRED COMPANY DEBT FOR BORROWED MONEY OTHER
THAN PURSUANT TO THE CREDIT AGREEMENT AND IN THE ORDINARY COURSE OF BUSINESS OR
TO THE EXTENT SUCH INCURRENCE RECEIVED SUPER BOARD APPROVAL; PROVIDED, FURTHER,
THAT THE APPROVAL OF THE ACQUISITION OF ASSETS (INCLUDING CAPITAL EQUIPMENT,
REAL ESTATE AND THE STOCK OF ANOTHER COMPANY) BY SUPER BOARD APPROVAL SHALL BE
DEEMED TO HAVE BEEN SUPER BOARD APPROVAL OF ANY INCURRENCE OF COMPANY DEBT FOR
BORROWED MONEY TO FUND SUCH ACQUISITION PURSUANT TO THE CREDIT AGREEMENT;
I.
THE SELLERS AND EQUITY OWNERS SHALL
HAVE DELIVERED ALL THE DOCUMENTS, INSTRUMENTS, AGREEMENTS AND OTHER ITEMS TO BE
DELIVERED BY THEM AS SET FORTH IN ARTICLE IX;
J.
BUYER SHALL HAVE RECEIVED FROM
COUNSEL TO EACH SELLER A LEGAL OPINION SUBSTANTIALLY IN FORM AND SUBSTANCE AS
SET FORTH IN EXHIBIT D ATTACHED HERETO ("SELLER'S LEGAL OPINION"), ADDRESSED TO
BUYER AND PARENT, AND DATED AS OF THE CLOSING DATE;
K.
THE COMPANY SHALL HAVE RECEIVED THE
RESIGNATIONS, EFFECTIVE AS OF THE CLOSING, OF EACH MEMBER OF THE BOARD OF
DIRECTORS OF EACH ACQUIRED COMPANY WHO IS AN