OR BEFORE
ANY GOVERNMENTAL BODY.
ARTICLE VIII
CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to sell the Parent Shares and Company Shares, as applicable,
and to take the other actions required to be taken by Sellers at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived only by Majority Owners in
whole or in part):
8.1
ACCURACY OF REPRESENTATIONS.
ALL OF BUYER'S
REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT (CONSIDERED COLLECTIVELY) AND
EACH OF THESE REPRESENTATIONS AND WARRANTIES (CONSIDERED INDIVIDUALLY) MUST HAVE
BEEN ACCURATE IN ALL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND MUST BE
ACCURATE IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE AS IF MADE ON THE
CLOSING DATE.
8.2
BUYER'S PERFORMANCE.
(A)
ALL OF THE COVENANTS AND OBLIGATIONS THAT
BUYER IS REQUIRED TO PERFORM OR TO COMPLY WITH PURSUANT TO THIS AGREEMENT AT OR
PRIOR TO THE CLOSING (CONSIDERED COLLECTIVELY) AND EACH OF THESE COVENANTS AND
OBLIGATIONS (CONSIDERED INDIVIDUALLY) MUST HAVE BEEN PERFORMED AND COMPLIED WITH
IN ALL MATERIAL RESPECTS.
(B)
BUYER MUST HAVE DELIVERED EACH OF THE
DOCUMENTS REQUIRED TO BE DELIVERED BY, AND MUST HAVE MADE THE CASH PAYMENTS
REQUIRE TO BE MADE, PURSUANT TO SECTION 2.4(B).
8.3
APPROVAL.
THE CONTEMPLATED TRANSACTIONS
SHALL HAVE BEEN APPROVED BY EMRISE'S SENIOR LENDER.
8.4
CONSENTS.
EACH OF THE CONSENTS IDENTIFIED
IN OF SECTION 3.2(C) OF THE DISCLOSURE SCHEDULE AND SCHEDULE 4.2 MUST HAVE BEEN
OBTAINED AND MUST BE IN FULL FORCE AND EFFECT.
8.5
ENVIRONMENTAL MATTERS.
THE COMPANY SHALL
COMPLY WITH THE INDUSTRIAL SITE RECOVERY ACT, NJSA 13:1K-1 ET. SEQ., IN
CONNECTION WITH SALE OF THE COMPANY SHARES PURSUANT TO THIS AGREEMENT.
8.6
NO INJUNCTION.
THERE MUST NOT BE IN EFFECT
ANY LEGAL REQUIREMENT OR ANY INJUNCTION OR OTHER ORDER THAT (A) PROHIBITS THE
SALE OF THE PARENT SHARES OR COMPANY SHARES BY SELLERS TO BUYER, AND (B) HAS
BEEN ADOPTED OR ISSUED, OR HAS OTHERWISE BECOME EFFECTIVE, SINCE THE DATE OF
THIS AGREEMENT.
70
8.7
NO PROCEEDINGS.
SINCE THE DATE OF THIS
AGREEMENT, THERE MUST NOT HAVE BEEN COMMENCED OR THREATENED AGAINST ANY OF THE
SELLERS, OR AGAINST ANY PERSON AFFILIATED WITH A SELLER, ANY PROCEEDING
(A) INVOLVING ANY CHALLENGE TO, OR SEEKING DAMAGES OR OTHER RELIEF IN CONNECTION
WITH, ANY OF THE CONTEMPLATED TRANSACTIONS, OR (B) THAT MAY HAVE THE EFFECT OF
PREVENTING, DELAYING, MAKING ILLEGAL, OR OTHERWISE INTERFERING WITH ANY OF THE
CONTEMPLATED TRANSACTIONS.
8.8
ADDITIONAL DOCUMENTS.
EACH OF THE FOLLOWING
DOCUMENTS MUST HAVE BEEN DELIVERED TO SELLERS:
(A)
AN OPINION OF RUTAN & TUCKER, LLP, DATED AS
OF THE CLOSING DATE, IN THE FORM SET FORTH ON EXHIBIT 8.8(A); AND
(B)
SUCH OTHER DOCUMENTS AS SELLERS MAY
REASONABLY REQUEST FOR THE PURPOSE OF (I) EVIDENCING THE ACCURACY OF ANY OF
BUYER'S REPRESENTATIONS AND WARRANTIES, (II) EVIDENCING THE PERFORMANCE BY BUYER
OF, OR THE COMPLIANCE BY BUYER, WITH ANY COVENANT OR OBLIGATION REQUIRED TO BE
PERFORMED OR COMPLIED WITH BY BUYER, AS APPLICABLE, (IV)