OR ANY SUPPLEMENTS OR AMENDMENTS TO THE
SCHEDULES MADE PURSUANT TO SECTION 5(I)) AS OF THE DATE OF THIS AGREEMENT AND AT
CLOSING (EXCEPT FOR THOSE THAT REFER TO A SPECIFIC DATE, WHICH MUST BE TRUE AND
CORRECT (WITHOUT GIVING EFFECT TO ANY QUALIFICATION AS TO MATERIALITY OR ANY
SUPPLEMENTS TO THE SCHEDULES MADE PURSUANT TO SECTION 5(I)) AS OF SUCH DATE),
EXCEPT WHERE ALL INACCURACIES OF SUCH REPRESENTATIONS AND WARRANTIES WOULD (OR
COULD REASONABLY BE EXPECTED TO) NOT ADVERSELY AFFECT THE ABILITY OF THE BUYER
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND (B) THE BUYER
SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS WITH ALL OF ITS COVENANTS AND
AGREEMENTS HEREUNDER;
(II)
THERE MUST NOT BE ANY INJUNCTION, JUDGMENT, ORDER, DECREE,
RULING, OR CHARGE IN EFFECT PREVENTING CONSUMMATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY SUIT OR ACTION PENDING BY A GOVERNMENTAL
AUTHORITY TO ENJOIN THE CONSUMMATION OF ANY OF THE TRANSACTIONS, CONTEMPLATED BY
THIS AGREEMENT;
(III)
ANY REQUIRED WAITING PERIOD UNDER THE HSR ACT SHALL HAVE EXPIRED
OR EARLY TERMINATION SHALL HAVE BEEN GRANTED WITH RESPECT TO SUCH PERIOD;
(IV)
IF THERE HAS BEEN DAMAGE, DESTRUCTION OR CONDEMNATION OF THE TYPE
DESCRIBED IN THE FIRST SENTENCE OF SECTION 5(E), THE BUYER'S ELECTION TO CLOSE
MUST HAVE BEEN EXERCISED AND, IN THE CASE OF SECTION 5(E)(II)(X), AGREED TO BY
THE SELLER;
(V)
TAKEN TOGETHER, THE EFFECT OF ALL INACCURACIES OF REPRESENTATIONS
AND WARRANTIES OF THE SELLER AS DESCRIBED IN SECTION 7(A)(I)(A) IS LESS THAN
THREE MILLION DOLLARS ($3,000,000);
(VI)
THE BUYER SHALL HAVE DELIVERED TO THE SELLER THE ESTIMATED
PURCHASE PRICE SET FORTH IN THE INTERIM CLOSING STATEMENT IN CASH BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FEDERAL FUNDS;
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(VII)
EACH OF THE COMMERCIAL AGREEMENTS SHALL HAVE BEEN EXECUTED AND
DELIVERED BY EACH OF THE PARTIES THERETO;
(VIII)
WITH RESPECT TO EACH OTHER PURCHASE AGREEMENT, THE CLOSING (AS
DEFINED IN SUCH OTHER PURCHASE AGREEMENT) UNDER SUCH OTHER PURCHASE AGREEMENT
SHALL HAVE OCCURRED SIMULTANEOUSLY WITH THE CLOSING; AND
(IX)
THE BUYER SHALL HAVE DELIVERED, OR CAUSED TO BE DELIVERED, TO THE
SELLER EACH TRANSACTION AGREEMENT TO WHICH ANY BUYER PARTY IS A PARTY.
The Seller may waive any condition specified in this Section 7(b) if it executes
a writing so stating at or before the Closing.
8.
Obligations, Survival and Indemnification.
(a)
Survival of Representations, Warranties and Covenants.
(i) All of
the representations contained in Sections 3(a) and 4 (other than the Fundamental
Representations) shall survive the Closing until April 1, 2007; and (ii) the
Fundamental Representations shall survive the Closing until ninety (90) days
after the expiration of the applicable statute of limitations.
The covenants
and obligations contained in Sections 2 and 6 and all other covenants and
obligations contained in this Agreement shall survive the Closing indefinitely.
(b)
Indemnification Provisions for Benefit of the Buyer.
(I)
REPRESENTATIONS AND WARRANTIES - GENERAL.
IN THE EVENT: (X) THE
SELLER BREACHES (WITHOUT GIVING EFFECT TO ANY QUALIFICATION AS TO MATERIALITY
(INCLUDING MATERIAL ADVERSE EFFECT)) ANY