MADE AT AND AS
OF THE CLOSING; PROVIDED, THAT REPRESENTATIONS AND WARRANTIES WHICH ADDRESS
MATTERS ONLY AS OF A CERTAIN DATE SHALL HAVE BEEN TRUE AND CORRECT IN ALL
MATERIAL RESPECTS (OTHER THAN REPRESENTATIONS AND WARRANTIES SUBJECT TO
"MATERIALITY" QUALIFIERS, WHICH SHALL BE TRUE AND CORRECT AS STATED) AS OF SUCH
CERTAIN DATE.
(B)
PERFORMANCE.
PURCHASER SHALL HAVE PERFORMED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL AGREEMENTS, OBLIGATIONS AND COVENANTS REQUIRED TO BE
PERFORMED OR COMPLIED WITH BY IT ON OR PRIOR TO THE CLOSING DATE.
(C)
DELIVERIES TO SELLER.
PURCHASER SHALL HAVE DELIVERED TO SELLER
THE FOLLOWING:
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(I)
A CERTIFICATE, DATED THE CLOSING DATE, OF AN EXECUTIVE OFFICER OF
PURCHASER CONFIRMING THE MATTERS SET FORTH IN SECTION 6.2(A) AND (B);
(II)
A CERTIFICATE, DATED THE CLOSING DATE, OF THE SECRETARY OR
ASSISTANT SECRETARY OF PURCHASER CERTIFYING, THAT ATTACHED OR APPENDED TO SUCH
CERTIFICATE:
(A) IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF FORMATION OF
PURCHASER, AND ALL AMENDMENTS THERETO; (B) IS A TRUE COPY OF ALL LIMITED
LIABILITY COMPANY ACTIONS TAKEN BY IT, INCLUDING ACTIONS OF ITS SOLE MEMBER,
AUTHORIZING THE CONSUMMATION OF THE ACQUISITION AND THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND EACH OF THE TRANSACTION DOCUMENTS TO BE
DELIVERED BY PURCHASER PURSUANT HERETO; AND (C) ARE THE NAMES AND SIGNATURES OF
ITS DULY ELECTED OR APPOINTED OFFICERS WHO ARE AUTHORIZED TO EXECUTE AND DELIVER
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH PURCHASER IS A
PARTY;
(III)
A COUNTERPART OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT DULY
EXECUTED BY PURCHASER;
(IV)
A CERTIFICATE OF GOOD STANDING FROM THE APPROPRIATE STATE AGENCY,
DATED AS OF A RECENT DATE, CERTIFYING THAT PURCHASER IS IN GOOD STANDING IN THE
STATE OF DELAWARE;
(V)
A COUNTERPART OF A TRANSITION SERVICES AGREEMENT, IN THE FORM
ATTACHED AS EXHIBIT D (THE "TRANSITION SERVICES AGREEMENT"), DULY EXECUTED BY
PURCHASER;
(VI)
A COUNTERPART OF A SUPPLY AGREEMENT, IN THE FORM ATTACHED AS
EXHIBIT E (THE "SUPPLY AGREEMENT"), DULY EXECUTED BY KERR; AND
(VII)
A CERTIFICATE SETTING FORTH THE "BASE PURCHASE PRICE" (THE "BASE
PURCHASE PRICE").
(D)
REAL PROPERTY DELIVERIES.
PURCHASER SHALL HAVE DELIVERED TO
SELLER THE FOLLOWING:
(I)
A COUNTERPART OF AN ASSIGNMENT AND ASSUMPTION OF EACH OF THE REAL
PROPERTY LEASES IN THE FORM ATTACHED AS EXHIBIT F OR IN THE FORM REQUIRED BY THE
APPLICABLE REAL PROPERTY LEASE (EACH, AN "ASSIGNMENT OF LEASE"); AND
(II)
IF APPLICABLE, DULY COMPLETED AND EXECUTED REAL ESTATE TRANSFER
TAX DECLARATIONS.
(E)
WITHHOLDING TAX ESTIMATE.
AT LEAST THREE BUSINESS DAYS BEFORE THE
CLOSING DATE, PURCHASER SHALL HAVE DELIVERED TO SELLER A GOOD FAITH ESTIMATE OF
THE WITHHOLDING TAXES.
(F)
CONSENTS.
SELLER SHALL HAVE OBTAINED THE THIRD PARTY CONSENTS TO
THE ASSIGNMENT OF THE CONTRACTS LISTED ON SCHEDULE 6.2(F).
6.3
CONDITIONS TO OBLIGATION OF PURCHASER.
THE OBLIGATION OF KERR AND
PURCHASER TO CONSUMMATE THE ACQUISITION IS SUBJECT TO THE FULFILLMENT AT OR
PRIOR TO THE CLOSING OF THE
39
following conditions, any one or more of which may be waived in