INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE SHALL
BE IN EFFECT);
(IV)
SELLER SHALL HAVE DELIVERED TO BUYER A CERTIFICATE, EXECUTED BY AN
AUTHORIZED OFFICER OF SELLER, TO THE EFFECT THAT EACH OF THE CONDITIONS
SPECIFIED ABOVE IN SECTION 7(A)(I)-(III) IS SATISFIED IN ALL RESPECTS;
(V)
THE BUYER AND THE SELLER SHALL HAVE ENTERED INTO EACH OF THE
TRANSITION SERVICES AGREEMENT, PATENT LICENSE AGREEMENT, THE OVERSTOCK INVENTORY
AGREEMENT AND THE TRADEMARK LICENSE AGREEMENT AND ALL OF THE SAME SHALL BE IN
FULL FORCE AND EFFECT;
(VI)
BUYER SHALL HAVE RECEIVED FROM COUNSEL TO SELLER AN OPINION IN
FORM AND SUBSTANCE AS SET FORTH IN EXHIBIT E ATTACHED HERETO, ADDRESSED TO BUYER
AND ON WHICH BUYER'S LENDERS SHALL BE ENTITLED TO RELY, AND DATED AS OF THE
CLOSING DATE;
(VII)
ALL ACTIONS TO BE TAKEN BY SELLER IN CONNECTION WITH CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL CERTIFICATES, OPINIONS,
INSTRUMENTS, AND OTHER DOCUMENTS REQUIRED TO EFFECT THE TRANSACTIONS
CONTEMPLATED HEREBY WILL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO
BUYER;
(VIII)
SELLER SHALL HAVE OBTAINED AND DELIVERED TO BUYER A WRITTEN
CONSENT FOR THE ASSIGNMENT OF THE LEASE FOR THE MEMPHIS FACILITY (THE "LEASE
CONSENT"), IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO BUYER;
(IX)
NO DAMAGE OR DESTRUCTION OR OTHER CHANGE SHALL HAVE OCCURRED WITH
RESPECT TO ANY OF THE LEASED REAL PROPERTY OR ANY PORTION THEREOF THAT,
INDIVIDUALLY OR IN THE AGGREGATE, WOULD MATERIALLY IMPAIR THE USE OR OCCUPANCY
OF THE LEASED REAL PROPERTY;
(X)
BUYER SHALL HAVE OBTAINED FINANCING IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO IT AND ITS COUNSEL, NECESSARY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THE CONDITIONS PRECEDENT TO SUCH FINANCING
SHALL HAVE BEEN SATISFIED; AND
(XI)
BUYER SHALL HAVE HAD SUBSTANTIVE DILIGENCE DISCUSSIONS WITH
WAL-MART REGARDING WAL-MART'S RELATIONSHIP WITH SELLER AND ITS CONTINUED
RELATIONSHIP WITH BUYER, AND WAL-MART SHALL NOT HAVE ADVISED BUYER THAT IT
INTENDS TO ADVERSELY CHANGE THE RELATIONSHIP BETWEEN WAL-MART, ON THE ONE HAND,
AND BUYER AND BUYER'S WAL-MART RELATIONSHIP MANAGEMENT TEAM, ON THE OTHER, FROM
THAT CURRENTLY IN EXISTENCE BETWEEN WAL-MART, ON THE ONE HAND, AND SELLER AND
SELLER'S WAL-MART RELATIONSHIP MANAGEMENT TEAM, ON THE OTHER.
Buyer may waive any condition specified in this Section 7(a) if it executes a
writing so stating at or prior to the Closing.
(b)
Conditions to Seller's Obligation.
The obligation of Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
26
(i)
the representations and warranties set forth in Section 4 above
shall be true and correct in all material respects (except for those
representations and warranties qualified by "material," which shall be true and
correct in all respects) at and as of the Closing Date;
(II)
BUYER SHALL HAVE PERFORMED AND COMPLIED WITH ALL OF ITS COVENANTS
HEREUNDER IN ALL MATERIAL RESPECTS (OTHER THAN THOSE COVENANTS CONTAINED IN
SECTION 2(E) WHICH SHALL HAVE BEEN COMPLIED WITH IN ALL RESPECTS) THROUGH THE
CLOSING;
(III)
NO ACTION, SUIT, OR PROCEEDING