ALL MATERIAL RESPECTS, IN EACH CASE AS OF THE DATE OF THIS AGREEMENT, AND AS
OF THE CLOSING WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF THE
CLOSING (EXCEPT TO THE EXTENT EXPRESSLY MADE AS OF A PARTICULAR DATE, IN WHICH
CASE AS OF SUCH DATE).
(B)
COVENANTS.
SELLER SHALL HAVE PERFORMED OR COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL AGREEMENTS AND COVENANTS REQUIRED BY THIS AGREEMENT
TO BE PERFORMED OR COMPLIED WITH BY SELLER ON OR PRIOR TO THE CLOSING.
(C)
NO ACTIONS.
NO ACTION, SUIT, OR PROCEEDING SHALL BE THREATENED OR
PENDING BEFORE ANY COURT OR QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY
NON-U.S. OR ANY U.S. FEDERAL, STATE OR LOCAL JURISDICTION OR BEFORE ANY
ARBITRATOR WHEREIN AN UNFAVORABLE INJUNCTION, JUDGMENT, ORDER, DECREE, RULING,
OR CHARGE WOULD, IF SUCCESSFUL, (A) PREVENT CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR (B) RESULT IN A MATERIAL ADVERSE
EFFECT TO SELLER OF THE PURCHASED ASSETS.
(D)
CLOSING CERTIFICATES.
SELLER SHALL HAVE DELIVERED TO PARENT AN
OFFICER'S CERTIFICATE TO THE EFFECT THAT EACH OF THE CONDITIONS SPECIFIED ABOVE
IN SECTION 7.1(A) TO 7.1(C) (INCLUSIVE) IS SATISFIED IN ALL RESPECTS.
34
(E)
THIRD PARTY CONSENTS.
ALL CONSENTS (OR WAIVERS IN LIEU THEREOF)
TO THE PERFORMANCE BY PARENT, BUYER AND SELLER OF THEIR RESPECTIVE OBLIGATIONS
UNDER THIS AGREEMENT AND THE ANCILLARY AGREEMENTS OR TO THE CONSUMMATION OF THE
TRANSACTION, LISTED ON SCHEDULE 7.1(E), (I) SHALL HAVE BEEN OBTAINED, (II) SHALL
BE IN FORM AND SUBSTANCE SATISFACTORY TO PARENT, AND (III) SHALL BE IN FULL
FORCE AND EFFECT.
(F)
DELIVERY OF DOCUMENTS.
SELLER WILL HAVE DELIVERED TO BUYER THE
FOLLOWING DOCUMENTS:
(I)
THE ASSUMPTION INSTRUMENTS, THE TRANSITION SERVICES AGREEMENT,
THE ESCROW AGREEMENT AND THE EMPLOYEE SECONDMENT AGREEMENT;
(II)
ALL DOCUMENTS NECESSARY TO EFFECT THE TRANSFER OF THE PURCHASED
ASSETS AND THE ASSUMED LIABILITIES AS LISTED IN 7.1(F)(II);
(III)
THE SELLER BOOKS AND RECORDS;
(IV)
ASSIGNMENT INSTRUMENTS WITH REGARD TO THE ASSIGNED CONTRACTS AND
THE ASSUMED PERMITS, INCLUDING, TO THE EXTENT REQUIRED, CONSENTS TO THE
ASSIGNMENTS FROM ALL PERSONS WHOSE CONSENT IS REQUIRED FOR SUCH ASSIGNMENT;
(V)
CONSENTS FROM ALL PERSONS TO DISCHARGE ANY LIEN (OTHER THAN
PERMITTED LIENS) EXISTING AS OF THE CLOSING ON THE PURCHASED ASSETS, THE
BUSINESS OR THE FACILITY SET FORTH IN SCHEDULE 7.1(F)(V); AND
(G)
MATERIAL ADVERSE EFFECT.
THERE SHALL NOT HAVE BEEN A MATERIAL
ADVERSE EFFECT ON THE BUSINESS OR THE PURCHASED ASSETS, TAKEN AS A WHOLE, NOR
SHALL THERE HAVE OCCURRED ANY EVENT OR DEVELOPMENT THAT COULD REASONABLY BE
EXPECTED TO RESULT IN THE FUTURE IN A MATERIAL ADVERSE EFFECT ON THE PURCHASED
ASSETS, TAKEN AS A WHOLE.
(H)
SCHEDULES.
SELLER SHALL HAVE DELIVERED TO BUYER SCHEDULE 1.1(V),
SCHEDULE 1.1(AA) AND SCHEDULE 1.1(MM) AT LEAST THREE (3) BUSINESS DAYS PRIOR TO
THE CLOSING DATE.
(I)
BOARD OF DIRECTORS.
BUYER SHALL HAVE RECEIVED A CERTIFIED COPY
OF THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF SELLER EXECUTED BY AN OFFICER OF
SELLER APPROVING THIS AGREEMENT, THE SALE AND TRANSFER OF THE PURCHASED