OR AGAINST ANY OFFICER, DIRECTOR, AFFILIATE,
EMPLOYEE, PROPERTIES OR ASSETS OF APOLLO OR APOLLO PRODUCTION WHICH COULD IMPAIR
APOLLO'S OR APOLLO PRODUCTION'S ABILITY TO PERFORM THEIR OBLIGATIONS UNDER THIS
AGREEMENT, AND (II) ANY REQUEST FOR ADDITIONAL INFORMATION OR DOCUMENTARY
MATERIALS BY ANY GOVERNMENTAL AUTHORITY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.8.
APOLLO PRODUCTION'S AND APOLLO'S CONDUCT OF
BUSINESS.
WITHOUT IN ANY WAY LIMITING ANY OTHER OBLIGATION OF THE SELLER
PURSUANT TO THIS AGREEMENT, FROM THE EFFECTIVE DATE UNTIL THE CLOSING, APOLLO
PRODUCTION AND APOLLO SHALL (A) MAINTAIN THEIR BOOKS AND RECORDS IN ACCORDANCE
WITH PAST PRACTICES; (B) COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE
LAWS; (C) CONDUCT THEIR BUSINESS IN THE ORDINARY COURSE OF BUSINESS;
(D) MAINTAIN INSURANCE ON THE ASSETS AND OPERATIONS OF THEIR BUSINESS IN AMOUNTS
AND WITH COVERAGE AT LEAST AS GREAT AS THE AMOUNTS AND COVERAGE PRESENTLY
MAINTAINED BY THEM; (E) NOT DO ANY ACT OR OMIT TO DO ANY ACT, OR PERMIT ANY ACT
OR OMISSION TO ACT, WHICH WOULD CAUSE A BREACH OF ANY CONTRACT, COMMITMENT OR
OBLIGATION FOR WHICH SELLER WOULD BE LIABLE OR WHICH WOULD HAVE A MATERIAL
ADVERSE EFFECT.
APOLLO PRODUCTION AND APOLLO WILL NOT TAKE OR PERMIT ANY ACTION
TO BE TAKEN WHICH WOULD RESULT IN ANY REPRESENTATION OR WARRANTY OF EITHER OF
APOLLO PRODUCTION OR APOLLO HEREIN BECOMING UNTRUE OR INCORRECT IN ANY MATERIAL
RESPECT.
4.9.
RECORDS.
AFTER THE CLOSING, APOLLO PRODUCTION
SHALL MAINTAIN THE BOOKS AND RECORDS RELATING TO MOUNTAIN STATES IN AN ORDERLY
AND BUSINESSLIKE FASHION AND SHALL PERMIT SELLERS TO HAVE REASONABLE ACCESS AT
SELLER'S EXPENSE TO SUCH BOOKS AND RECORDS IN CONNECTION WITH THE PREPARATION OF
SELLER'S FINANCIAL REPORTS, TAX RETURNS, TAX AUDITS, THE DEFENSE OR PROSECUTION
OF LITIGATION (INCLUDING ARBITRATION), OR ANY OTHER REASONABLE NEED OF SELLER TO
CONSULT SUCH BOOKS AND RECORDS.
4.10.
CERTIFICATE OF CLEARANCE.
THE SELLER SHALL
EXERCISE COMMERCIALLY REASONABLY EFFORTS TO DELIVER TO APOLLO PRODUCTION, AS
SOON AS PRACTICABLE FOLLOWING CLOSING, CERTIFICATES OF CLEARANCE FROM THE
ARIZONA DEPARTMENT OF REVENUE, DATED WITHIN A REASONABLE TIME PERIOD SUBSEQUENT
TO THE CLOSING, ADDRESSED TO MOUNTAIN STATES, VERIFYING THE TIMELY FILING OF AND
REQUIRED TRANSACTION PRIVILEGE, SALES AND/OR USE TAX, INCOME TAX AND
UNEMPLOYMENT AND WITHHOLDING TAX RETURNS BY MOUNTAIN STATES, AND PAYMENT BY
MOUNTAIN STATES OF ALL AMOUNTS DUE.
5.
CONDITIONS PRECEDENT TO THE PARTIES'
OBLIGATIONS TO CLOSE
5.1.
CONTINGENCIES OF APOLLO.
APOLLO PRODUCTION'S
OBLIGATION TO PURCHASE THE STOCK AND APOLLO PRODUCTION'S AND APOLLO'S
OBLIGATIONS TO TAKE THE OTHER ACTIONS REQUIRED TO BE TAKEN BY APOLLO PRODUCTION
AND BY APOLLO AT THE CLOSING ARE SUBJECT TO THE SATISFACTION, AT OR PRIOR TO THE
CLOSING, OF EACH OF THE FOLLOWING CONDITIONS (ANY OF WHICH MAY BE WAIVED BY
APOLLO PRODUCTION OR BY APOLLO, IN WHOLE OR IN PART, IN WRITING).
(A)
REPRESENTATIONS AND WARRANTIES; AGREEMENTS;
COVENANTS.
EACH OF THE REPRESENTATIONS AND WARRANTIES OF SELLER SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS ON THE DATE MADE AND SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING.