ADVERSE EFFECT.
(B)
SELLERS SHALL HAVE PERFORMED AND COMPLIED WITH ALL OF THEIR
COVENANTS HEREUNDER IN ALL RESPECTS THROUGH THE CLOSING, EXCEPT AS NOT HAD,
INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT;
(C)
NO ACTION, SUIT, OR PROCEEDING SHALL BE PENDING OR THREATENED
BEFORE ANY COURT OR QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY FEDERAL,
STATE, LOCAL, OR FOREIGN JURISDICTION OR BEFORE ANY ARBITRATOR WHEREIN AN
UNFAVORABLE INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A)
PREVENT CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
(B) CAUSE ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO BE RESCINDED
FOLLOWING CONSUMMATION, OR (C) ADVERSELY AFFECT THE RIGHT OF BUYER TO OWN THE
MEMBERSHIP INTERESTS AND OPERATE TARGET'S BUSINESS;
(D)
SELLERS SHALL HAVE DELIVERED TO BUYER A CERTIFICATE TO THE EFFECT
THAT EACH OF THE CONDITIONS SPECIFIED ABOVE IN SECTIONS 7.1(A)-7.1(C) HAS BEEN
SATISFIED;
(E)
BUYER SHALL HAVE RECEIVED THE RESIGNATIONS, EFFECTIVE AS OF THE
CLOSING, OF EACH MANAGER OF TARGET OTHER THAN THOSE WHOM BUYER SHALL HAVE
SPECIFIED IN WRITING AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE CLOSING;
(F)
DURING THE COMBINED MONTHS OF OCTOBER AND NOVEMBER 2006, THE
AGGREGATE REVENUE OF TARGET, DETERMINED THROUGH FULL APPLICATION OF THE
PROCEDURES USED IN PREPARING THE MOST RECENT INCOME STATEMENT, SHALL HAVE BEEN
AT LEAST $2,000,000;
(G)
THERE SHALL NOT HAVE OCCURRED A MATERIAL ADVERSE EFFECT;
(H)
EACH SELLER SHALL DELIVER TO BUYER A NON-FOREIGN AFFIDAVIT DATED
AS OF THE CLOSING DATE, SWORN UNDER PENALTY OF PERJURY AND IN FORM AND SUBSTANCE
REQUIRED UNDER THE TREASURY REGULATIONS ISSUED PURSUANT TO CODE §1445 STATING
THAT SUCH SELLER IS NOT A "FOREIGN PERSON" AS DEFINED IN CODE §1445 (THE "FIRPTA
AFFIDAVIT");
35
(I)
EACH OF RICH SCHMELZER AND SHERI SCHMELZER SHALL HAVE ENTERED
INTO EMPLOYMENT AGREEMENTS WITH BUYER, ATTACHED HERETO AS EXHIBITS D-1 AND D-2
(THE "EMPLOYMENT AGREEMENTS");
(J)
SELLERS SHALL HAVE DELIVERED TO BUYER A COPY OF THE ARTICLES OF
ORGANIZATION OF TARGET CERTIFIED ON OR SOON BEFORE THE CLOSING DATE BY THE
SECRETARY OF STATE OF COLORADO;
(K)
SELLERS SHALL HAVE DELIVERED TO BUYER A COPY OF THE CERTIFICATE OF
GOOD STANDING OF TARGET ISSUED ON OR SOON BEFORE THE CLOSING DATE BY THE
SECRETARY OF STATE OF COLORADO; AND
(L)
SELLERS SHALL HAVE DELIVERED TO BUYER A CERTIFICATE OF THE
SECRETARY OF TARGET, DATED AS OF THE CLOSING DATE, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO BUYER, STATING THAT THERE HAVE BEEN NO AMENDMENTS TO
THE ARTICLES OF ORGANIZATION OR OPERATING AGREEMENT OF TARGET SINCE THE DATE
SPECIFIED IN CLAUSE (L) ABOVE.
Buyer may waive any condition specified in this Section 7.1 if it executes a
writing so stating at or prior to the Closing.
7.2
CONDITIONS TO SELLERS' OBLIGATION.
THE OBLIGATION OF SELLERS TO
CONSUMMATE THE TRANSACTIONS TO BE PERFORMED BY THEM IN CONNECTION WITH THE
CLOSING IS SUBJECT TO SATISFACTION OF THE FOLLOWING CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF BUYER SET FORTH IN SECTION
3.2 ABOVE SHALL BE TRUE AND CORRECT AT AND