ANY QUALIFICATION OR LIMITATION WITH RESPECT TO MATERIALITY (WHETHER BY
REFERENCE TO "MATERIAL," "MATERIAL ADVERSE EFFECT" OR OTHERWISE), SHALL BE TRUE
AND CORRECT AS OF THE CLOSING DATE, WITH THE SAME EFFECT AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES HAD BEEN MADE ON AND AS OF THE CLOSING DATE,
EXCEPT THAT SUCH REPRESENTATIONS AND WARRANTIES THAT ARE MADE AS OF A SPECIFIC
DATE NEED ONLY BE TRUE IN ALL MATERIAL RESPECTS AS OF SUCH DATE; PROVIDED,
HOWEVER, THAT NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS
SECTION 6.2(A) SHALL BE DEEMED TO HAVE BEEN SATISFIED EVEN IF SUCH
REPRESENTATIONS OR WARRANTIES ARE NOT TRUE AND CORRECT UNLESS THE FAILURE OF
SUCH REPRESENTATIONS OR WARRANTIES TO BE SO TRUE AND CORRECT, IN THE AGGREGATE,
HAS HAD, OR IS REASONABLY LIKELY TO HAVE, A MATERIAL ADVERSE EFFECT ON BUYER.
(B)
COVENANTS. ALL OF THE COVENANTS, AGREEMENTS, UNDERTAKINGS AND
OBLIGATIONS THAT BUYER IS REQUIRED TO PERFORM OR TO COMPLY WITH AT OR PRIOR TO
CLOSING PURSUANT TO THIS AGREEMENT AND THE AGREEMENT, DATED AS OF MAY 3, 2006,
AMONG MCKINSEY & COMPANY, INC. UNITED STATES, SELLER AND BUYER, SHALL HAVE BEEN
DULY PERFORMED AND SUBSTANTIALLY COMPLIED WITH IN ALL MATERIAL RESPECTS OR IF
BREACHED, SHALL HAVE BEEN REMEDIED, CURED OR WAIVED AT OR PRIOR TO CLOSING.
(C)
NO INJUNCTION. NO TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION OR OTHER ORDER ISSUED BY A GOVERNMENTAL ENTITY PROHIBITING,
PREVENTING OR ENJOINING THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE IN EFFECT.
SECTION 6.3
DOCUMENTATION TO BE DELIVERED AT CLOSING. IN ADDITION TO
THE INSTRUMENTS AND DOCUMENTS REQUIRED BY THIS AGREEMENT TO BE EXCHANGED OR
DELIVERED BY THE PARTIES AT CLOSING:
(A)
AS TO SELLER. AT THE CLOSING, SELLER SHALL DELIVER TO BUYER:
(I)
A CERTIFICATE OR CERTIFICATES EVIDENCING ALL OF THE THEN ISSUED
AND OUTSTANDING MEMBERSHIP INTERESTS, DULY ENDORSED IN BLANK, IN PROPER FORM FOR
TRANSFER, AND WITH ANY REQUISITE TRANSFER TAX STAMPS PROPERLY AFFIXED THERETO;
(II)
A CERTIFICATE DATED AS OF THE CLOSING DATE AND SIGNED BY A SENIOR
EXECUTIVE OFFICER OR OFFICERS, REPRESENTING THAT THE CONDITIONS REFERRED TO IN
SECTIONS 6.1(A) AND 6.1(B) HAVE BEEN SATISFIED;
(III)
AN INCUMBENCY CERTIFICATE CERTIFYING AS TO THE NAMES AND
SIGNATURES OF THE OFFICERS AUTHORIZED TO SIGN THIS AGREEMENT AND EACH OF THE
DOCUMENTS TO BE DELIVERED HEREUNDER;
26
(IV)
MINUTE BOOKS AND ALL BOOKS, PAPERS, RECORDS, AND OTHER PROPERTY
BELONGING TO THE COMPANY;
(V)
RESIGNATION LETTERS OF EACH MEMBER OF THE BOARD OF MANAGERS OF THE
COMPANY, EFFECTIVE UPON CONSUMMATION OF THE CLOSING;
(VI)
A CERTIFICATE SIGNED BY AN OFFICER OF SELLER STATING THAT SELLER
IS NOT A FOREIGN PERSON, IN A FORM THAT COMPLIES WITH TREASURY REGULATIONS
SECTION 1.1445-2(B)(2)(I); AND
(VII)
AN OPINION OR OPINIONS FROM COUNSEL (INCLUDING IN-HOUSE COUNSEL AS
TO THE MATTERS OF AUTHORIZATION, EXECUTION AND DELIVERY) ADDRESSED TO BUYER AND
DATED AS OF THE CLOSING DATE AS TO THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
OF THIS AGREEMENT BY SELLER AND THE VALIDITY AND ENFORCEABILITY THEREOF, AND AS
TO THE DUE AUTHORIZATION, EXECUTION