Agreement or in any of such party's disclosure schedules, or in
any certificates delivered by such party on the Closing Date shall survive the
consummation of the transactions contemplated hereby for eighteen (18) months.
The covenants of any party hereto that cannot be or are not fully performed by
such party on or prior to the Closing Date shall survive until they are
otherwise terminated pursuant to their terms or fully performed.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
The obligation of Buyer to consummate the purchase of the Purchased Assets from
Seller is subject to the fulfillment, or the waiver by Buyer, at or prior to the
Closing, of each of the following conditions precedent:
7.1
ABSENCE OF MATERIAL LITIGATION.
EXCEPT AS SET FORTH ON
SCHEDULE 3.14, THERE SHALL BE (A) NO PENDING OR OVERTLY THREATENED LITIGATION
(OTHER THAN LITIGATION WHICH IS DETERMINED BY THE PARTIES IN GOOD FAITH, AFTER
CONSULTING THEIR RESPECTIVE ATTORNEYS, TO BE WITHOUT LEGAL OR FACTUAL SUBSTANCE
OR MERIT), WHETHER BROUGHT AGAINST SELLER OR BUYER, THAT SEEKS TO ENJOIN THE
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B) NO
ORDER THAT HAS BEEN ISSUED BY ANY COURT OR GOVERNMENTAL AGENCY HAVING
JURISDICTION THAT RESTRAINS OR PROHIBITS THE CONSUMMATION OF THE PURCHASE AND
SALE OF THE PURCHASED ASSETS HEREUNDER AND NO PROCEEDINGS PENDING WHICH ARE
REASONABLY LIKELY TO RESULT IN THE ISSUANCE OF SUCH AN ORDER; AND (C) NO PENDING
OR OVERTLY THREATENED LITIGATION, WHICH HAS HAD OR IS REASONABLY EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT ON SELLER.
7.2
PERFORMANCE OF OBLIGATIONS.
SELLER SHALL HAVE PERFORMED AND
COMPLIED, IN ALL MATERIAL RESPECTS WITH ALL OF THE COVENANTS REQUIRED BY THIS
AGREEMENT TO HAVE BEEN PERFORMED PRIOR TO THE CLOSING.
7.3
NO MATERIAL ADVERSE CHANGE.
SINCE THE DATE OF THIS AGREEMENT,
THERE SHALL NOT HAVE BEEN ANY CHANGE IN OR OTHER EVENT THAT HAS HAD OR IS
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON SELLER.
7.4
DELIVERY OF ADDITIONAL INSTRUMENTS.
ON THE CLOSING DATE, SELLER
SHALL DELIVER, OR CAUSE TO BE DELIVERED TO BUYER, THE FOLLOWING DOCUMENTS AND
INSTRUMENTS, IN FORM AND SUBSTANCE SATISFACTORY TO BUYER AND ITS COUNSEL, UNLESS
WAIVED IN WRITING BY BUYER:
(A)
THE BILL OF SALE AND ASSUMPTION AGREEMENT IN SUBSTANTIALLY THE
FORM OF EXHIBIT B HERETO, DULY EXECUTED BY SELLER (THE "BILL OF SALE");
(B)
EVIDENCE OF THE RECEIPT OF ALL THIRD PARTY CONSENTS DESCRIBED ON
SCHEDULE 3.1 OR OTHERWISE REFERRED TO IN SECTION 3.1 IN CONNECTION WITH THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN;
(C)
A LEGAL OPINION OF COUNSEL TO SELLER IN SUCH FORM AS IS REASONABLY
SATISFACTORY TO BUYER;
(D)
A CERTIFICATE OF STATUS, DATED AS OF A DATE THAT IS NOT MORE THAN
TEN (10) DAYS PRIOR TO THE CLOSING DATE, FROM THE MINISTRY OF CONSUMER AND
BUSINESS AFFAIRS OF THE PROVINCE OF ONTARIO, FOR SELLER; AND
(E)
SUCH OTHER DOCUMENTS AND INSTRUMENTS AS BUYER OR BUYER'S COUNSEL
MAY REASONABLY REQUEST SO AS BETTER TO EVIDENCE OR EFFECTUATE THE