AT LEAST THREE BUSINESS DAYS BEFORE THE
CLOSING DATE, PURCHASER SHALL HAVE DELIVERED TO SELLER A GOOD FAITH ESTIMATE OF
THE WITHHOLDING TAXES.
(F)
CONSENTS.
SELLER SHALL HAVE OBTAINED THE THIRD PARTY CONSENTS TO
THE ASSIGNMENT OF THE CONTRACTS LISTED ON SCHEDULE 6.2(F).
6.3
Conditions to Obligation of Purchaser.
The obligations of Kerr
and Purchaser to consummate the Acquisition is subject to the fulfillment at or
prior to the Closing of the
39
following conditions, any one or more of which may be waived in whole or in part
by Kerr and Purchaser:
(A)
ACCURACY OF REPRESENTATIONS AND WARRANTIES.
EACH OF THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT SHALL HAVE
BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS (OTHER THAN REPRESENTATIONS AND
WARRANTIES SUBJECT TO "MATERIALITY" QUALIFIERS, WHICH SHALL BE TRUE AND CORRECT
AS STATED) WHEN MADE AND ON AND AS OF THE CLOSING AS IF MADE AT AND AS OF THE
CLOSING; PROVIDED, THAT REPRESENTATIONS AND WARRANTIES WHICH ADDRESS MATTERS
ONLY AS OF A CERTAIN DATE SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (OTHER THAN REPRESENTATIONS AND WARRANTIES SUBJECT TO "MATERIALITY"
QUALIFIERS, WHICH SHALL BE TRUE AND CORRECT AS STATED) AS OF SUCH CERTAIN DATE.
(B)
PERFORMANCE.
SELLER SHALL HAVE PERFORMED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL AGREEMENTS, OBLIGATIONS AND COVENANTS REQUIRED TO BE
PERFORMED OR COMPLIED WITH BY IT ON OR PRIOR TO THE CLOSING DATE.
(C)
NO MATERIAL ADVERSE EFFECT.
DURING THE PERIOD FROM THE DATE
HEREOF TO THE CLOSING DATE, THERE SHALL NOT HAVE OCCURRED AND BE CONTINUING ANY
MATERIAL ADVERSE EFFECT.
(D)
DELIVERIES BY SELLER.
SELLER SHALL HAVE DELIVERED TO PURCHASER
THE FOLLOWING:
(I)
A CERTIFICATE, DATED THE CLOSING DATE, OF AN EXECUTIVE OFFICER OF
SELLER CONFIRMING THE MATTERS SET FORTH IN SECTION 6.3(A), (B) AND (C);
(II)
A CERTIFICATE, DATED THE CLOSING DATE, OF THE SECRETARY OR
ASSISTANT SECRETARY OF SELLER CERTIFYING, AMONG OTHER THINGS, THAT ATTACHED OR
APPENDED TO SUCH CERTIFICATE:
(A) IS A TRUE AND CORRECT COPY OF THE CHARTER AND
BY-LAWS OF SELLER, AND ALL AMENDMENTS THERETO; (B) IS A TRUE COPY OF ALL
CORPORATE ACTIONS TAKEN BY IT, INCLUDING RESOLUTIONS OF ITS BOARD OF DIRECTORS
AND SOLE STOCKHOLDER, AUTHORIZING THE CONSUMMATION OF THE ACQUISITION AND THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND EACH OF THE
TRANSACTION DOCUMENTS TO BE DELIVERED BY SELLER PURSUANT HERETO; AND (C) ARE THE
NAMES AND SIGNATURES OF ITS DULY ELECTED OR APPOINTED OFFICERS WHO ARE
AUTHORIZED TO EXECUTE AND DELIVER THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS TO WHICH SELLER IS A PARTY;
(III)
A COUNTERPART OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT DULY
EXECUTED BY SELLER;
(IV)
CERTIFICATES OF GOOD STANDING FROM THE APPROPRIATE STATE AGENCIES,
DATED AS OF A RECENT DATE, CERTIFYING THAT SELLER IS IN GOOD STANDING IN THE
STATE OF MARYLAND AND IN EACH JURISDICTION IN WHICH SELLER IS QUALIFIED TO DO
BUSINESS AS A FOREIGN CORPORATION;
(V)
AN AFFIDAVIT CERTIFYING, UNDER PENALTIES OF PERJURY, SELLER'S
UNITED STATES TAXPAYER IDENTIFICATION NUMBER