to the Inventory set forth on
Schedule 1.1(aaa)(i) (the "IBM Confirmation") stating that the Inventory set
forth on Schedule 1.1(aaa)(i) is required to satisfy IBM's future requirements
and that IBM shall be responsible for such Inventory in accordance with the
provisions set forth in the agreement between IBM and Buyer (as assigned to
Buyer in connection with this Agreement) and (ii) a confirmation from Lenovo
with respect to the Inventory set forth on Schedule 1.1(aaa)(ii) (the "Lenovo
Confirmation") stating that the Inventory set forth on on
Schedule 1.1(aaa)(ii) is required to satisfy Lenovo's future requirements and
that Lenovo shall be responsible for such Inventory in
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accordance with the provisions set forth in the agreement between Lenovo and
Buyer (as assigned to Buyer in connection with this Agreement).
6.6
MONTEREY TRANSITION SERVICES AGREEMENT.
IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE LENOVO TRANSITION, BUYER AND
SELLERS AGREE TO NEGOTIATE IN GOOD FAITH TO ENTER INTO A TRANSITION SERVICES
AGREEMENT TO BE DATED AS OF THE CLOSING DATE PURSUANT TO WHICH BUYER SHALL
PROVIDE, OR CAUSE TO BE PROVIDED, TO SELLERS OR ANY PARTY DESIGNATED BY SELLERS,
CERTAIN IT AND OTHER SERVICES.
ARTICLE VII
CONDITIONS TO THE CLOSING
7.1
Conditions to Buyer's Obligation to Close.
The obligations of
Buyer hereunder are subject to the fulfillment or satisfaction on, and as of the
Closing, of each of the following conditions (any one or more of which may be
waived by Buyer, but only in a writing signed by Buyer):
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF SELLERS SET FORTH IN ARTICLE III SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS, IN EACH CASE AS OF THE DATE OF THIS AGREEMENT, AND AS OF THE
CLOSING WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF THE CLOSING
(EXCEPT TO THE EXTENT EXPRESSLY MADE AS OF A PARTICULAR DATE, IN WHICH CASE AS
OF SUCH DATE).
(B)
COVENANTS.
SELLERS SHALL HAVE PERFORMED OR COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL AGREEMENTS AND COVENANTS REQUIRED BY THIS AGREEMENT
TO BE PERFORMED OR COMPLIED WITH BY SELLERS ON OR PRIOR TO THE CLOSING.
(C)
CLOSING CERTIFICATES.
SELLERS SHALL HAVE DELIVERED TO BUYER AN
OFFICER'S CERTIFICATE TO THE EFFECT THAT EACH OF THE CONDITIONS SPECIFIED ABOVE
IN SECTION 7.1(A) TO 7.1(B) (INCLUSIVE) IS SATISFIED IN ALL RESPECTS.
(D)
NO ACTIONS.
NO ACTION, SUIT, OR PROCEEDING SHALL BE THREATENED OR
PENDING BEFORE ANY COURT OR QUASI JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY
NON-U.S. OR ANY U.S. FEDERAL, STATE OR LOCAL JURISDICTION OR BEFORE ANY
ARBITRATOR WHEREIN AN UNFAVORABLE INJUNCTION, JUDGMENT, ORDER, DECREE, RULING,
OR CHARGE WOULD, IF SUCCESSFUL, (A) PREVENT CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR (B) RESULT IN A MATERIAL ADVERSE
EFFECT TO THE BUSINESS.
(E)
HSR.
NOTIFICATION SHALL HAVE BEEN MADE AND CLEARANCE OBTAINED AND
THE APPLICABLE WAITING PERIOD SHALL HAVE EXPIRED OR TERMINATED UNDER THE
HART-SCOTT-RODINO ACT AND UNDER ANY COMPARABLE FOREIGN ANTITRUST LAWS, IF
APPLICABLE, AS REASONABLY DETERMINED