following conditions:
(A)
THE REPRESENTATIONS AND WARRANTIES OF
SELLER GROUP CONTAINED HEREIN THAT ARE QUALIFIED AS TO MATERIALITY SHALL BE TRUE
IN ALL RESPECTS ON AND AS OF THE CLOSING DATE (EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES MADE AS OF A SPECIFIC DATE WHICH SHALL BE TRUE IN ALL MATERIAL
RESPECTS AS OF SUCH DATE) WITH THE SAME FORCE AND EFFECT AS THOUGH MADE ON AND
AS OF SUCH DATE, AND EACH OF THE REPRESENTATIONS AND WARRANTIES OF SELLER THAT
ARE NOT SO QUALIFIED SHALL BE TRUE IN ALL MATERIAL RESPECTS;
(B)
SELLER GROUP SHALL HAVE PERFORMED AND
COMPLIED WITH IN ALL MATERIAL RESPECTS ITS AGREEMENTS, OBLIGATIONS AND COVENANTS
UNDER THIS AGREEMENT REQUIRED TO BE PERFORMED OR COMPLIED WITH BY IT AT OR PRIOR
TO THE CLOSING PURSUANT TO THE TERMS HEREOF;
(C)
THE REQUISITE CONSENTS AND APPROVALS LISTED
ON SCHEDULE 6.3(C) OF THE DISCLOSURE SCHEDULES SHALL HAVE BEEN OBTAINED, AND A
COPY OF EACH SUCH CONSENT OR APPROVAL SHALL HAVE BEEN PROVIDED TO BUYER, AT OR
PRIOR TO CLOSING;
(D)
SELLER SHALL HAVE DELIVERED TO BUYER A
CERTIFICATE AS TO THE SATISFACTION OF THE CONDITIONS CONTAINED IN
SECTIONS 6.3(A) AND 6.3(B), DATED AS OF THE CLOSING AND EXECUTED BY AN OFFICER
OF SELLER OR SUCH SELLING SUBSIDIARY, AS THE CASE MAY BE;
(E)
EACH OF THE DOCUMENTS REFERRED TO IN
SECTION 1.4 SHALL HAVE BEEN EXECUTED BY THE APPROPRIATE MEMBER(S) OF THE SELLER
GROUP AND DELIVERED TO BUYER;
(F)
PROVISION SATISFACTORY TO BUYER SHALL
HAVE BEEN MADE FOR THE RELEASE OF ANY SECURITY INTERESTS WHICH ENCUMBER ANY OF
THE ASSETS OTHER THAN PERMITTED ENCUMBRANCES;
(G)
THERE SHALL NOT BE ANY SUIT, ACTION, OR
OTHER PROCEEDING PENDING OR OVERTLY THREATENED BY ANY GOVERNMENTAL AUTHORITY OR
ADMINISTRATIVE AGENCY OR COMMISSION THAT SEEKS TO ENJOIN OR OTHERWISE PREVENT
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THAT WOULD HAVE A
MATERIAL ADVERSE EFFECT, OTHER THAN SUITS, ACTIONS OR PROCEEDINGS THAT, IN THE
REASONABLE OPINION OF BUYER'S COUNSEL, ARE UNLIKELY TO PREVAIL;
(H)
SELLER GROUP SHALL HAVE PROVIDED TO BUYER
ALL AUDITED AND OTHER REQUIRED FINANCIAL INFORMATION OF THE BUSINESS REQUIRED BY
THE SEC TO BE FILED BY BUYER FOLLOWING THE CLOSING AS PART OF THE FORM 8-K WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT; AND
(I)
NO EVENT SHALL HAVE OCCURRED SINCE THE
DATE OF THIS AGREEMENT AND NO CONDITION OR CIRCUMSTANCE SHALL EXIST THAT WOULD
REASONABLY BE EXPECTED TO GIVE RISE TO ANY MATERIAL ADVERSE EFFECT.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS
SECTION 7.1
SURVIVAL OF REPRESENTATIONS
All representations and warranties made in this Agreement shall survive the
Closing for a period of twelve (12) months, but, except as provided in
Section 8.2, shall not survive any termination of this Agreement; provided,
however, that notwithstanding the foregoing, (i) the representations and
warranties
40
contained in Sections 3.2 and 4.2 shall survive the Closing indefinitely
(subject to any applicable statutes of limitations) and (ii) the representations
and warranties contained in Sections 3.13 and 3.15 shall survive until sixty
(60) days