AND CORRECT (WITHOUT GIVING EFFECT TO ANY QUALIFICATION AS TO MATERIALITY
OR ANY SUPPLEMENTS TO THE SCHEDULES MADE PURSUANT TO SECTION 5(I)) AS OF SUCH
DATE), EXCEPT WHERE ALL INACCURACIES OF SUCH REPRESENTATIONS AND WARRANTIES
WOULD (OR COULD REASONABLY BE EXPECTED TO) NOT ADVERSELY AFFECT THE ABILITY OF
THE BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND (B)
THE BUYER SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS WITH ALL OF ITS
COVENANTS AND AGREEMENTS HEREUNDER;
(II)
THERE MUST NOT BE ANY INJUNCTION,
JUDGMENT, ORDER, DECREE, RULING, OR CHARGE IN EFFECT PREVENTING CONSUMMATION OF
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY SUIT OR ACTION
PENDING BY A GOVERNMENTAL AUTHORITY TO ENJOIN THE CONSUMMATION OF ANY OF THE
TRANSACTIONS, CONTEMPLATED BY THIS AGREEMENT;
(III)
ANY REQUIRED WAITING PERIOD UNDER THE HSR
ACT SHALL HAVE EXPIRED OR EARLY TERMINATION SHALL HAVE BEEN GRANTED WITH RESPECT
TO SUCH PERIOD;
(IV)
IF THERE HAS BEEN DAMAGE, DESTRUCTION OR
CONDEMNATION OF THE TYPE DESCRIBED IN THE FIRST SENTENCE OF SECTION 5(E), THE
BUYER'S ELECTION TO CLOSE MUST HAVE BEEN EXERCISED AND, IN THE CASE OF SECTION
5(E)(II)(X), AGREED TO BY THE SELLER;
(V)
TAKEN TOGETHER, THE EFFECT OF ALL
INACCURACIES OF REPRESENTATIONS AND WARRANTIES OF THE SELLER AS DESCRIBED IN
SECTION 7(A)(I)(A) IS LESS THAN THREE MILLION DOLLARS ($3,000,000);
(VI)
THE BUYER SHALL HAVE DELIVERED TO THE SELLER
THE ESTIMATED PURCHASE PRICE SET FORTH IN THE INTERIM CLOSING STATEMENT IN CASH
BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FEDERAL FUNDS;
(VII)
EACH OF THE COMMERCIAL AGREEMENTS SHALL HAVE
BEEN EXECUTED AND DELIVERED BY EACH OF THE PARTIES THERETO;
(VIII)
WITH RESPECT TO EACH OTHER PURCHASE AGREEMENT, THE
CLOSING (AS DEFINED IN SUCH OTHER PURCHASE AGREEMENT) UNDER SUCH OTHER PURCHASE
AGREEMENT SHALL HAVE OCCURRED SIMULTANEOUSLY WITH THE CLOSING; AND
(IX)
THE BUYER SHALL HAVE DELIVERED, OR CAUSED TO
BE DELIVERED, TO THE SELLER EACH TRANSACTION AGREEMENT TO WHICH ANY BUYER PARTY
IS A PARTY.
The Seller may waive any condition specified in this Section 7(b) if it executes
a writing so stating at or before the Closing.
8.
Obligations, Survival and
Indemnification.
(A)
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS.
(I) ALL OF THE REPRESENTATIONS CONTAINED IN SECTIONS 3(A) AND 4
(OTHER THAN THE FUNDAMENTAL REPRESENTATIONS)
34
SHALL SURVIVE THE CLOSING UNTIL APRIL 1, 2007; AND (II) THE FUNDAMENTAL
REPRESENTATIONS SHALL SURVIVE THE CLOSING UNTIL NINETY (90) DAYS AFTER THE
EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS.
THE COVENANTS AND
OBLIGATIONS CONTAINED IN SECTIONS 2 AND 6 AND ALL OTHER COVENANTS AND
OBLIGATIONS CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE CLOSING INDEFINITELY.
(B)
INDEMNIFICATION PROVISIONS FOR BENEFIT OF
THE BUYER.
(I)
REPRESENTATIONS AND WARRANTIES -
GENERAL.
IN THE EVENT: (X) THE SELLER BREACHES (WITHOUT GIVING EFFECT TO ANY
QUALIFICATION AS TO MATERIALITY (INCLUDING MATERIAL ADVERSE EFFECT)) ANY OF ITS
REPRESENTATIONS OR WARRANTIES CONTAINED HEREIN (OTHER THAN THOSE CONTAINED IN
SECTION 4(B) (CAPITALIZATION) AND SECTION 4(F) (TAX MATTERS)); AND (Y) THE BUYER
MAKES A WRITTEN CLAIM FOR INDEMNIFICATION AGAINST THE SELLER PURSUANT TO SECTION