<PAGE>
EXHBIT 10.35
ASSET PURCHASE AGREEMENT
DATED DECEMBER 13, 2005
BETWEEN
SATCON POWER SYSTEMS, INC.,
SELLER
AND
QUALMARK LING CORPORATION,
BUYER
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Exhibits
Page
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----
<S>
<C>
Exhibit A - Bill of Sale
Exhibit B - Instrument of Assumption
Exhibit C - Cross Receipt
Exhibit D - Confidentiality and Non-Disclosure Agreement
</TABLE>
<TABLE>
<CAPTION>
Schedules
---------
<S>
<C>
Schedule 1.1(b) - Excluded Assets
Schedule 1.5 - PM10
Designs
Schedule 2.1 -
Organization
Schedule 2.3 -
Non-Contravention
Schedule 2.5(a) - Acquired Assets
Schedule 2.5(c) - Security Interests
Schedule 2.6(a) - Intellectual Property
Schedule 2.7 -
Inventory
Schedule 2.8 -
Contracts
Schedule 2.10 - Warranties
</TABLE>
<PAGE>
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement is entered into as of December , 2005 by
and
between Qualmark Ling Corporation, a Colorado corporation (the
"Buyer"), and
SatCon Power Systems, Inc., a Delaware corporation (the
"Seller").
This
Agreement contemplates a transaction in which the Buyer will
purchase
certain of the assets and assume certain of the liabilities of the
Seller
related to its Ling Shaker and Amplifier business.
Capitalized terms used in this Agreement shall have the meanings
ascribed
to them in Article IX.
In
consideration of the representations, warranties and covenants
herein
contained, the Parties agree as follows.
ARTICLE I
THE ASSET PURCHASE
1.1
Purchase and Sale of Assets.
(a) Upon and subject to the terms and conditions of this
Agreement,
the Buyer shall purchase from the Seller, and the Seller shall
sell, transfer,
convey, assign and deliver to the Buyer, at the Closing, for the
consideration
specified below in this Article I, all right, title and interest
in, to and
under the Acquired Assets.
(b) Notwithstanding the provisions of Section 1.1(a), the
Acquired
Assets shall not include the Excluded Assets.
1.2
Assumption of Liabilities.
(a) Upon and subject to the terms and conditions of this
Agreement,
the Buyer shall assume and become responsible for, from and after
the Closing,
the Assumed Liabilities.
(b) Notwithstanding the terms of Section 1.2(a) or any other
provision
of this Agreement to the contrary, the Buyer shall not assume or
become
responsible for, and the Seller shall remain liable for, the
Retained
Liabilities.
1.3
Purchase Price.
(a) The Purchase Price to be paid in full in cash by the Buyer for
the
Acquired Assets at the Closing shall be $2,325,000, subject to
adjustment as set
forth in Section 1.3(b) below.
(b) Prior to Closing Seller and Buyer shall, jointly and in
good
faith, make an evaluation of any changes in the inventory of Seller
as reflected
in Schedule 2.7. Any reduction in such inventory shall result in a
concomitant
reduction in the Purchase Price to be paid at closing, and any
increase in such
inventory shall result in a concomitant increase in the Purchase
Price to be
paid at closing. The amount of such reduction or increase, if any,
shall be
agreed upon in writing by Seller and Buyer immediately prior to
closing, and
such written document will constitute an amendment to this
Agreement.
1.4
Allocation. Seller and Buyer agree to the allocated fair market
value
of the Acquired Assets as follows:
<PAGE>
<TABLE>
<S>
<C>
Inventory
$1,842,749
Furniture, Fixtures and Equipment $ 68,000
Vendor Tooling
$ 240,000
Ling name and trademark
$ 171,251
----------
TOTAL
$2,325,000
==========
</TABLE>
Such
allocation shall be binding on Buyer and Seller for all federal,
state
and local tax purposes. Buyer and Seller shall file with their
respective
federal income tax returns forms that shall reflect such
allocation. In the
event that the Purchase Price is adjusted pursuant to Section
1.3(b) above, the
allocation of the Purchase Price among the Acquired Assets shall
be
appropriately modified to reflect increases or decreases in the
inventory.
1.5
PM10 Designs and Amplifiers. At the Closing, Seller will transfer
to
Buyer and Seller joint ownership of Seller's PM 10 Power Module
designs listed
on Section 1.5 of the Disclosure Schedule (the "PM10 Designs").
Buyer agrees
that it will not use the PM10 Designs for the production of devices
for the
power sources market. Seller agrees that that it will not use the
PM10 Designs
in the production of devices for the electrodynamic vibration
market. Buyer
acknowledges and agrees that Seller retains all of its rights to
build
amplifiers for its EPT Acoustical product line, and Seller
acknowledges and
agrees that, effective on the Closing Date, it shall not retain
rights to
continue the use of the LING name or trademark. Neither party shall
have any
obligation to account to the other for profits derived from its use
of the PM10
Designs in accordance with this Section 1.5.
1.6
The Closing. The Closing shall take place on December , 2005 at
the
offices of Greenberg Traurig LLP in Boston, Massachusetts
commencing at 9:00
a.m. local time on the Closing Date or at such other time and place
as the
parties may mutually agree upon. All transactions at the Closing
shall be deemed
to take place simultaneously, and no transaction shall be deemed to
have been
completed and no documents or certificates shall be deemed to have
been
delivered until all other transactions are completed and all other
documents and
certificates are delivered.
1.7
Further Assurances. At any time and from time to time after the
Closing, at the request of the Buyer and without further
consideration, the
Seller shall execute and deliver such other instruments of sale,
transfer,
conveyance and assignment and take such actions as the Buyer may
reasonably
request to more effectively transfer, convey and assign to the
Buyer, and to
confirm the Buyer's rights to, title in and ownership of, the
Acquired Assets
and to place the Buyer in actual possession and operating control
thereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Buyer that, except as set
forth
in the Schedule hereto, the statements contained in this Article II
are true and
correct as of the date of this Agreement and will be true and
correct as of the
Closing as though made as of the Closing, except to the extent
such
representations and warranties are specifically made as of a
particular date (in
which case such representations and warranties will be true and
correct as of
such date). For purposes of this Article II, the phrase "to the
knowledge of the
Seller" or any phrase of similar import shall be deemed to refer to
the actual
knowledge of the executive officers of the Seller. For the purposes
of this
Article II, any representation or warranty made by the Seller is
made
exclusively in relation to the Acquired Business.
3
<PAGE>
2.1
Organization, Qualification and Corporate Power. The Seller is
a
corporation duly organized, validly existing and in corporate good
standing
under the laws of the State of Delaware. The Seller is duly
qualified to conduct
business and is in corporate good standing under the laws of each
jurisdiction
listed in Schedule 2.1, which jurisdictions constitute the only
jurisdictions in
which the nature of the Seller's businesses or the ownership or
leasing of its
properties requires such qualification, except for those
jurisdictions in which
the failure to be so qualified or in good standing, individually or
in the
aggregate, has not had and would not reasonably be expected to have
a Seller
Material Adverse Effect. The Seller has all requisite corporate
power and
authority to carry on the businesses in which it is engaged and to
own and use
the properties owned and used by it. The Seller has furnished to
the Buyer
complete and accurate copies of its Certificate of Incorporation
and by-laws.
The Seller is not in default under or in violation of any provision
of its
Certificate of Incorporation or by-laws.
2.2
Authorization of Transaction. The Seller has all requisite power
and
authority to execute and deliver this Agreement and the Ancillary
Agreements and
to perform its obligations hereunder and thereunder. The execution
and delivery
by the Seller of this Agreement and, the performance by the Seller
of this
Agreement and the Ancillary Agreements and the consummation by the
Seller of the
transactions contemplated hereby and thereby have been duly and
validly
authorized by all necessary corporate action on the part of the
Seller. This
Agreement has been duly and validly executed and delivered by the
Seller and
constitutes, and each of the Ancillary Agreements, upon its
execution and
delivery by the Seller, will constitute, a valid and binding
obligation of the
Seller, enforceable against the Seller in accordance with its
terms.
2.3
Noncontravention. Except as set forth on Schedule 2.3, neither
the
execution and delivery by the Seller of this Agreement or the
Ancillary
Agreements, nor the consummation by the Seller of the transactions
contemplated
hereby or thereby, will (a) conflict with or violate any provision
of the
Certificate of Incorporation or by-laws of the Seller, (b) require
on the part
of the Seller any notice to or filing with, or any permit,
authorization,
consent or approval of, any Governmental Entity, (c) conflict with,
result in a
breach of, constitute (with or without due notice or lapse of time
or both) a
default under, result in the acceleration of obligations under,
create in any
party the right to terminate, modify or cancel, or require any
notice, consent
or waiver under, any contract or instrument to which the Seller is
a party or by
which the Seller is bound or to which any of its respective assets
is subject,
except for (i) any conflict, breach, default, acceleration,
termination,
modification or cancellation which, individually or in the
aggregate, would not
have a Seller Material Adverse Effect and would not adversely
affect the
consummation of the transactions contemplated hereby or (ii) any
notice, consent
or waiver the absence of which, individually or in the aggregate,
would not have
a Seller Material Adverse Effect and would not adversely affect the
consummation
of the transactions contemplated hereby, (d) result in the
imposition of or
acceleration of any Security Interest upon any assets of the Seller
or (e)
violate any order, writ, injunction, decree, statute, rule or
regulation
applicable to the Acquired Assets or the Acquired Business.
2.4
Tax Matters. The Seller has filed on a timely basis all Tax
Returns
that it was required to file which relate to the Acquired Business,
and all such
Tax Returns were complete and accurate in all material respects and
all Taxes
shown thereon to be due and payable have been paid in full. Seller
has not
received notice of any tax deficiency outstanding, proposed or
assessed against
it, nor does Seller have any knowledge of any basis for any tax
deficiency or
assessment. There are no tax liens upon, pending against or, to the
best
knowledge of Seller, threatened against any Acquired Assets. No
examination or
audit of any Tax Return of the Seller related to the Acquired
Business by any
Governmental Entity is currently in progress or, to the knowledge
of the Seller,
threatened or contemplated. The Seller has not been informed by any
jurisdiction
that the jurisdiction believes that the Seller was required to file
any Tax
Return that was not filed that related to the Acquired Business.
The Seller has
not waived any statute of limitations with respect to Taxes that
relate to the
Acquired Business or agreed to an extension of time with respect to
a Tax
assessment or deficiency that relates to the Acquired Business.
4
<PAGE>
2.5
Ownership and Condition of Assets.
(a) Seller has previously provided Buyer's representatives with
an
opportunity to inspect the tangible personal property listed on
Schedule 2.5(a).
(b) The Seller is the true and lawful owner, and has good title
to,
all of the Acquired Assets, free and clear of all Security
Interests, except as
set forth in Schedule 2.5(b). Upon execution and delivery by the
Seller to the
Buyer of the instruments of conveyance referred to in Sections 5.1
and 5.2, the
Buyer will become the true and lawful owner of, and will receive
good title to,
the Acquired Assets, free and clear of all Security Interests other
than those
set forth in Schedule 2.5(b).
(c) The Acquired Assets are being sold AS IS/WITH ALL FAULTS.
The
machinery and equipment included in the Acquired Assets is
sufficient to operate
the Acquired Business as it has been conducted by the Seller during
the year
prior to the date hereof. None of the Acquired Assets has been
affected by any
fire, accident, act of God or any other casualty that materially
and adversely
impairs its function in the Acquired Business.
2.6
Intellectual Property. At the Closing, Seller will deliver all of
the
Ling Shaker and Amplifier Intellectual Property used to operate the
Acquired
Business. None of the Acquired Assets or the Ling Shaker and
Amplifier
Intellectual Property included therein infringes upon, or is
subject to any
claims of such infringement upon, the Intellectual Property of any
third party.
2.7
Inventory. Schedule 2.7 lists each item of inventory held for sale
by
the Acquired Business other than those items listed on Schedule
1.1(b) (Excluded
Assets). The inventories of Seller reflected in Schedule 2.7 have
been valued in
Seller's reasonable determination at the lower of cost or fair
market value in
accordance with GAAP except, for the purpose of any reduction or
increase of the
Purchase Price pursuant to Section 1.3(b) hereof, that (i) such
inventory has
not been and shall not be adjusted to reflect any reserves for slow
moving items
and (ii) such inventory has been and shall be adjusted to reflect
reserves for
the value of obsolete materials and materials of below standard
quality.
2.8
Contracts.
(a) Schedule 2.8
lists the following agreements to which the Seller is
a party as of the date of this Agreement that relate to the
Acquired Business:
(i) any agreement (or group of related agreements) for the
lease
of personal property from or to third parties;
(ii) any agreement (or group of related agreements) for the
purchase or sale of products or for the furnishing or receipt of
services;
(iii) any agreement (or group of related agreements) under
which
it has created, incurred, assumed or guaranteed (or may create,
incur, assume or
guarantee) indebtedness (including capitalized lease obligations)
or under which
there is imposed (or may be imposed) a Security Interest on any of
its assets,
tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
and
(vi) any other agreement (or group of related agreements)
either
involving more than $500 or not entered into in the ordinary course
of business.
(b) The Seller has delivered to the Buyer a complete and accurate
copy
of each agreement listed in Schedule 2.6 or Schedule 2.8. With
respect to each
agreement so listed: (i) the agreement is legal,
5
<PAGE>
valid, binding and enforceable and in full force and effect; (ii)
for those
agreements to which the Seller is a party, the agreement is
assignable by the
Seller to the Buyer without the consent or approval of any party
(except as set
forth in Schedule 2.3) and will continue to be legal, valid,
binding and
enforceable and in full force and effect immediately following the
Closing in
accordance with the terms thereof as in effect immediately prior to
the Closing;
and (iii) the Seller is not in breach or violation of, or default
under, any
such agreement, and no event has occurred, is pending or, to the
knowledge of
the Seller, is threatened, which, after the giving of notice, with
lapse of
time, or otherwise, would constitute a breach or default by the
Seller; and (iv)
to Seller's knowledge, no other party to any such agreement is in
breach
thereof, and no party is paying liquidated damages in lieu of
performance
thereunder.
2.9
Litigation. As of the date of this Agreement, there is no Legal
Proceeding which is pending or has been threatened in writing
against the Seller
related to the Acquired Business which (a) seeks either damages or
equitable
relief or (b) in any manner challenges or seeks to prevent, enjoin,
alter or
delay the transactions contemplated by this Agreement.
2.10
Warranties. No product or service manufactured, sold, leased,
licensed
or delivered by the Seller related to the Acquired Business is
subject to any
guaranty, warranty, right of return, right of credit or other
indemnity other
than the applicable standard terms and conditions of sale or lease
of the
Seller, which are set forth in Schedule 2.10.
2.11
Environmental Matters.
(a) In connection with the Acquired Business, the Seller has
complied
with all applicable Environmental Laws, except for violations of
Environmental
Laws that, individually or in the aggregate, have not had and would
not
reasonably be expected to have a Seller Material Adverse Effect.
There is no
pending or, to the knowledge of the Seller, threatened civil or
criminal
litigation, written notice of violation, formal administrative
proceeding, or
investigation, inquiry or information request by any Governmental
Entity,
relating to any Environmental Law involving the Acquired
Business.
(b)
The Seller is not a party to or bound by any court order,
administrative order, consent order or other agreement with any
Governmental
Entity entered into in connection with any legal obligation or
liability arising
under any Environmental Law relating to the Acquired Business.
2.12
Legal Compliance. The Seller is currently conducting the
Acquired
Business in compliance with each applicable law (including rules
and regulations
thereunder) of any federal, state, local or foreign government, or
any
Governmental Entity, except for any violations or defaults that,
individually or
in the aggregate, have not had and would not reasonably be expected
to have a
Seller Material Adverse Effect. The Seller has not received any
notice or
communication from any Governmental Entity alleging noncompliance
with any
applicable law, rule or regulation relating to the Acquired
Business.
2.13
Certain Business Relationships With Affiliates. No affiliate of
the
Seller (a) owns any property or right, tangible or intangible,
which is used in
the Acquired Business, (b) has any claim or cause of action against
the Seller,
or (c) owes any money to, or is owed any money by, the Seller
relating to the
Acquired Business.
2.14
Brokers' Fees. The Seller does not have any liability or obligation
to
pay any fees or commissions to any broker, finder or agent with
respect to the
transactions contemplated by this Agreement.
6
<PAGE>
2.15
Financial Statements and Financial Condition. Seller has delivered
to
Buyer its summary of unaudited revenues and materials costs for the
Acquired
Business for the periods 2003, 2004 and 2005 (the "Financial
Information"). The
Financial Information is correct, complete and accurate in all
material
respects. Seller agrees to cooperate with Buyer after the Closing
in providing
such information as Seller may have and as Buyer may reasonably
request to
assist the Buyer in filing any necessary SEC form 8-K, or other
governmental
compliance or reporting requirements.
2.16
Insurance. The Acquired Business and the Acquired Assets are
covered
by policies of property loss, casualty and liability insurance.
There are no
claims pending or, to the best knowledge of Seller, threatened
under Seller's
property loss, casualty or liability insurance policies, and no
claim has been
made thereunder during the three years preceding the date hereof.
All premiums
due and payable thereon have been paid, and all such policies are
in full force
and effect in accordance with their respective terms. Such policies
are
underwritten by financially sound and reputable insurers and
constitute
commercially reasonable insurance coverage in respect of Seller's
past practice
and companies similarly situated with Seller.
2.17 Fraudulent
Conveyances; Bankruptcy. Seller is not entering into this
Agreement with the intent to hinder, delay or defraud present or
future
creditors. Seller is not now insolvent and is not, and has not
been, involved in
any bankruptcy or similar proceeding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The
Buyer represents and warrants to the Seller that the statements
contained in this Article III are true and correct as of the date
of this
Agreement and will be true and correct as to the Closing as though
made as of
the Closing.
3.1
Organization and Corporate Power. The Buyer is a corporation
duly
organized, validly existing and in good standing under the laws of
the State of
Colorado. The Buyer has all requisite corporate power and authority
to carry on
the businesses in which it is engaged and to own and use the
properties owned
and used by it.
3.2
Authorization of the Transaction. The Buyer has all requisite power
and
authority to execute and deliver this Agreement and the Ancillary
Agreements and
to perform its obligations hereunder and thereunder. The execution
and delivery
by the Buyer of this Agreement and the Ancillary Agreements and the
consummation
by the Buyer of the transactions contemplated hereby and thereby
have been duly
and validly authorized by all necessary corporate action on the
part of the
Buyer. This Agreement has been duly and validly executed and
delivered by the
Buyer and constitutes a valid and binding obligation of the Buyer,
enforceable
against it in accordance with its terms.
3.3
Noncontravention. Neither the execution and delivery by the Buyer
of
this Agreement or the Ancillary Agreements, nor the consummation by
the Buyer of
the transactions contemplated hereby or thereby, will (a) conflict
with or
violate any provision of the Certificate of Incorporation or
by-laws of the
Buyer, (b) require on the part of the Buyer any filing with, or
permit,
authorization, consent or approval of, any Governmental Entity, (c)
conflict
with, result in breach of, constitute (with or without due notice
or lapse of
time or both) a default under, result in the acceleration of
obligations under,
create in any party any right to terminate, modify or cancel, or
require any
notice, consent or waiver under, any contract or instrument to
which
7
<PAGE>
the Buyer is a party or by which it is bound or to which any of its
assets is
subject, except for (i) any conflict, breach, default,
acceleration,
termination, modification or cancellation which would not adversely
affect the
consummation of the transactions contemplated hereby or (ii) any
notice, consent
or waiver the absence of which would not adversely affect the
consummation of
the transactions contemplated hereby, or (d) violate any order,
writ,
injunction, decree, statute, rule or regulation applicable to the
Buyer or any
of its properties or assets.
ARTICLE IV
PRE-CLOSING COVENANTS
4.1
Closing Efforts. Each of the Parties shall use its Reasonable
Best
Efforts to take all actions and to do all things necessary, proper
or advisable
to consummate the transactions contemplated by this Agreement,
including using
its Reasonable Best Efforts to ensure that (i) its representations
and
warranties remain true and correct in all material respects through
the Closing
Date and (ii) the conditions to the obligations of the other Party
to consummate
the transactions contemplated by this Agreement are satisfied.
4.2
Governmental and Third-Party Notices and Consents.
(a) Each Party shall use its Reasonable Best Efforts to obtain, at
its
expense, all waivers, permits, consents, approvals or other
authorizations from
Governmental Entities, and to effect all registrations, filings and
notices with
or to Governmental Entities, as may be required for such Party to
consummate the
transactions contemplated by this Agreement and to otherwise comply
with all
applicable laws and regulations in connection with the consummation
of the
transactions contemplated by this Agreement.
(b) The Seller shall use its Reasonable Best Efforts to obtain, at
its
expense, all such waivers, consents or approvals from third
parties, and to give
all such notices to third parties, as are required and as are
listed in the
Schedules hereto.
(c) If (i) any of the Assigned Contracts or other assets or
rights
constituting Acquired Assets may not be assigned and transferred by
the Seller
to the Buyer (as a result of either the provisions thereof or
applicable law)
without the consent or approval of a third party, (ii) the Seller,
after using
its Reasonable Best Efforts, is unable to obtain such consent or
approval prior
to the Closing and (iii) the Closing occurs nevertheless, then (A)
such Assigned
Contracts and/or other assets or rights shall not be assigned and
transferred by
the Seller to the Buyer at the Closing and the Buyer shall not
assume the
Seller's liabilities or obligations with respect thereto at the
Closing, (B) the
Seller shall continue to use its Reasonable Best Efforts to obtain
the necessary
consent or approval as soon as practicable after the Closing, and
(C) upon the
obtaining of such consent or approval, the Buyer and the Seller
shall execute
such further instruments of conveyance (in substantially the form
executed at
the Closing) as may be necessary to assign and transfer such
Assigned Contracts
and/or other assets or rights (and the associated liabilities and
obligations of
the Seller) to the Buyer.
4.3
Operation of Business. Except as contemplated by this
Agreement,
including as set forth in the Schedules attached hereto and made a
part hereof,
during the period from the date of this Agreement to the Closing,
the Seller
shall conduct its operations relating to the Acquired Business in
the ordinary
course and in compliance with all applicable laws and regulations
and, to the
extent consistent therewith, use its Reasonable Best Efforts to
preserve intact
its current business organization, keep its physical assets in good
working
condition, keep available the services of its current officers and
employees and
preserve its relationships with customers, suppliers and others
having business
dealings with it. Seller will immediately notify Buyer in the
8
<PAGE>
event Seller is unable (or reasonably believes it may become
unable) to comply
with the requirements of this Section 4.3.
4.4
Exclusivity. The Seller shall not, and the Seller shall require
each of
its officers, directors, employees, representatives and agents not
to, directly
or indirectly, initiate, solicit, encourage or otherwise facilitate
any inquiry,
proposal, offer or discussion with any party (other than the Buyer)
concerning
any merger, reorganization, consolidation, recapitalization,
business
combination, liquidation, dissolution, share exchange, sale of
stock, sale of
material assets or similar business transaction involving the
Acquired Business
or engage in discussions or negotiations with any party (other than
the Buyer)
concerning any such transaction.
ARTICLE V
CONDITIONS TO CLOSING
5.1
Conditions to Obligations of each Party. The respective obligations
of
each Party to consummate the transactions contemplated by this
Agreement to be
consummated at the Closing are subject to the satisfaction of the
following
conditions:
(a) The Buyer shall have obtained the requisite financing
sufficient
to pay the consideration required in connection with the purchase
of the
Acquired Assets; and
(b) the Buyer and the Seller shall have executed and delivered to
each
other a cross-receipt in the form attached hereto and made a hereof
as Exhibit C
evidencing the transactions referred to above;
(c) Buyer shall have conducted its due diligence with respect to
the
Seller's books and records that relate to the Acquired Business and
shall have
taken an inventory, verified by the Seller's financial records that
relate to
the Acquired Business.
(e) This Agreement and the execution hereof by each of the
parties
hereto shall have been ratified by their respective Boards of
Directors.
5.2
Conditions to Obligations of the Buyer. The obligation of the Buyer
to
consummate the transactions contemplated by this Agreement to be
consummated at
the Closing is subject to the satisfaction of the following
additional
conditions:
(a) the Seller shall have obtained at its own expense (and shall
have
provided copies thereof to the Buyer) all of the waivers, permits,
consents,
approvals or other authorizations, and effected all of the
registrations,
filings and notices, referred to in Section 4.2 which are required
on the part
of the Seller, except for any failure of which to obtain or effect
would not,
individually or in the aggregate, have a material adverse effect on
the right of
the Buyer to own, operate or control the Acquired Assets following
the Closing
or on the ability of the Parties to consummate the transactions
contemplated by
this Agreement;
(b) the representations and warranties of the Seller set forth in
this
Agreement shall be true and correct as of the date of this
Agreement and shall
be true and correct as of the Closing as though made as of the
Closing, except
to the extent that the inaccuracy of any such representation or
warranty is the
result of events or circumstances occurring subsequent to the date
of this
Agreement and any such inaccuracies, individually or in the
aggregate, would not
have a material adverse effect on the right of the Buyer to own,
operate or
control the Acquired Assets following the Closing or on the ability
of the
Parties to consummate the transactions contemplated by this
Agreement;
9
<PAGE>
(c) the Seller shall have performed or complied in all material
respects with its agreements and covenants required to be performed
or complied
with under this Agreement as of or prior to the Closing;
(d) no Legal Proceeding shall be pending wherein an unfavorable
judgment, order, decree, stipulation or injunction would (i)
prevent
consummation of the transactions contemplated by this Agreement,
(ii) cause the
transactions contemplated by this Agreement to be rescinded
following
consummation or (iii) affect adversely the right of the Buyer to
own, operate or
control any of the Acquired Assets, or to conduct the Acquired
Business as
currently conducted by the Seller, following the Closing, and no
such judgment,
order, decree, stipulation or injunction shall be in effect;
(e) the Seller shall have delivered to the Buyer the Seller
Certificate, the Seller's Secretary Certificate, and the Ancillary
Agreements;
(f) the Seller shall have delivered to the Buyer an update of
each
list contained in the Schedules hereto that lists or describes
Acquired Assets;
(g) the Buyer shall have received such other certificates,
instru
