ASSET PURCHASE AGREEMENT

 

TABLE OF CONTENTS

		Page
Exhibits
Exhibit A -	Bill of Sale
Exhibit B -	Instrument of Assumption
Exhibit C -	Cross Receipt
Exhibit D -	Confidentiality and Non-Disclosure Agreement
Schedules
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

 

 

ASSET PURCHASE AGREEMENT

 

This Asset Purchase Agreement is entered into as of December 13 , 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:

 

Inventory		$	1,842,749
Furniture, Fixtures and Equipment		$	68,000
Vendor Tooling		$	240,000
Ling name and trademark		$	171,251
TOTAL		$	2,325,000

 

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.

 

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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.

 

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

 

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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.

 

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.

 

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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, 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.

 

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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.

 

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

 

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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 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.

 

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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

 

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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

 

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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;

 

(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, instruments and evidence (including certificates of good standing of the Seller in its jurisdiction of organization and the various foreign jurisdictions in which it is qualified, certified charter documents, certificates as to the incumbency of officers and the adoption of authorizing resolutions) as it shall reasonably request in connection with the Closing; and

 

(h)           Seller shall have delivered to Buyer the Acquired Assets, the Ancillary Agreements and such other good and sufficient instruments of transfer and conveyance, in form and substance reasonably satisfactory to Buyer and its counsel, as shall be effective to vest in Buyer, and to evidence the vesting in Buyer of, good and marketable title to the Acquired Assets as provided for herein.

 

5.3           Conditions to Obligations of the Seller .  The obligation of the Seller 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 Buyer shall pay to the Seller, payable by wire transfer of immediately available funds to an account designated by the Buyer, the Purchase Price set forth in Section 1.3;

 

(b)           the representations and warranties of the Buyer set forth in the first sentence of Section 3.1 and in Section 3.2 and any representations and warranties of the Buyer set forth in this Agreement that are qualified as to materiality shall be true and correct in all respects, and all other representations and warranties of the Buyer set forth in this Agreement

 

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