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EXHIBIT 10.33
EXECUTION COPY
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") entered into on
October
15, 2004, by and between NORTH POINTE INSURANCE COMPANY, a
Michigan corporation
("Seller"), and THI HOLDINGS (DELAWARE), INC., a Delaware
corporation ("Buyer").
The Buyer and Seller are referred to collectively herein as the
"Parties".
Certain capitalized terms used herein are defined in Section l
hereof.
RECITALS
WHEREAS, Seller is a Michigan corporation conducting a property
and
casualty insurance company business in the State of Michigan;
and
WHEREAS, Buyer, through its subsidiaries, operates a property
and casualty
insurance company in the State of Michigan; and
WHEREAS, on the terms and subject to the conditions contained in
this
Agreement, Buyer desires to pursue certain policy replacements
of contracts of
non-standard automobile insurance currently underwritten by
Seller, and Seller
desires to exit the business of underwriting and issuing
contracts of
non-standard automobile insurance, to non-renew its existing
non-standard
automobile insurance policies, and to assist Buyer in its
pursuit of such
replacements of contracts of non-standard automobile insurance
currently
underwritten by Seller in the State of Michigan.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants
and agreements contained in this Agreement, intending to be
legally bound, the
Parties represent, warrant, covenant and agree as follows:
SECTION 1. DEFINITIONS.
"Acquired Assets" means all of Seller's agent lists and Seller's
right to
underwrite and offer policyholder replacement policies connected
to Seller's
non-standard automobile business in the State of Michigan, and
the other assets
described in EXHIBIT A hereto. Notwithstanding anything in this
Agreement to the
contrary, both parties acknowledge that under the American
Agency System, the
independent agents that market Seller's non-standard automobile
insurance
products and have the right to solicit renewals of those
policies. The Parties
acknowledge that Seller has not claimed that it is selling to
Buyer any rights
to the renewals that are superior to those claimed by those
agents.
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"Basis" means any past or present fact, situation, circumstance,
status,
condition, activity, practice, plan, occurrence, event,
incident, action,
failure to act, or transaction that forms or could form the
basis for any
specified consequence.
"Bill of Sale" has the meaning set forth in Section 10(a).
"Closing" has the meaning set forth in Section 2(e) below.
"Closing Date" has the meaning set forth in Section 2(e)
below.
"Confidential Material" has the meaning set forth in Section
12(e) below.
"Damages" has the meaning set forth in Section 14(b)(i).
"Days" shall mean calendar days.
"Exhibit or Schedule" shall mean the exhibits and schedules
delivered by
Seller to Buyer and attached to this Agreement.
"Indemnified Party" has the meaning set forth in Section
14(b)(iii) below.
"Indemnifying Party" has the meaning set forth in Section
14(b)(iii)
below.
"Knowledge" or words of similar import means actual knowledge
after
reasonable investigation.
"Legal Requirement" means any federal, state, local, municipal,
foreign,
international or other administrative order, constitution, law,
ordinance,
principle of common law, regulation, statute or treaty.
"Liability" means any liability (whether known or unknown,
whether
asserted or unasserted, whether absolute or contingent, whether
accrued or
unaccrued, whether liquidated or unliquidated, and whether due
or to become
due), including any liability for Taxes.
"Material Adverse Effect" means any material adverse effect on
the
business, financial condition, results of operations or
properties as to any of
the Acquired Assets.
"Opt Out" means an agent's response to Seller's notification of
the
transaction described in this Agreement, instructing the parties
not to offer
Buyer's replacement policy to the agent's clients, a list of
which Buyer will
provide to Seller by October 27, 2004.
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"Ordinary Course of Business" means the ordinary course of
business
consistent with past custom and practice (including with respect
to quantity and
frequency).
"Party" or "Parties" has the meaning set forth in the preface
above.
"Person" means an individual, a partnership, a corporation
(including
limited liability companies), an association, a joint stock
company, a trust, a
joint venture, an unincorporated organization, or a governmental
entity (or any
department, agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(c)
below.
"Security Interest" means any mortgage, encumbrance, charge,
claim,
equitable interest, lien, option, pledge, Security Interest, or
right of first
refusal, including any restriction on use, voting, transfer,
receipt of income,
or exercise of any other attribute of ownership, other than (a)
mechanic's,
materialmen's, and similar liens, (b) liens for taxes not yet
due and payable or
for taxes that the taxpayer is contesting in good faith through
appropriate
proceedings, and (c) purchase money liens and liens securing
rental payments
under capital lease arrangements.
"Tax" or "Taxes" means any federal, state, local, or foreign
income, gross
receipts, license, payroll, employment, excise, severance,
stamp, occupation,
premium, windfall profits, environmental (including taxes under
Code Section
59A), customs duties, capital stock, franchise, profits,
withholding, social
security (or similar), unemployment, disability, real property,
personal
property, sales, use, transfer, registration, value added,
alternative or add-on
minimum tax or estimated tax, including any interest, penalty,
or addition
thereto, whether disputed or not.
SECTION 2. BASIC TRANSACTION.
(a) Purchase and Sale of Assets. On and subject to the terms
and
conditions of this Agreement, Buyer agrees to purchase from
Seller, and Seller
agrees to sell, transfer, convey, and deliver to Buyer, all of
the Acquired
Assets free and clear of all Security Interests at the Closing
for the
consideration specified below.
(b) No Assumption of Seller's Liabilities. Buyer will not assume
or have
any responsibility with respect to any obligation or Liability
of Seller, and
shall not become a successor in interest of Seller that may
result in Buyer
assuming any obligation or Liability of Seller. For the
avoidance of doubt,
without limitation, Buyer shall not assume, directly or
indirectly, any of the
Seller's liabilities and or obligations, whether direct,
indirect, contingent or
otherwise, related to any insurance policies issued by
Seller.
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(c) Purchase Price. The aggregate purchase price of the Acquired
Assets
shall be Four Million Dollars ($4,000,000) ("Purchase Price").
Subject to the
terms and conditions of this Agreement, Buyer agrees to wire in
immediately
available funds to Seller at Closing, the sum of Three Million
Dollars
($3,000,000) ("Closing Payment"). Buyer will wire to Seller the
sum of One
Million Dollars ($1,000,000) ("Second Payment") on the first
business day
following 60 days after the Closing, upon Seller's doing the
following
post-closing requirements during that 60 day period:
(i) Keeping to its ordinary course of business, underwrite
and
service the in-force non-standard policies, including those
that are renewed on Seller's paper prior to Closing, the
policy terms of which expire after Closing.
(ii) Provide daily transaction detail supporting upcoming
policy
renewals to be effective 40 days prior to expiration for
policies expiring on and after December 1, 2004, in a
mutually
agreed upon format. Additionally, Seller will provide to
Buyer
a listing of changes and copies of endorsements affecting
policies referenced above.
(iii) Within two (2) business days following Closing, Seller
shall
send letters which have been mutually agreed upon by the
Parties to all of Seller's agents notifying them of this
transaction and specifying the last day for the agent to
submit any pending policies.
(iv) Issue non-renewal notices along with a cover letter
mutually
agreed upon by the Parties to all insureds, agents and
legally
interested third parties 33 days prior to expiration in a
mutually agreed upon format for policies expiring on and
after
December 1, 2004. For any insured for whom the agent has not
provided a written intent to Opt Out and to whom Buyer
wishes
to offer a replacement policy, Buyer will provide Seller
with
a policy application, premium quote and any other document
that Buyer deems appropriate, for Seller to mail to the
insured shortly after the mailing of the non-renewal notice.
(v) Send its Vice President of Marketing or other members of
its
marketing staff to visit the agents who produce in the
aggregate no less than 75% of Seller's current book of
non-standard auto business to inform such agents of this
transaction, and attempt to persuade those agents to move
their business to Buyer. Buyer's representative shall be
afforded an opportunity to participate in such agent visits.
(vi) After October 29, 2004, Seller shall cease accepting
any
non-standard automobile applications from agents and shall
return any application to the agent from whom it was
received.
Upon Seller performing all of these post-closing requirements
during the
period 60 days following Closing, Buyer will pay Seller the
Second Payment
within two (2) business days of the 60th day following Closing.
For the
avoidance of doubt, however, Seller's obligation to
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continue to perform all of the above post-closing requirements,
shall be ongoing
following the payment of the Second Payment, will not cease upon
payment of the
Second Payment, and shall continue until all of Seller's
non-standard automobile
policies shall legally non-renew.
Seller has provided necessary instructions for wire transfers of
the
Closing Payment. Seller will provide to Buyer any change in wire
transfer
instructions no less than three days prior to the Second Payment
date.
(d) Closing. The closing of the transactions contemplated herein
(the
"Closing") will take place on or before October 15, 2004 in
Southfield, MI at
Seller's business offices, at which time and place, subject to
the satisfaction
or waiver of each condition precedent, the assets and
instruments of conveyance
will be delivered and all rights, title and interest will vest
in the party
receiving them (the "Closing Date").
(e) Bonus Payments. In addition to the Purchase Price, subject
to the
terms and conditions of this Agreement, Buyer shall pay Seller
performance
bonuses for assisting Buyer in converting Seller's in-force
policies (as
measured at Closing), such performance bonuses to be paid as
bonus level
percentages are achieved and reported in Buyer's reports ("Bonus
Payments"). A
policy is "renewed" when the first payment is received on
Buyer's new or renewal
policies relating to Seller's previous in-force policy. Seller
shall pay Buyer
$250,000 for assisting Buyer if Buyer converts 28% of the
Sellers' in-force
policies (as measured from Closing) no later than nine months
following the
Closing. Buyer shall pay Seller an additional $250,000 if the
number of in-force
policies that are converted reaches 35% of the Sellers' in-force
policies (as
measured from Closing) no later than nine months following the
Closing. Bonus
Payments will be paid as earned and reported in Buyer's reports.
Buyer will
provide Seller daily transaction detail supporting its
replacements of Seller's
policies in a mutually agreed upon format.
The Parties will calculate the bonus level percentages as
follows:
(i) Credit will be given for policies that cancel and renew
with
Buyer through the same agent, and within 45 days of the date
of cancellation.
(ii) Policies written by agents who have been cancelled by any
of
Buyer's affiliates in the 4 year period prior to closing
will
not be included in the calculation of in-force policies at
Closing.
(iii) Policies written by agents to whom Buyer does not offer
an
agent agreement will not be included in the calculation of
in-force policies at Closing.
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In order for Buyer to achieve its goal of transferring business
and for
Seller to achieve its goal of receiving the Bonus Payments, the
Parties also
agree Buyer will not file a rate change regarding Seller's
insurance contracts
in excess of 2% overall for a period of four months following
the Closing Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby
represents and warrants to the Buyer as follows:
(a) Organization. Seller is duly organized and validly existing
as a
corporation and in good standing under the laws the State of
Michigan, and has
all requisite power and authority to own, lease, and sell the
assets, properties
and business contemplated in this Agreement.
(b) Authority. Seller has all requisite corporate power and
authority to
execute and deliver this Agreement and to carry out its
obligations hereunder.
The execution and delivery of this Agreement and the
consummation of the
transactions contemplated hereby have been duly authorized by
all necessary
corporate action on the part of Seller and this Agreement has
been duly executed
and delivered by Seller and constitutes the valid and legally
binding obligation
of Seller, enforceable against it in accordance with its terms,
except as
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium, rehabilitation, or similar laws
affecting the
enforcement of creditors' rights generally.
(c) Brokers' Fees. Seller has no liability or obligation to pay
any fees
or commissions to any broker, finder, or agent with respect to
the transactions
contemplated by this Agreement for which the Buyer or any of
Buyer's affiliates
could become liable or obligated. Seller will indemnify Buyer
for any
misrepresentation contained in this Section 3(c).
(d) Noncontravention. Neither the execution and the delivery of
this
Agreement, nor the consummation of the transactions contemplated
thereby, will
(i) violate any statute, regulation, rule, injunction, judgment,
order, decree,
ruling, charge, or other restriction of any government,
governmental agency, or
court to which Seller is subject or any provision of the charter
or bylaws of
Seller or (ii) conflict with, result in a breach of, constitute
a default under,
result in the acceleration of, create in any party the right to
accelerate,
terminate, modify, or cancel, or require any notice under any
material
agreement, contract, lease, license or instrument to which
Seller or any of its
material properties or assets are subject (or result in the
imposition of any
Security Interest upon any of its assets), except where the
violation, conflict,
breach, default, acceleration, termination, modification,
cancellation, failure
to give notice or creation of a Security Interest would not
materially impair
the ability of the Parties to consummate the transactions
contemplated by this
Agreement.
(e) Title to Acquired Assets. Seller has good and marketable
title to each
of the Acquired Assets, and except for liens to be paid and
released at Closing,
all of which shall be
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satisfied by Seller at or prior to Closing, each of the Acquired
Assets is free
and clear of all Security Interests, restrictions, liens and
other encumbrances.
(f) Notices, Consents and Approvals. Other than as set forth in
SCHEDULE
3(f) hereto, the execution and delivery by the Seller of this
Agreement, the
performance by the Seller of Seller's obligations hereunder, and
the
consummation by the Seller of the transactions contemplated
hereby do not
require the Seller to obtain any consent, approval or action of,
or make any
filing with or give any notice to, any governmental or
regulatory body or other
third party.
(g) Undisclosed Liabilities. There is no Liability relating to
the
transactions contemplated under this Agreement (and to the
Knowledge of Seller
there is no Basis for any present or future charge, complaint,
action, suit,
proceeding, hearing, investigation, claim, or demand against
Seller giving rise
to any such Liability) not retained by Seller that has not been
disclosed by
Seller to Buyer or shall not be disclosed by Seller to Buyer
prior to the
Closing Date.
(h) Legal Compliance. Seller is not in violation of any federal,
state or
local law, ordinance, statute, rule, regulation, order,
judgment, injunction,
award, decree or requirement of any governmental or regulatory
body, court or
arbitrator, which violation individually or in the aggregate
would have a
Material Adverse Effect on any of the Acquired Assets, and
Seller has not
received any written notice that any such violation is being or
may be alleged.
(i) Powers of Attorney. There are no outstanding powers of
attorney
executed that would have any effect on the Acquired Assets or
the transactions
contemplated herein.
(j) Litigation. To the Knowledge of the Seller, there are no
actions,
suits, hearings, arbitration, proceedings (public or private) or
governmental
investigations that have been brought by or against any
governmental authority
or any other Person (collectively, "Proceedings") pending or
threatened in
writing against or affecting the Seller or any of the Acquired
Assets as to
which could result in a determination or resolution adverse and
which, if so
adversely determined or resolved, would have a Material Adverse
Effect; and (ii)
there are no existing or threatened in writing orders, judgments
or decrees
(other than those of general application) of any governmental
authority which
would have a Material Adverse Effect on any of the Acquired
Assets.
(k) Tax Matters. Seller has, and as of the Closing Date will
have, paid
and discharged all Taxes owed by Seller attributable to the
Acquired Assets or
the operation of the Acquired Assets by Seller (or any
affiliate) that are due
and payable, excepting such taxes,
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assessments and other levies which will not be due until or
after the Closing
Date and Taxes that the taxpayer is contesting in good faith
through appropriate
proceedings.
(l) Disclosure. To the best of Seller's Knowledge, this
Agreement,
including the Schedules and any other Exhibits, does not contain
any untrue
statement of a material fact or omit to state any fact necessary
in order to
make the statements and information contained herein, in light
of the
circumstances in which they are made, not misleading. There is
no fact which has
not been disclosed to the Buyer in writing of which Seller is
aware and which is
or could reasonably be anticipated to be material to Buyer's
decision to
consummate the transactions contemplated by this Agreement on
the terms and
conditions set forth herein.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
hereby
represents and warrants to the Seller as follows:
(a) Organization. Buyer is duly organized and validly existing
as a
limited liability company and in good standing under the laws
the State of
Delaware.
(b) Authority. Buyer has all requisite corporate power and
authority to
execute and deliver this Agreement and to carry out its
obligations hereunder.
The execution and delivery of this Agreement and the
consummation of the
transactions contemplated hereby have been duly authorized by
all necessary
corporate action on the part of Buyer and this Agreement has
been duly executed
and delivered by Buyer and constitutes the valid and legally
binding obligation
of Buyer, enforceable against it in accordance with its terms,
except as
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium, rehabilitation, or similar laws
affecting the
enforcement of creditors' rights generally.
(c) Brokers' Fees. Buyer has no liability or obligation to pay
any fees or
commissions to any broker, finder, or agent with respect to the
transactions
contemplated by this Agreement for which the Seller or any of
Seller's
affiliates could become liable or obligated. Buyer will
indemnify Seller for any
misrepresentation contained in this Section 4(c).
(d) Noncontravention. Neither the execution and the delivery of
this
Agreement, nor the consummation of the transactions contemplated
thereby, will
(i) violate any statute, regulation, rule, injunction, judgment,
order, decree,
ruling, charge, or other restriction of any government,
governmental agency, or
court to which Buyer is subject or any provision of the charter
or bylaws of
Buyer or (ii) conflict with, result in a breach of, constitute a
default under,
result in the acceleration of, create in any party the right to
accelerate,
terminate, modify, or cancel, or require any notice under any
material
agreement, contract, lease, license or instrument to which Buyer
or any of its
material properties or assets are subject (or result in the
imposition of any
Security Interest upon any of its assets), except where the
violation, conflict,
breach,
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default, acceleration, termination, modification, cancellation,
failure to give
notice or creation of a Security Interest would not materially
impair the
ability of the Parties to consummate the transactions
contemplated by this
Agreement.
(e) Notices, Consents and Approvals. Other than as is set forth
in
SCHEDULE 4(e) hereto, the execution and delivery by the Buyer of
this Agreement,
the performance by the Buyer of its obligations hereunder, and
the consummation
by the Buyer of the transactions contemplated hereby do not
require the Buyer to
obtain any consent, approval or action of, or make any filing
with or give any
notice to, any person or any governmental or regulatory body, or
other third
party.
(f) Financing. The Buyer has, and will have at Closing,
available cash or
existing borrowing facilities that together are sufficient to
enable it to
consummate the transaction contemplated by this Agreement.
(g) Due Diligence. Buyer has completed its legal, business, and
financial
due diligence with the results being to the satisfaction of
Buyer in its sole
discretion.
SECTION 5. SELLER COVENANTS. The Seller covenants and agrees as
follows:
(a) General. The Seller will use Seller's best efforts to take
all actions
and to do all things necessary, proper, or advisable in order to
consummate and
make effective the transactions contemplated by this
Agreement.
(b) Notices and Consents. Seller will give any notices to third
parties,
and Seller will use Seller's best efforts to obtain any third
party consents,
that Buyer may reasonably request in connection with the matters
referred to in
SECTIONS 3(f) AND 4(e) above. Seller will give any notices to,
make any filings
with, and use its best efforts to obtain any necessary
authorizations, consents,
and approvals of governments and governmental agencies in
connection with the
matters referred to herein. In addition, Seller shall assist
Buyer in providing
notice of the transaction, in a form satisfactory to both
parties, at Closing to
the agents who write Seller's Michigan non-standard automobile
policies. Such
notice shall allow for the agent to notify the Buyer that Buyer
should not send
any policy application to agent's clients (the "Opt Out").
(c) Preservation of Acquired Assets. Prior to the Closing,
Seller will use
Seller's best efforts to keep the Acquired Assets substantially
without material
negative change, including present physical facilities, working
conditions, and
relationships with lessors, licensors, suppliers, customers and
employees.
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(d) Full Access. Seller will permit representatives of Buyer to
have
reasonable access during normal business hours to all premises,
properties,
personnel, books, records (including tax records), contracts,
and documents
pertaining to the Acquired Assets.
(e) Notice of Developments. Seller shall give prompt written
notice to the
Buyer of any development causing a breach of any of its own
representations and
warranties. No disclosure by the Parties pursuant to this
Section 5(e), however,
shall be deemed to amend or supplement the Schedules or Exhibits
or to prevent
or cure any misrepresentation, breach of warranty, or breach of
covenant. Seller
shall give prompt written notice to Buyer upon learning of any
Basis which is a
breach of Buyer's representations; provided however, Seller
agrees that this
Section 5(e) shall in no way limit or waive the remedies
available to Buyer
under this Agreement.
(f) Maintenance of Records. Seller will maintain and continue to
keep the
books, accounts and records associated with the Acquired Assets
in the usual
manner and consistent with prior practice.
(g) Other Consents. Seller will use Seller's best efforts to
assist Buyer
in obtaining any approvals that may be necessary in connection
with the sale of
the Acquired Assets.
(h) Continued Effectiveness of Representations and Warranties.
From the
date hereof, through the Closing Date, Seller shall use Seller's
best efforts so
that the representations and warranties contained in this
Agreement hereof shall
continue to be true and accurate on and as of the Closing
Date.
(i) Non-Compete. Seller shall not directly or indirectly compete
with
Buyer's use of the Acquired Assets for a period of three (3)
years following the
Closing Date in the geographic locations as further set forth in
EXHIBIT B
hereto.
SECTION 6. BUYER COVENANTS. The Buyer covenants and agrees:
(a) General. The Buyer will use its best efforts to take all
actions and
to do all things necessary, proper, or advisable in order to
consummate and make
effective the transactions contemplated by this Agreement.
(b) Notice of Developments. The Buyer will give prompt written
notice to
Seller of any development causing a breach of any of its own
representations and
warranties in Section 4 above. No disclosure by the Parties
pursuant to this
Section 6(b) however shall be deemed to prevent or cure any
misrepresentation,
breach of warranty, or breach of covenant. Buyer shall give
prompt notice to
Seller upon learning of any Basis that causes a breach of any of
Seller's
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representations; provided however, the Buyer agrees that this
Section 6(b) shall
in no way limit or waive the remedies available to Seller under
this Agreement.
(c) Other Consents. Buyer will use Buyer's best efforts to
assist Seller
in obtaining any approvals that may be necessary in connection
with the sale of
the Acquired Assets.
(d) Continued Effectiveness of Representations and Warranties.
From the
date hereof, through the Closing Date, Buyer shall use Buyer's
best efforts so
that the representations and warranties contained in this
Agreement hereof shall
continue to be true and accurate on and as of the Closing
Date.
SECTION 7. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations
of Seller
to consummate this transaction are subject to and conditioned
upon the
satisfaction, at or prior to the Closing Date, of each of the
following
conditions precedent, any of which may be waived by the Seller
at or prior
to the Closing Date:
(a) Accuracy of Representations and Warranties. The
representations and
warranties made by Buyer herein shall be true and correct in all
material
respects on the Closing Date and shall be confirmed in writing
at the Closing by
Buyer.
(b) Performance by Buyer. All of the terms and conditions of
this
Agreement to be complied with and performed by Buyer on or
before the Closing
Date shall have been complied with and performed in all material
respects,
including, without limitation, the delivery of each of the items
to be delivered
under Section 11 hereof.
(c) Legal Challenge. No suit, action or other proceeding brought
by any
federal or state government or agency shall be pending, and no
claim by any such
authority shall have been asserted, before any court or
governmental agency in
which it is or will be sought to restrain or prohibit the
consummation of the
transactions contemplated hereby.
(d) Consents and Approvals. Seller shall have obtained all
necessary
consents and approvals.
(e) Non-Performance. If any of the conditions contained in this
Section 7
shall not be fulfilled or performed at or before the Closing
Date to the
reasonable satisfaction of Seller, Seller may, by written notice
to Buyer,
terminate all its obligations hereunder (except as otherwise
provided herein)
and where the non-performance or non-fulfillment of a condition
is as a result
of a breach of any covenant, representation or warranty on the
part of Buyer
herein contained, may bring an action against Buyer for damages
suffered by
Seller pursuant to Section 13 below,
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provided that any of the said condition may be waived in whole
or in part by
Seller without prejudice to any claims it may have for breach of
a covenant,
representation or warranty.
SECTION 8. CONDITIONS PRECEDENT TO CLOSING. The following
conditions
precedent have been satisfied in full:
(a) Seller has provided Buyer with an audited statutory balance
sheet
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