Common use of Performance of Obligations; Representations and Warranties Clause in Contracts

Performance of Obligations; Representations and Warranties. The Company shall have performed in all material respects and complied in all material respects with all agreements and conditions contained in this Agreement that are required to be performed or complied with by it prior to or at the Closing. The Company’s representations and warranties contained in Sections 2.3(a) and (c) of this Agreement shall be true and correct in all material respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena shall have received a certificate dated the Closing Date and signed by the Chief Executive Officer, President or a Vice-President of the Company, certifying that, the conditions specified in this Section 5.2(a) have been satisfied.

Performance of Obligations; Representations and Warranties. The Company shall have performed in all material respects each of its agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and complied in all material respects with all agreements and conditions warranties of the Company contained in this Agreement that are required to is qualified by materiality shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained in Sections 2.3(awhich address matters only as of a certain date which shall be true and correct as of such certain date) and (c) each of this Agreement the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), in each case except as contemplated or permitted by this Agreement, and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena Parent shall have received a certificate dated signed on behalf of the Closing Date and signed Company by the its Chief Executive OfficerOfficer and its Chief Financial Officer to such effect; provided, President that, for purposes of determining whether the condition set forth in this Section 6.3(a) has been satisfied, no representation, warranty, covenant or agreement of the Company shall be deemed untrue, incorrect, not complied with or not performed as a Vice-President consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of the Company, certifying thathas had or would have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations or warranties); provided, further, however that the conditions specified foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of the Company or any of the executive officers of the Company set forth in this Section 5.2(a2.8 or (y) have been satisfied.actions set forth in subsections (i), (ii), (iii), (viii) and (ix) of Section 4.1(b). (b)

Performance of Obligations; Representations and Warranties. The ---------------------------------------------------------- Company shall have performed in all material respects each of its covenants and complied agreements contained in all material respects with all agreements this Agreement required to be performed on or prior to the Effective Time, each of the representations and conditions warranties of the Company contained in this Agreement that are required to is qualified by materiality shall have been true and correct when made, and shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained which address matters only as of a certain date which shall be true and correct as of such certain date), each of the representations and warranties that is not so qualified shall have been true and correct in Sections 2.3(a) all material respects when made, and (c) of this Agreement shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), in each case except as contemplated or permitted by this Agreement, provided, however, that for the purpose of this Section 6.3(a) and each of Section 7.1(c), in the case of the Company’s representations and warranties made in each other Section of Article II 3.7 hereof relating to the period between the date of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the ClosingEffective Time, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall only be deemed to not be true and correct in all respects if the aggregate effect of the matters as of such earlier date, and except where the failure of such representations and warranties to be which they are not true and correct in all respects would not have or would not be reasonably likely to result in constitute a Company Post Signing Material Adverse Effect, provided that any such representation and warranty that is itself qualified Change as to materiality shall not be deemed so qualified for purposes of this conditiondefined in Section 6.3(e) hereof. Ciena Parent shall have received a certificate dated signed on behalf of the Closing Date and signed Company by the its Chief Executive Officer, President or a Vice-President of the Company, certifying that, the conditions specified in this Section 5.2(a) have been satisfiedOfficer and its Chief Financial Officer to such effect.

Performance of Obligations; Representations and Warranties. (i) The Company shall have performed in all material respects each of its covenants and complied agreements contained in all material respects with all agreements this Agreement required to be performed on or prior to the Effective Time, (ii) each of the representations and conditions warranties of the Company contained in this Agreement that are required to is qualified by materiality shall have been true and correct when made, and shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained in Sections 2.3(awhich address matters only as of a certain date which shall be true and correct as of such certain date) and (ciii) each of this Agreement the representations and warranties that is not so qualified shall have been true and correct in all material respects when made, and shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), and in each of case except as contemplated or permitted by this Agreement; provided that, except for the Company’s representations and warranties in each other Section of Article II Sections 3.1, 3.2, 3.3, 3.4, 3.7, 3.18 or 3.19 which shall not be subject to this proviso, clauses (ii) and (iii) of this Agreement Section 6.3(a) shall be true and correct in all respects deemed to be fulfilled so long as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure failures of such representations and warranties referred to therein to be so true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that (considered without any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified qualifier set forth therein for the purposes of this conditionsection), would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Ciena Parent shall have received a certificate dated signed on behalf of the Closing Date and signed Company by the its Chief Executive Officer, President Officer or a Vice-President of the Company, certifying that, the conditions specified in this Section 5.2(a) have been satisfiedits Chief Financial Officer to such effect.

Performance of Obligations; Representations and Warranties. The Company Each of Parent and Sub shall have performed in all material respects each of its covenants and complied agreements contained in all material respects with all agreements this Agreement required to be performed on or prior to the Effective Time, each of the representations and conditions warranties of Parent and Sub contained in this Agreement that are required to is qualified by materiality shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained in Sections 2.3(awhich address matters only as of a certain date which shall be true and correct as of such certain date) and (c) each of this Agreement the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), in each case, except as contemplated or permitted by this Agreement, and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena shall have received a certificate dated the Closing Date signed on behalf of each of Parent and signed Sub by the its Chief Executive OfficerOfficer and its Chief Financial Officer to such effect; provided, President or a Vice-President of the Company, certifying that, for purposes of determining whether the conditions specified condition set forth in this Section 5.2(a6.2(a) have has been satisfied., no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a). (b)

Performance of Obligations; Representations and Warranties. The Company Each of Parent and Sub shall have performed in all material respects each of its covenants and complied agreements contained in all material respects with all agreements this Agreement required to be performed on or prior to the Effective Time, each of the representations and conditions warranties of Parent and Sub contained in this Agreement that are required to is qualified by materiality shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained in Sections 2.3(awhich address matters only as of a certain date which shall be true and correct as of such certain date) and (c) each of this Agreement the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), in each case, except as contemplated or permitted by this Agreement, and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena shall have received a certificate dated the Closing Date signed on behalf of each of Parent and signed Sub by the its Chief Executive OfficerOfficer and its Chief Financial Officer to such effect; provided, President or a Vice-President of the Company, certifying that, for purposes of determining whether the conditions specified condition set forth in this Section 5.2(a6.2(a) have has been satisfied, no representation, warranty, covenant or agreement of Parent and Sub shall be deemed untrue, incorrect, not complied with or not performed as a consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of Parent and Sub has had or would have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations, warranties, covenants and agreements); provided, further, however that the foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of Parent or any of the executive officers of Parent set forth in Section 3.8 or (y) actions set forth in subsections (i), (ii) or (iii) of Section 4.1(a).

Performance of Obligations; Representations and Warranties. The Company shall have performed in all material respects each of its agreements contained in this Agreement required to be performed on or prior to the Effective Time, each of the representations and complied in all material respects with all agreements and conditions warranties of the Company contained in this Agreement that are required to is qualified by materiality shall be performed or complied with by it prior to or at true and correct on and as of the Closing. The Company’s Effective Time as if made on and as of such date (other than representations and warranties contained in Sections 2.3(awhich address matters only as of a certain date which shall be true and correct as of such certain date) and (c) each of this Agreement the representations and warranties that is not so qualified shall be true and correct in all material respects on and as of the Closing with the same effect Effective Time as though such representations and warranties were if made on and as of the Closing, except to the extent that such date (other than representations and warranties expressly relate to an earlier date, in which case such representations and warranties address matters only as of a certain date which shall be true and correct in all material respects as of such earlier certain date), in each case except as contemplated or permitted by this Agreement, and each of the Company’s representations and warranties in each other Section of Article II of this Agreement shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on and as of the Closing, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date, and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena Parent shall have received a certificate dated signed on behalf of the Closing Date and signed Company by the its Chief Executive OfficerOfficer and its Chief Financial Officer to such effect; provided, President that, for purposes of determining whether the condition set forth in this Section 6.3(a) has been satisfied, no representation, warranty, covenant or agreement of the Company shall be deemed untrue, incorrect, not complied with or not performed as a Vice-President consequence of the existence or absence of any fact, circumstance or event unless such fact, circumstance or event, individually or when taken together with all other facts, circumstances or events inconsistent with the representations, warranties, covenants or agreements of the Company, certifying thathas had or would have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole (disregarding for this purpose any materiality qualification contained in such representations or warranties); provided, further, however that the conditions specified foregoing proviso shall not apply with respect to (x) actions done with the actual prior knowledge of the Board of Directors of the Company or any of the executive officers of the Company set forth in this Section 5.2(a2.8 or (y) have been satisfiedactions set forth in subsections (i), (ii), (iii), (viii) and (ix) of Section 4.1(b).

Performance of Obligations; Representations and Warranties. The ---------------------------------------------------------- Company shall have performed in all material respects and complied in all material respects with all agreements and conditions contained in this Agreement that are required to be performed or complied with by it prior to or at the Closing, except that the Company shall have performed and complied in all respects with any such agreements or conditions which contain a materiality qualification (including a numerical qualification or limitation, such as dollars). The Each of the Company’s 's representations and warranties contained in Sections 2.3(a) and (c) Section 2 of this Agreement shall be true and correct in all material respects as of the date hereof and as of the Closing with the same effect as though such representations and warranties were if made on at and as of the Closing, such time (except to the extent that such representations and warranties expressly relate to made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties shall to be so true and correct in all material respects (without giving effect to any limitation as of such earlier dateto "materiality" or "Material Adverse Effect" set forth therein) does not have, and each of would not reasonably be expected to have a Material Adverse Effect on the Company’s , individually or in the aggregate. Notwithstanding the preceding sentence, the representations and warranties of the Company contained in each other Section of Article II of this Agreement Sections 2.22 and 2.23 shall be true and correct in all respects as of the Closing with the same effect as though such representations and warranties were made on date hereof and as of the Closing, except to Closing and the extent that such representations representation and warranties expressly relate to an earlier date, warranty of the Company contained in which case such representations and warranties Section 2.27 shall be true and correct in all respects as of such earlier datethe date hereof and as of July 31, 2001. Parent and except where the failure of such representations and warranties to be true and correct in all respects would not have or would not be reasonably likely to result in a Company Material Adverse Effect, provided that any such representation and warranty that is itself qualified as to materiality shall not be deemed so qualified for purposes of this condition. Ciena Acquisition shall have received a certificate Certificate dated the Closing Date and signed by the Chief Executive Officer, President or a Vice-President of the Company, certifying that, that the conditions specified in this Section 5.2(a6.2(a) have been satisfied.