DATE AND SIGNED
BY AN EXECUTIVE OFFICER OF EACH OF THE COMPANY AND OPERATING, TO THE EFFECT THAT
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND OPERATING CONTAINED IN
THIS AGREEMENT THAT ARE QUALIFIED BY A MATERIALITY THRESHOLD OR BY REFERENCE TO
A MATERIAL ADVERSE EFFECT ARE TRUE AND CORRECT IN ALL RESPECTS, AND THAT ARE NOT
QUALIFIED BY A MATERIALITY THRESHOLD OR BY REFERENCE TO A MATERIAL ADVERSE
EFFECT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, IN EACH CASE, ON THE
CLOSING DATE (UNLESS ANY SUCH REPRESENTATIONS AND WARRANTIES ARE STATED TO BE
MADE AS OF A SPECIFIC DATE, IN WHICH CASE THEY SHALL BE TRUE AND CORRECT IN ALL
RESPECTS OR IN ALL MATERIAL RESPECTS, AS APPLICABLE, AS OF SUCH DATE), AFTER
GIVING EFFECT TO THE ISSUE AND SALE OF THE NOTE AND THE PRIMARY SHARES AND THE
APPLICATION OF THE PROCEEDS THEREFROM AS CONTEMPLATED HEREBY, AND THAT EACH OF
THE COMPANY AND OPERATING HAVE COMPLIED WITH ALL OF THE AGREEMENTS AND SATISFIED
ALL OF THE CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED HEREUNDER ON OR
BEFORE THE CLOSING DATE.
(B)
THE PURCHASER SHALL HAVE RECEIVED ON THE
CLOSING DATE AN OPINION OF WEIL GOTSHAL & MANGES LLP, OUTSIDE COUNSEL FOR THE
COMPANY, DATED THE CLOSING DATE, TO THE EFFECT SET FORTH IN EXHIBIT F AND AN
OPINION OF THE SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY OF THE
COMPANY TO THE EFFECT SET FORTH IN EXHIBIT G. SUCH OPINIONS SHALL BE RENDERED TO
THE PURCHASER AT THE REQUEST OF THE COMPANY AND SHALL SO STATE THEREIN.
(C)
THERE SHALL NOT BE IN EFFECT ANY JUDGMENT,
ORDER OR DECREE OF A GOVERNMENTAL BODY OF COMPETENT JURISDICTION RESTRAINING,
ENJOINING OR OTHERWISE PROHIBITING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(D)
ALL NECESSARY OR REQUIRED CONSENTS, ORDERS,
APPROVALS OR AUTHORIZATIONS OF, NOTIFICATIONS OR SUBMISSIONS TO, FILINGS WITH,
LICENSES OR PERMITS FROM, OR EXEMPTIONS OR WAIVERS BY, ANY GOVERNMENTAL ENTITY,
STOCK EXCHANGE OR OTHER PERSON SHALL HAVE BEEN MADE OR OBTAINED, EXCEPT WHERE
THE FAILURE BY A PARTY TO MAKE OR OBTAIN ANY OF THE FOREGOING WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT.
(E)
THE PRIMARY SHARES AND THE UNDERLYING
SHARES SHALL HAVE BEEN APPROVED FOR LISTING ON THE AMERICAN STOCK EXCHANGE.
(F)
THE AMENDED AND RESTATED STOCKHOLDER
PROTECTION RIGHTS AGREEMENT DATED AS OF NOVEMBER 1, 2001 (THE "RIGHTS
AGREEMENT") SHALL BE AMENDED TO PROVIDE THAT THE PURCHASER IS NOT AN "ACQUIRING
PERSON" SOLELY AS A RESULT OF THE TRANSACTIONS PROVIDED FOR IN THE TRANSACTION
DOCUMENTS; PROVIDED,
10
HOWEVER, THAT THE PURCHASER SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 18
HEREOF.
5.
CONDITIONS TO THE COMPANY'S
OBLIGATIONS. THE OBLIGATIONS OF THE COMPANY AND OPERATING TO ISSUE THE NOTE AND
THE COMPANY TO ISSUE THE PRIMARY SHARES ON THE CLOSING DATE ARE SUBJECT TO THE
SATISFACTION OR WAIVER OF THE FOLLOWING CONDITIONS:
(A)
THE COMPANY AND OPERATING SHALL HAVE
RECEIVED THE FOLLOWING ON THE CLOSING DATE:
(I)
THE REGISTRATION RIGHTS AGREEMENT DULY
EXECUTED BY THE PURCHASER.
(II)
THE