WITH THE LENDER APPROVAL, AND (2) TAKE ANY
OTHER ACTIONS REASONABLY REQUESTED BY BUYER TO FACILITATE OBTAINING LENDER
APPROVAL, AND SELLER SHALL HAVE NO OTHER OBLIGATION OR LIABILITY TO BUYER
ARISING OUT OF OR RELATING TO OBTAINING THE LENDER APPROVAL AND THE ROFR WAIVER.
IF BUYER SHALL DETERMINE THAT SELLER IS NOT IN COMPLIANCE WITH THIS
SECTION 9.2(I), BUYER SHALL, AS PROMPTLY AS IS PRACTICABLE AFTER BECOMING AWARE
OF SELLER'S NON-COMPLIANCE, GIVE WRITTEN NOTICE TO SELLER OF THE NATURE AND
MANNER IN WHICH SELLER HAS FAILED TO COMPLY AND PROVIDE SELLER WITH A REASONABLE
PERIOD TO CURE SUCH NON-COMPLIANCE, SUBJECT IN ALL RESPECTS TO SECTION 10.1(C).
THE FAILURE TO MAKE PROMPT DELIVERY OF SUCH WRITTEN NOTICE BY BUYER SHALL
RELIEVE SELLER FROM ANY LIABILITY OR OBLIGATION UNDER THIS AGREEMENT OR ANY OF
THE ANCILLARY DOCUMENTS (INCLUDING SELLER'S OBLIGATION TO CLOSE THE TRANSACTIONS
CONTEMPLATED HEREUNDER) SOLELY WITH RESPECT TO SELLER'S FAILURE TO COMPLY WITH
THE TERMS OF THIS SECTION 9.2(I); PROVIDED, THAT THE FAILURE TO MAKE PROMPT
DELIVERY OF SUCH WRITTEN NOTICE BY BUYER SHALL NOT IMPAIR OR OTHERWISE PREJUDICE
BUYER'S REMEDY TO TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS HEREOF.
37
ARTICLE X
TERMINATION; DEFAULT
10.1.
Termination.
This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
(A)
BY BUYER IN ACCORDANCE WITH 6.3(D)(II); OR
(B)
BY WRITTEN NOTICE FROM EITHER SELLER OR BUYER IN ACCORDANCE WITH
SECTION 5.8(A)(II) OR 5.9(A)(II); OR
(C)
BY WRITTEN NOTICE FROM EITHER SELLER OR BUYER TO THE OTHER PARTY,
AT ANY TIME (I) PRIOR TO THE OUTSIDE DATE IF EITHER (A) RGI EXERCISES ITS RIGHT
OF FIRST REFUSAL BY DELIVERING THE ACCEPTANCE ON THE TERMS AND CONDITIONS SET
FORTH IN THE SHAREHOLDERS' AGREEMENT OR (B) SENIOR LENDER DELIVERS A LENDER
REJECTION TO SELLER OR THE COMPANY OR (II) AFTER THE OUTSIDE DATE IF EITHER
LENDER APPROVAL OR THE ROFR WAIVER HAVE NOT BEEN OBTAINED, OR HAVE BEEN OBTAINED
BUT ARE SUBSEQUENTLY TERMINATED, CANCELED OR OF NO FURTHER FORCE AND EFFECT.
10.2.
Procedure and Effect of Termination.
In the event of the
termination of this Agreement and the abandonment of the Contemplated
Transactions, written notice thereof shall be given by a terminating party to
the other parties, and this Agreement shall terminate and the Contemplated
Transactions shall be abandoned without further action by any of the parties.
If this Agreement is terminated pursuant to Section 10.1:
(A)
BUYER SHALL PROMPTLY CAUSE TO BE RETURNED TO THE COMPANY OR
DESTROY ALL DOCUMENTS AND INFORMATION OBTAINED IN CONNECTION WITH THIS AGREEMENT
AND THE CONTEMPLATED TRANSACTIONS AND ALL DOCUMENTS AND INFORMATION OBTAINED IN
CONNECTION WITH BUYER'S INVESTIGATION OF THE COMPANY FROM THE COMPANY OR ITS
REPRESENTATIVES, INCLUDING ANY COPIES MADE BY OR SUPPLIED TO BUYER OR ANY OF
BUYER'S AGENTS OF ANY SUCH DOCUMENTS OR INFORMATION, PROVIDED, BUYER MAY RETAIN
ONE COPY OF ALL SUCH DOCUMENTS AND INFORMATION IN ORDER TO COMPLY WITH INTERNAL
DOCUMENT RETENTION AND CORPORATE GOVERNANCE POLICIES AND SHALL NOT BE OBLIGATED
TO PURGE ANY INFORMATION STORED IN AN ELECTRONIC BACK-UP