WHOM THE BUYER SHALL HAVE SPECIFIED IN WRITING AT LEAST
THREE BUSINESS DAYS PRIOR TO THE CLOSING; AND
(O)
TRACE SHALL HAVE DELIVERED TO BUYER
CONSOLIDATED FINANCIAL STATEMENTS OF THE CORPORATIONS FOR THE FISCAL YEAR ENDED
DECEMBER 31, 2002, 2003, AND 2004, TOGETHER WITH THE CONSENT (WHICH CONSENT
SHALL BE IN FORM ACCEPTABLE TO BUYER, ACTING REASONABLY) OF THE CORPORATIONS'
INDEPENDENT AUDITORS TO THE INCLUSION OF SUCH FINANCIAL STATEMENTS AND THE
RELATED REPORTS THEREON (I) IN THE BUYER'S REQUIRED FILINGS WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
AFTER THE CLOSING DATE OR (II) IN ANY REGISTRATION STATEMENT OR OTHER OFFERING
DOCUMENT REQUIRED TO BE PREPARED BY THE BUYER IN ORDER TO REGISTER ITS
SECURITIES, OR PERFECT AN EXEMPTION FROM APPLICABLE REGISTRATION REQUIREMENTS,
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS.
The Buyer may waive any condition specified in this Section 7.1 if it executes a
notice in writing so stating at or prior to the Closing.
If any of the
conditions specified in this Section 7.1 are not complied with (provided such
non-compliance did not arise from the acts or omissions of the Buyer) or waived
by the Buyer on or before the Closing Date (other than Section 7.1(g), for which
the Buyer must provide the Sellers with notice of non-satisfaction on or before
the date that is 30 days from the date of this Agreement and if no such notice
is received by such date it shall be deemed to have been satisfied) the Buyer
may terminate this Agreement by written notice to the Sellers.
SECTION 7.2
CONDITIONS TO OBLIGATION OF THE
SELLERS.
The obligation of the Sellers to consummate the transactions to be performed by
them in connection with the Closing is subject to satisfaction of the following
conditions:
(A)
ALL OF THE REPRESENTATIONS AND WARRANTIES OF
THE BUYER MADE IN THIS AGREEMENT (AND AS MODIFIED PURSUANT TO SECTION 5.4) SHALL
BE TRUE AND CORRECT IN ALL RESPECTS AS OF THE CLOSING AND WITH THE SAME EFFECT
AS IF MADE AT AND AS OF THE CLOSING DATE, EXCEPT TO THE EXTENT THAT ANY BREACH
OF SUCH REPRESENTATIONS AND WARRANTIES ARISES FROM THE ACTIONS OF THE BUYER
WHICH ARE REQUIRED BY THIS AGREEMENT OR ARE CONSENTED TO BY SCF;
(B)
THE BUYER SHALL HAVE COMPLIED WITH AND
PERFORMED ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT ON ITS PART TO BE
PERFORMED OR COMPLIED WITH AT OR BEFORE CLOSING, EXCEPT TO THE EXTENT THAT ANY
BREACH OF SUCH OBLIGATIONS IS CONSENTED TO BY SCF;
(C)
SINCE THE DATE OF THIS AGREEMENT, THE
BUYER'S BUSINESS HAS BEEN CONDUCTED IN THE ORDINARY COURSE OF BUSINESS AND IN
THE ABSENCE OF ANY MATERIAL CASUALTY OF MATERIAL ADVERSE CHANGE IN THE CONDUCT
OF SUCH BUSINESS;
53
(D)
THE BUYER SHALL HAVE ENTERED INTO THE ESCROW
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT;
(E)
THE SELLER CONSENTS AND APPROVALS AND THE
BUYER CONSENTS AND APPROVALS SHALL HAVE BEEN OBTAINED WITH