THE OUTSTANDING
AMOUNT OF THE BANK FACILITY ON THE CLOSING DATE STATING THAT, UPON PAYMENT OF
THE AMOUNTS SPECIFIED THEREIN IN ACCORDANCE WITH THE INSTRUCTIONS SPECIFIED
THEREIN, ALL ENCUMBRANCES SECURING THE AMOUNTS PAYABLE THEREUNDER SHALL BE
RELEASED;
(VIII)
[INTENTIONALLY OMITTED];
(IX)
[INTENTIONALLY OMITTED];
(X)
EXECUTED COUNTERPARTS OF AN AMENDMENT TO
THE BROCK EMPLOYMENT AGREEMENT OF THE TYPE DESCRIBED IN SECTION 6.12, SIGNED BY
CASEY BROCK;
(XI)
EXECUTED COUNTERPARTS OF THE ABRY
INDEMNIFICATION LETTER; AND
(XII)
THE ESTIMATED CLOSING CERTIFICATE.
(D)
REQUIRED CONSENTS.
EACH OF THE LANDLORD APPROVALS SHALL HAVE BEEN
OBTAINED IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO PURCHASER AND SHALL BE
IN FULL FORCE AND EFFECT.
(E)
ESCROW AGREEMENT.
THE ESCROW AGENT AND PARENT SHALL HAVE EACH
EXECUTED AND DELIVERED SIGNATURES TO THE ESCROW AGREEMENT TO PURCHASER.
(F)
NO MATERIAL ADVERSE EFFECT.
SINCE THE DATE OF THIS AGREEMENT,
THERE SHALL HAVE NOT BEEN A CHANGE, EVENT OR CONDITION THAT HAS HAD OR WOULD
REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL ADVERSE EFFECT.
(G)
BANK FACILITY.
CONCURRENTLY WITH THE CLOSING, THE BANK FACILITY
SHALL BE SATISFIED IN FULL AS DESCRIBED IN SECTION 1.3(C) AND ANY AND ALL
ENCUMBRANCES RELATED THERETO RELEASED IN THEIR ENTIRETY.
If the Closing occurs, all closing conditions set forth in this Section 7.2 that
have not been fully satisfied as of the Closing shall be deemed to have been
fully waived by Purchaser; provided that such waiver will not affect any right
to indemnification pursuant to Article VIII in respect of any inaccuracy in any
certification made pursuant to Section 7.2(c)(i).
39
SECTION 7.3.
ADDITIONAL CONDITIONS TO
OBLIGATIONS OF SELLERS.
The obligations of the Sellers to effect the Transactions and the other
transactions contemplated in this Agreement are also subject to the following
conditions any or all of which may be waived, in whole or in part, by Sellers to
the extent permitted by applicable Law:
(A)
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
TAKEN TOGETHER, THE
REPRESENTATIONS AND WARRANTIES OF PURCHASER IN ARTICLE IV (DISREGARDING, FOR
PURPOSES OF THIS SECTION 7.3(A), ALL MATERIALITY QUALIFICATIONS THEREIN) SHALL
BE TRUE AND CORRECT AS OF THE CLOSING (OR, IF MADE AS OF A SPECIFIED DATE, THEN
AS OF SUCH SPECIFIED DATE), IN EACH CASE EXCEPT IN SUCH RESPECTS AS, TAKEN AS A
WHOLE, HAVE NOT HAD AND WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT ON PURCHASER'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT OR ANY RELATED AGREEMENT TO WHICH IT IS OR WILL BECOME A PARTY.
(B)
AGREEMENTS AND COVENANTS OF PURCHASER.
THE AGREEMENTS AND COVENANTS
OF PURCHASER REQUIRED TO BE PERFORMED ON OR BEFORE THE CLOSING SHALL HAVE BEEN
PERFORMED IN ALL MATERIAL RESPECTS.
(C)
[INTENTIONALLY OMITTED];
(D)
DELIVERY OF CONSIDERATION.
PURCHASER SHALL HAVE DELIVERED THE
CLOSING CASH PAYMENT, THE OPTION EXERCISE PRICE AND THE ESCROW AMOUNT IN
ACCORDANCE WITH SECTION 1.3(B).
(E)
OTHER DELIVERIES.
PURCHASER SHALL HAVE DELIVERED OR CAUSED TO BE
DELIVERED TO SELLERS EACH OF THE FOLLOWING:
(I)
A CERTIFICATE SIGNED BY PURCHASER DATED
THE CLOSING DATE STATING THAT