OBTAIN THE DEBT FINANCING
AND TO NOT PERMIT ANY AMENDMENT OR MODIFICATION TO THE COMMITMENT LETTER THAT
WOULD REASONABLY BE EXPECTED TO MATERIALLY HINDER OR DELAY THE RECEIPT OF THE
DEBT FINANCING UPON THE TERMS SET FORTH IN THE COMMITMENT LETTER AS OF THE DATE
HEREOF WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY (NOT TO BE UNREASONABLY
WITHHELD OR DELAYED).
(B)
SELLER WILL CAUSE THE COMPANY, ITS
SUBSIDIARIES AND THE RESPECTIVE OFFICERS, EMPLOYEES, ACCOUNTANTS, ATTORNEYS AND
ADVISERS OF THE COMPANY AND ITS SUBSIDIARIES, IN EACH CASE, TO PROVIDE
REASONABLE AND CUSTOMARY COOPERATION IN CONNECTION WITH THE ARRANGEMENT OF THE
DEBT FINANCING AND ANY OTHER FINANCING TO BE CONSUMMATED CONTEMPORANEOUSLY WITH
THE CLOSING IN RESPECT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
INCLUDING (I) PARTICIPATION IN MEETINGS, DUE DILIGENCE SESSIONS AND ROAD SHOWS,
(II) THE PREPARATION OF OFFERING MEMORANDA, PRIVATE PLACEMENT MEMORANDA,
PROSPECTUSES AND SIMILAR DOCUMENTS, AND (III) THE EXECUTION AND DELIVERY OF ANY
COMMITMENT OR FINANCING LETTERS, UNDERWRITING, PURCHASE OR PLACEMENT AGREEMENTS,
PLEDGE AND SECURITY DOCUMENTS, OTHER DEFINITIVE FINANCING DOCUMENTS, OR OTHER
REQUESTED CERTIFICATES OR DOCUMENTS AS MAY BE REASONABLY REQUESTED BY PURCHASER;
PROVIDED, HOWEVER THAT THE TERMS AND CONDITIONS OF SUCH FINANCING MAY NOT
REQUIRE THE PAYMENT OF ANY COMMITMENT OR OTHER FEES BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES, OR THE INCURRENCE OF ANY LIABILITIES BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES PRIOR TO THE CLOSING.
(C)
IN ORDER TO PROVIDE FINANCIAL STATEMENTS
NECESSARY TO CONSUMMATE THE DEBT FINANCING, SELLER SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO, OR TO CAUSE THE COMPANY TO: (I) PREPARE AND DELIVER TO
PURCHASER FINANCIAL STATEMENTS IN ACCORDANCE WITH GAAP FOR THE NINE MONTH
PERIODS ENDED OCTOBER 31, 2004 AND 2003 (THE "OCTOBER FINANCIAL STATEMENTS"),
(II) CAUSE THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS TO (X) PERFORM THE
PROCEDURES SPECIFIED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS
FOR A REVIEW OF FINANCIAL INFORMATION AS DESCRIBED IN SAS 100, INTERIM FINANCIAL
INFORMATION, WITH RESPECT TO THE OCTOBER FINANCIAL STATEMENTS (OR, IF REQUESTED
BY THE PURCHASER, THE UNAUDITED FINANCIAL STATEMENTS) AND (Y) PREPARE AND
DELIVER TO THE UNDERWRITERS ANY CUSTOMARY COMFORT LETTERS REASONABLY REQUESTED
BY PURCHASER, (III) OBTAIN THE CONSENT OF SELLER'S INDEPENDENT PUBLIC
ACCOUNTANTS, WHEN REQUIRED, WITH RESPECT TO THE AUDITED FINANCIAL STATEMENTS, AT
PURCHASER'S EXPENSE, SO THAT THE AUDITED
38
FINANCIAL STATEMENTS CAN BE USED IN RULE 144A OFFERING MEMORANDA ISSUED BY
PURCHASER OR ONE OF ITS AFFILIATES, AND (IV) COOPERATE WITH PURCHASER SO
PURCHASER CAN OBTAIN INFORMATION SUFFICIENT FOR PURCHASER TO COMPLY WITH THE
REQUIREMENTS FOR THE MANAGEMENT'S DISCUSSION AND ANALYSIS PORTION OF ANY RULE
144A OFFERING MEMORANDA (IN CONFORMITY WITH SEC RULES).
ARTICLE VI
CONDITIONS PRECEDENT TO THE PARTIES' PERFORMANCE
6.1
CONDITIONS TO THE PERFORMANCE OF EACH
PARTY.
THE RESPECTIVE OBLIGATIONS OF EACH PARTY TO THIS AGREEMENT TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE SUBJECT TO THE
SATISFACTION AT OR PRIOR TO THE CLOSING DATE OF THE FOLLOWING CONDITIONS:
(A)
NO ORDER.
NO GOVERNMENTAL ENTITY OF
COMPETENT JURISDICTION SHALL HAVE ENACTED, ISSUED, PROMULGATED, ENFORCED OR
ENTERED