and agreements
required by this Agreement to be performed or complied with by it at or prior to
the Closing Date.
8.2.
Representation and Warranties.
The representations and warranties
of Seller contained in this Agreement shall be true and correct in all material
respects on the Closing Date as if made on such date, except for any changes
permitted by the terms of this Agreement.
8.3.
Actions of Seller at Closing.
At the Closing and unless otherwise
waived by Buyer, Seller shall have delivered to Buyer those deliveries set forth
in Section 2.2.
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8.4.
FINANCING.
BUYER SHALL HAVE OBTAINED THE FINANCING NECESSARY TO
CONSUMMATE THE TRANSACTION.
8.5.
NO MATERIAL ADVERSE EFFECT.
FROM AND AFTER THE AGREEMENT DATE,
THERE SHALL NOT HAVE BEEN ANY EVENT OR CHANGE IN THE SELLER OR FOX WHICH HAS HAD
A MATERIAL ADVERSE EFFECT.
8.6.
FINANCIAL STATEMENTS.
EXCEPTING ONLY NORMAL RECURRING CHANGES
RELATED TO THE USUAL OPERATIONS OF ST. HELENA, FOX SHALL NOT SUFFERED OR
INCURRED A MATERIAL CHANGE IN ITS FINANCIAL STATEMENTS BETWEEN DECEMBER 31, 2006
AND THE CLOSING DATE.
Article 9.
CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE
The obligation of Seller to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, prior to or on the Closing Date, of
each of the following conditions precedent, any one or more of which may be
waived by Seller in writing:
9.1.
COMPLIANCE WITH COVENANTS.
BUYER SHALL HAVE PERFORMED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, OBLIGATIONS AND AGREEMENTS
REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT AT OR PRIOR TO
THE CLOSING DATE.
9.2.
REPRESENTATION AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES
OF BUYER CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON THE CLOSING DATE AS IF MADE ON SUCH DATE, EXCEPT FOR ANY CHANGES
EXPRESSLY PERMITTED BY THE TERMS OF THIS AGREEMENT.
9.3.
ACTIONS OF BUYER AT CLOSING.
AT THE CLOSING AND UNLESS OTHERWISE
WAIVED BY SELLER, BUYER SHALL HAVE DELIVERED TO SELLER THOSE DELIVERIES SET
FORTH IN SECTION 2.3.
Article 10.
TERMINATION OF AGREEMENT
10.1.
TERMINATION OF AGREEMENT.
THIS AGREEMENT MAY BE TERMINATED AT ANY
TIME PRIOR TO THE CLOSING DATE ONLY AS FOLLOWS:
10.1.1.
BY MUTUAL AGREEMENT.
IF SELLER AND BUYER BOTH AGREE TO
TERMINATE THE AGREEMENT.
10.1.2.
BY BUYER.
BUYER MAY TERMINATE THIS AGREEMENT AT ANYTIME
PRIOR TO THE CLOSING FOR ANY REASON OR NO REASON IN THE SOLE DISCRETION OF THE
BUYER.
10.1.3.
BY SELLER.
SELLER MAY TERMINATE THIS AGREEMENT BY GIVING
WRITTEN NOTICE TO BUYER IF BUYER HAS MATERIALLY BREACHED ANY OF ITS COVENANTS
CONTAINED IN THIS AGREEMENT OR IF THERE IS ANY INACCURACY IN ANY OF THE
REPRESENTATIONS OR WARRANTIES MADE BY BUYER, IF SELLER HAS PREVIOUSLY NOTIFIED
BUYER IN WRITING OF SUCH BREACH
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OR INACCURACY AND THE BREACH OR INACCURACY HAS CONTINUED WITHOUT CURE FOR A
PERIOD OF FIVE (5) DAYS AFTER SUCH NOTICE.
10.2.
EFFECT OF TERMINATION.
IN THE EVENT OF A TERMINATION (PRIOR TO THE