the Closing Date of
all of the following conditions:
9.1.
REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT.
ALL OF THE
REPRESENTATIONS AND WARRANTIES OF BUYER CONTAINED IN THIS AGREEMENT, IN ANY
ANCILLARY AGREEMENT OR IN ANY WRITTEN CERTIFICATE DELIVERED PURSUANT TO THIS
AGREEMENT SHALL BE TRUE AND CORRECT ON THE DATE OF THIS AGREEMENT, SUCH
ANCILLARY AGREEMENT OR SUCH CERTIFICATE, AS THE CASE MAY BE, AND SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE AS IF MADE ON
AND AS OF THE CLOSING DATE (EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT
EXPRESSLY RELATE TO A DATE EARLIER THAN THE CLOSING DATE WHICH SHALL CONTINUE TO
BE TRUE AND CORRECT AS OF THE SPECIFIED DATE AND EXCEPT FOR REPRESENTATIONS AND
WARRANTIES THAT CONTAIN MATERIAL ADVERSE EFFECT OR OTHER MATERIALITY
QUALIFICATIONS, WHICH SHALL BE TRUE AND CORRECT IN ALL RESPECTS).
9.2.
COVENANTS AND AGREEMENTS PERFORMED.
BUYER SHALL HAVE PERFORMED OR
COMPLIED WITH IN ALL MATERIAL RESPECTS, OR DELIVERED, ALL COVENANTS, AGREEMENTS,
CONDITIONS OR DOCUMENTS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, COMPLIED
WITH, OR DELIVERED BY BUYER PRIOR TO OR ON THE CLOSING DATE.
9.3.
BUYER CLOSING CERTIFICATE.
THE STOCKHOLDERS' REPRESENTATIVE SHALL
HAVE BEEN FURNISHED WITH A CERTIFICATE EXECUTED BY AN OFFICER OF BUYER (THE
"BUYER CLOSING CERTIFICATE"), DATED THE CLOSING DATE, CERTIFYING THAT THE
CONDITIONS SET FORTH IN SECTIONS 9.1 AND 9.2 HAVE BEEN FULFILLED (OR WAIVED) AT
OR PRIOR TO THE CLOSING DATE.
9.4.
NO PROHIBITION OR PROCEEDINGS.
NO STATUTE, RULE OR REGULATION, OR
ORDER OF ANY COURT OR ADMINISTRATIVE AGENCY SHALL BE IN EFFECT, AND NO ACTION OR
PROCEEDING SHALL BE PENDING OR
27
threatened, that prohibits the Stockholders from consummating the transactions
contemplated hereby.
9.5.
GOVERNMENTAL CONSENTS AND OTHER APPROVALS.
THE WAITING PERIOD
UNDER THE HSR ACT SHALL HAVE EXPIRED OR BEEN TERMINATED AND ALL CONSENTS,
APPROVALS, AUTHORIZATIONS, EXEMPTIONS, AND WAIVERS FROM GOVERNMENTAL AGENCIES
THAT SHALL BE REQUIRED IN ORDER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY, IF ANY, SHALL HAVE BEEN OBTAINED.
THESENIOR LENDER APPROVALS SHALL HAVE
BEEN OBTAINED.
9.6.
RATIFICATION BY THE FUND.
THE FUND SHALL RATIFY THE UNANIMOUS
WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF THE COMPANY, DATED THE DATE HEREOF,
IN THE FORM PROVIDED TO THE FUND ON THE DATE HEREOF.
ARTICLE X
TERMINATION PRIOR TO CLOSING
10.1.
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR TO
THE CLOSING:
(A)
BY THE MUTUAL WRITTEN CONSENT OF BUYER AND THE STOCKHOLDERS'
REPRESENTATIVE;
(B)
BY EITHER THE STOCKHOLDERS' REPRESENTATIVE OR BUYER BY WRITTEN
NOTICE GIVEN TO THE OTHER, IF THE CLOSING HAS NOT OCCURRED ON OR BEFORE MAY 15,
2003 (THE "TERMINATION DATE") THROUGH NO FAULT OF (I) BUYER, IN THE CASE OF
NOTICE FROM BUYER, OR (II) THE STOCKHOLDERS OR THE COMPANY, IN THE CASE OF
NOTICE FROM THE STOCKHOLDERS' REPRESENTATIVE; PROVIDED, HOWEVER, THAT EITHER THE
BUYER OR THE STOCKHOLDERS' REPRESENTATIVE MAY, BY WRITTEN NOTICE TO THE OTHER,
EXTEND THE TERMINATION DATE TO JUNE 15, 2003 IF THE SOLE REASON THAT THE CLOSING
SHALL NOT HAVE