BOUND, OR (III) RESULT IN ANY MATERIAL BREACH OF OR CONSTITUTE A
MATERIAL DEFAULT (OR AN EVENT THAT WITH NOTICE OR LAPSE OF TIME OR BOTH WOULD
BECOME A MATERIAL DEFAULT) UNDER, OR MATERIALLY IMPAIR PURCHASER'S RIGHTS OR
ALTER THE RIGHTS OR OBLIGATIONS OF ANY THIRD PARTY UNDER, OR GIVE TO OTHERS ANY
RIGHTS OF TERMINATION, MATERIAL AMENDMENT, ACCELERATION OR CANCELLATION OF, OR
RESULT IN THE CREATION OF A MATERIAL LIEN ON ANY OF THE PROPERTIES OR ASSETS OF
PURCHASER OR ANY OF ITS SUBSIDIARIES PURSUANT TO, ANY CONTRACT TO WHICH
PURCHASER IS A PARTY THE TERMINATION OR BREACH OF WHICH WOULD BE REASONABLY
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF PURCHASER TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS TO WHICH IT IS A PARTY.
(C)
NECESSARY CONSENTS.
NO CONSENT, APPROVAL,
ORDER OR AUTHORIZATION OF, OR REGISTRATION, DECLARATION OR FILING WITH ANY
GOVERNMENTAL ENTITY IS REQUIRED TO BE OBTAINED OR MADE BY PURCHASER IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS TO WHICH IT IS A PARTY OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, EXCEPT FOR THE NECESSARY CONSENTS.
3.3
AVAILABILITY OF FUNDS.
(A)
PURCHASER HAS RECEIVED A COMMITMENT LETTER
DATED AS OF NOVEMBER 17, 2004 FROM JPMORGAN CHASE BANK, N.A., J.P. MORGAN
SECURITIES INC., BEAR STEARNS CORPORATE LENDING INC. AND BEAR, STEARNS & CO.
INC. PURSUANT TO WHICH SUCH PARTIES HAVE COMMITTED, SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH THEREIN, TO PROVIDE TO THE PURCHASER THE $640,000,000
SENIOR SECURED CREDIT FACILITIES AND $410,000,000 IN A SENIOR SUBORDINATED
BRIDGE FACILITY (THE "COMMITMENT LETTER"), TO COMPLETE THE TRANSACTION
CONTEMPLATED HEREBY (THE "DEBT FINANCING").
A TRUE AND COMPLETE COPY OF THE
COMMITMENT LETTER HAS BEEN MADE AVAILABLE TO SELLER ON OR PRIOR TO THE DATE
HEREOF.
(B)
PURCHASER HAS RECEIVED AN EXECUTED EQUITY
FINANCING LETTER FROM ITS STOCKHOLDERS AS OF THE DATE HEREOF, PURSUANT TO WHICH
THE STOCKHOLDERS HAVE AGREED TO PROVIDE, IN THE AGGREGATE, ON THE TERMS SET
FORTH THEREIN, FOUR HUNDRED FORTY MILLION DOLLARS ($440,000,000) OF EQUITY
FINANCING TO PURCHASER.
A TRUE AND COMPLETE COPY OF SUCH LETTER HAS BEEN MADE
AVAILABLE TO SELLER ON OR PRIOR TO THE DATE HEREOF.
(C)
UPON SATISFACTION OF THE CONDITIONS SET
FORTH IN THE COMMITMENT LETTER, AT THE CLOSING DATE, THE PURCHASER WILL HAVE
SUFFICIENT FUNDS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
TO THE
KNOWLEDGE OF PURCHASER, NO EVENT OR CIRCUMSTANCES HAS OCCURRED OR EXISTS THAT
WOULD BE REASONABLY LIKELY TO CAUSE A CONDITION UNDER THE COMMITMENT LETTER TO
NOT BE SATISFIED PRIOR TO CLOSING.
23
3.4
LITIGATION.
As of the close of business on the date hereof, there are no claims, suits,
actions or proceedings pending or, to the knowledge of Purchaser, threatened
against Purchaser or any of its subsidiaries, before any court, governmental
department, commission, agency, instrumentality or authority, or any arbitrator
that seeks to restrain or enjoin the consummation of the transactions
contemplated hereby.
3.5
BROKERS AND FINDERS.
The Purchaser