in the form attached as Exhibit C.
(e)
Opinion of Counsel for the Initial
Purchaser.
On the Closing Date, the Initial Purchaser shall have received an
opinion letter, reasonably satisfactory to the Initial Purchaser, from Shearman
& Sterling LLP, counsel for the Initial Purchaser dated as of the Closing Date,
with respect to certain matters in form and substance satisfactory to the
Initial Purchaser.
(f)
Officers' Certificate.
On the Closing
Date, each of Holdings and the Company shall deliver to the Initial Purchaser
written certificates, executed by the Chief Executive Officer, President,
Executive Vice President or Senior Vice President of each of Holdings and the
Company, as the case may be, and the Chief Financial Officer or Chief Accounting
Officer of each of Holdings and the Company, as the case may be, dated as of the
Closing Date, to the effect that:
(I)
FOR THE PERIOD FROM AND AFTER THE DATE
OF THIS AGREEMENT AND PRIOR TO THE CLOSING DATE, TO THEIR KNOWLEDGE, AFTER DUE
INQUIRY, THERE HAS NOT OCCURRED ANY MATERIAL ADVERSE CHANGE;
(II)
FOR THE PERIOD FROM THE DATE OF THIS
AGREEMENT AND PRIOR TO THE CLOSING DATE, THERE SHALL NOT HAVE BEEN ANY
DOWNGRADING FROM THE RATINGS OF B3 BY MOODY'S AND B- BY S&P (IN EACH CASE WITH A
"NEGATIVE OUTLOOK" BY SUCH RATING AGENCIES) ON THE SECURITIES, NOR SHALL ANY
NOTICE (OTHER THAN THAT WHICH IS CONTAINED IN S&P'S RATINGS RELEASE DATED
FEBRUARY 5, 2004 AND MOODY'S RATING RELEASE DATED FEBRUARY 18, 2004, IN EACH
CASE, RELATING TO THE COMPANY) HAVE BEEN GIVEN FROM SUCH RATING AGENCIES OF ANY
INTENDED OR POTENTIAL DOWNGRADING, OR OF
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ANY REVIEW FOR A POSSIBLE CHANGE THAT DOES NOT INDICATE THE DIRECTION OF THE
POSSIBLE CHANGE IN ANY SUCH RATINGS;
(III)
THE REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY AND EACH GUARANTOR, AS THE CASE MAY BE, AND SET FORTH
IN SECTION 1 OF THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
(WITHOUT GIVING EFFECT TO ANY LIMITATION AS TO "MATERIALITY" OR "MATERIAL
ADVERSE CHANGE" SET FORTH THEREIN) WITH THE SAME FORCE AND EFFECT AS THOUGH
EXPRESSLY MADE ON AND AS OF THE CLOSING DATE; AND
(IV)
THE COMPANY AND THE GUARANTORS HAVE COMPLIED
IN ALL MATERIAL RESPECTS WITH ALL THE AGREEMENTS AND SATISFIED ALL THE
CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED AT OR PRIOR TO THE CLOSING
DATE.
(g)
E&Y Comfort Letter and Bring-down Comfort
Letters.
On the Closing Date the Initial Purchaser shall have received (i) from
Ernst & Young LLP, independent public or certified public accountants, a letter
dated the date hereof addressed to the Initial Purchaser, in form and substance
reasonably satisfactory to the Initial Purchaser, containing statements and
information of the type ordinarily included in accountant's "comfort letters" to
the Initial Purchaser, delivered according to Statement of Auditing Standards
Nos. 71, 72, 76 and 100 (or any successor bulletins), with respect to the
audited and unaudited financial statements of the business to be acquired in the
CMI Acquisition