THAN ANY CURRENT
REPORT ON FORM 8-K REQUIRED TO BE FILED WITH THE SEC) WITH, ANY COURT OR
ADMINISTRATIVE OR GOVERNMENTAL BODY OR AGENCY PURSUANT TO, THE CERTIFICATE OF
INCORPORATION (INCLUDING THE CERTIFICATE OF DESIGNATION) OR BYLAWS OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES, OR ANY MATERIAL LAW, STATUTE, RULE OR
REGULATION TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES ARE SUBJECT, OR ANY
MATERIAL AGREEMENT, INSTRUMENT, ORDER, JUDGMENT OR DECREE TO WHICH THE COMPANY
OR ANY OF ITS SUBSIDIARIES IS SUBJECT.
NO OTHER CORPORATE PROCEEDINGS ARE
NECESSARY FOR THE EXECUTION AND DELIVERY BY THE COMPANY OF THIS AGREEMENT, THE
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER OR THE CONSUMMATION BY IT OF THE
TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT FOR SUCH PROCEEDINGS, INCLUDING
OBTAINING THE AFFIRMATIVE VOTE OF THE COMPANY'S STOCKHOLDERS, AS MAY BE REQUIRED
BY THE APPLICABLE RULES AND REGULATIONS OF ANY UNITED STATES NATIONAL SECURITIES
EXCHANGE ON WHICH ANY CLASS OF THE COMPANY'S CAPITAL STOCK MAY BE LISTED AT THE
TIME OF EXERCISE OF THE WARRANT AND ISSUANCE OF THE WARRANT SHARES.
(F)
AMENDED CREDIT AGREEMENT.
THE COMPANY
AND ITS SUBSIDIARIES SHALL HAVE ENTERED INTO THE AMENDED CREDIT AGREEMENT AND
THE AMENDED CREDIT AGREEMENT IS IN FULL FORCE AND EFFECT.
(G)
COMPANY FINANCIAL STATEMENTS.
(I)
THE CONSOLIDATED FINANCIAL STATEMENTS OF
THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES INCLUDED OR INCORPORATED BY
REFERENCE IN THE REPORTS AND FORMS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") UNDER SECTIONS 13(A), 14(A) OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT") ON OR AFTER JANUARY 1, 2008
AND PRIOR TO THE CLOSING (THE "SEC REPORTS") PRESENT FAIRLY IN ALL MATERIAL
RESPECTS THE CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES AS OF THE DATES INDICATED THEREIN AND THE CONSOLIDATED RESULTS OF
THEIR OPERATIONS FOR THE PERIODS SPECIFIED THEREIN; AND EXCEPT AS STATED
THEREIN, SUCH FINANCIAL STATEMENTS WERE PREPARED IN CONFORMITY WITH GAAP APPLIED
ON A CONSISTENT BASIS (EXCEPT AS MAY BE NOTED THEREIN).
(II)
DELOITTE & TOUCHE LLP, WHO HAVE CERTIFIED
CERTAIN FINANCIAL STATEMENTS OF THE COMPANY AND ITS SUBSIDIARIES, ARE
INDEPENDENT ACCOUNTANTS AS REQUIRED BY THE EXCHANGE ACT AND THE RULES AND
REGULATIONS OF THE COMMISSION AND THE PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD.
(H)
NO MATERIAL ADVERSE EFFECT.
TO THE
COMPANY'S KNOWLEDGE, EXCEPT AS SET FORTH ON SCHEDULE 2.1(H), SINCE DECEMBER 31,
2007, NO FACT, CIRCUMSTANCE, EVENT, CHANGE,
5
OCCURRENCE, CONDITION OR DEVELOPMENT HAS OCCURRED THAT, INDIVIDUALLY OR IN THE
AGGREGATE, HAS HAD OR WOULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE
EFFECT ON THE FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS
A WHOLE.
(I)
REPORTS.
(I)
SINCE DECEMBER 31, 2007, THE COMPANY HAS
COMPLIED IN ALL MATERIAL RESPECTS WITH THE FILING REQUIREMENTS OF SECTIONS
13(A), 14(A) AND 15(D) OF THE EXCHANGE ACT.
(II)
THE SEC REPORTS, WHEN THEY BECAME
EFFECTIVE OR WERE FILED WITH THE COMMISSION, AS THE CASE MAY BE, CONFORMED IN
ALL MATERIAL RESPECTS TO THE REQUIREMENTS OF THE SECURITIES ACT OR THE EXCHANGE
ACT, AS APPLICABLE, AND