THAT ARE NOT SO QUALIFIED
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, IN EACH CASE AS OF THE DATE OF
THIS AGREEMENT AND AS OF THE TRANCHE 2 CLOSING DATE, WITH THE SAME EFFECT AS
THOUGH MADE AS OF THE DATE OF THIS AGREEMENT EXCEPT THAT THE ACCURACY OF
REPRESENTATIONS AND WARRANTIES THAT BY THEIR TERMS SPEAK AS OF A SPECIFIED DATE
WILL BE DETERMINED AS OF SUCH DATE.
(B)
PERFORMANCE OF OBLIGATIONS. THE COMPANY
SHALL HAVE PERFORMED OR COMPLIED WITH IN ALL MATERIAL RESPECTS ALL AGREEMENTS
AND COVENANTS REQUIRED TO BE PERFORMED OR COMPLIED WITH BY IT UNDER THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AT OR PRIOR TO THE TRANCHE 2
CLOSING.
(C)
COMPLIANCE CERTIFICATE. THE PURCHASERS
SHALL HAVE RECEIVED A CERTIFICATE DATED AS OF THE CLOSING DATE AND SIGNED BY THE
CHIEF EXECUTIVE OFFICER OF THE COMPANY ON BEHALF OF THE COMPANY STATING THAT THE
CONDITIONS SPECIFIED IN SECTIONS 2.3(A), (B), (F), (H) AND (I) HAVE BEEN
SATISFIED.
(D)
DEFINITIVE TRANSACTION DOCUMENTS. THE
AMENDED AND RESTATED TRANCHE 1 NOTES (IF APPLICABLE) AND THE TRANCHE 2 NOTES
SHALL HAVE BEEN ISSUED AND DELIVERED BY THE COMPANY TO EACH PURCHASER. THE
COMPANY AND ITS SUBSIDIARIES, AS APPROPRIATE, SHALL HAVE DELIVERED TO THE
PURCHASERS THE SECURITY AGREEMENT, THE PLEDGE AGREEMENT, THE GUARANTY AND EACH
OF THE OTHER TRANSACTION DOCUMENTS, IN EACH CASE DULY EXECUTED BY AN AUTHORIZED
OFFICER OF THE COMPANY AND/OR, AS APPROPRIATE, ITS SUBSIDIARIES.
(E)
SECURITY FILINGS. THE COMPANY SHALL HAVE
EXECUTED AND DELIVERED TO THE PURCHASERS ALL UCC-1 FINANCING STATEMENTS TO BE
FILED AND SUCH OTHER SECURITY DOCUMENTS NECESSARY OR APPROPRIATE FOR THE
PERFECTION OF THE SECURITY INTERESTS GRANTED BY THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT AND BY THE SUBSIDIARIES AS MAY BE REASONABLY REQUESTED BY
THE PURCHASERS.
(F)
CERTIFICATES OF GOOD STANDING. THE
COMPANY SHALL HAVE DELIVERED TO EACH OF THE PURCHASERS A BRING-DOWN CERTIFICATE
OF GOOD STANDING FROM THE SECRETARY OF STATE OF THE STATE OF DELAWARE, AND A
BRING-DOWN GOOD STANDING CERTIFICATE FROM EACH JURISDICTION IN WHICH THE COMPANY
AND ITS SUBSIDIARIES ARE QUALIFIED TO DO BUSINESS, EACH OF WHICH IS TO BE DATED
WITHIN A REASONABLE PERIOD PRIOR TO THE TRANCHE 2 CLOSING.
5
(G)
OPINION OF COMPANY'S COUNSEL. THE PURCHASERS
SHALL HAVE RECEIVED AN OPINION OF GREENBERG TRAURIG, LLP, OUTSIDE COUNSEL TO THE
COMPANY, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE PURCHASERS (WHICH
SUCH OPINION SHALL BE GOVERNED BY NEW YORK LAW).
(H)
CONSENTS AND WAIVERS. THE COMPANY SHALL HAVE
RECEIVED ALL MATERIAL CONSENTS, APPROVALS, AUTHORIZATIONS, PERMITS AND WAIVERS
OF, AND DELIVERED ALL NOTICES TO, THIRD PARTIES NECESSARY FOR THE COMPANY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND BY THE
TRANSACTION DOCUMENTS, AND ALL SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, PERMITS
AND WAIVERS SHALL BE IN FULL FORCE AND EFFECT.
(I)
NO MATERIAL JUDGMENT OR ORDER. THERE
SHALL NOT BE ON THE TRANCHE 2 CLOSING DATE ANY ORDER OF A COURT OF COMPETENT
JURISDICTION OR ANY RULING OF ANY GOVERNMENTAL AUTHORITY OR ANY CONDITION
IMPOSED UNDER ANY REQUIREMENT