the
Tranche 1 Closing are subject to the satisfaction (or waiver by such Purchaser),
at or before the Tranche 1 Closing, of the following conditions:
(A)
REPRESENTATIONS AND WARRANTIES CORRECT. THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN THIS AGREEMENT OR IN
ANY OTHER TRANSACTION DOCUMENT THAT ARE QUALIFIED AS TO MATERIALITY ARE TRUE AND
CORRECT, AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED
IN THIS AGREEMENT OR IN ANY OTHER TRANSACTION DOCUMENT 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 1 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 1
CLOSING.
(C)
OFFICER'S CERTIFICATE. THE COMPANY AND EACH
SUBSIDIARY PARTY TO THE GUARANTY SHALL HAVE DELIVERED TO THE PURCHASERS A
CERTIFICATE, EXECUTED BY A DULY AUTHORIZED OFFICER OF THE COMPANY OR SUCH
SUBSIDIARY, DATED AS OF THE TRANCHE 1 CLOSING DATE, CERTIFYING AS TO THE
AUTHENTICITY AND CONTINUED
3
EFFECTIVENESS OF ATTACHED COPIES OF THE CERTIFICATE OF INCORPORATION, AS
AMENDED, BYLAWS OR OTHER ORGANIZATIONAL DOCUMENTS, AS APPROPRIATE, AND
RESOLUTIONS OF THE COMPANY'S BOARD OF DIRECTORS (THE "BOARD OF DIRECTORS") AND
THE BOARD OF DIRECTORS OF EACH SUBSIDIARY APPROVING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND BY THE OTHER TRANSACTION DOCUMENTS, AND
AUTHORIZING SPECIFIC OFFICERS TO EXECUTE AND DELIVER THIS AGREEMENT AND EACH OF
THE OTHER TRANSACTION DOCUMENTS TO WHICH SUCH ENTITY IS A PARTY, INCLUDING THE
NOTES.
(D)
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 2.2(A), (B), (G), (H) AND (I) HAVE BEEN
SATISFIED.
(E)
DEFINITIVE TRANSACTION DOCUMENTS. THE
TRANCHE 1 NOTES SHALL HAVE BEEN ISSUED AND DELIVERED BY THE COMPANY TO EACH
PURCHASER.
(F)
CERTIFICATES OF GOOD STANDING. THE
COMPANY SHALL HAVE DELIVERED TO EACH OF THE PURCHASERS A LONG-FORM CERTIFICATE
OF GOOD STANDING FROM THE SECRETARY OF STATE OF THE STATE OF DELAWARE, AND A
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 1 CLOSING.
(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.
(H)
CONSENTS AND WAIVERS. THE COMPANY SHALL HAVE
RECEIVED ALL MATERIAL CONSENTS, APPROVALS, AUTHORIZATIONS, PERMITS AND WAIVERS