RESOLUTIONS OF SUCH NEW CREDIT
PARTY REFERRED TO IN SUCH CERTIFICATE, AND EACH OF THE FOREGOING SHALL BE IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE JOINT LEAD ARRANGERS.
(II)
ON THE RESTATEMENT EFFECTIVE DATE, THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A CERTIFICATE FROM EACH CREDIT PARTY
(OTHER THAN THE NEW CREDIT PARTIES) (X) CERTIFYING THAT THERE WERE NO MATERIAL
CHANGES, OR PROVIDING THE TEXT OF ANY MATERIAL CHANGES, TO THE CERTIFICATE OF
INCORPORATION, BY-LAWS OR EQUIVALENT ORGANIZATIONAL DOCUMENTS OF SUCH CREDIT
PARTY DELIVERED PURSUANT TO SECTION 5.01(C) OF THE EXISTING CREDIT AGREEMENT,
(Y) CERTIFYING THAT SUCH CREDIT PARTY IS IN GOOD STANDING IN ITS RESPECTIVE
STATE OF ORGANIZATION AND IN THOSE STATES WHERE SUCH CREDIT PARTY CONDUCTS
BUSINESS AND (Z) PROVIDING THE RESOLUTIONS ADOPTED BY SUCH CREDIT PARTY WITH
RESPECT TO THE ACTIONS CONTEMPLATED BY THIS AGREEMENT, AND ALL OF THE FOREGOING
SHALL BE REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT.
(III)
ON THE RESTATEMENT EFFECTIVE DATE, THE JOINT
LEAD ARRANGERS SHALL HAVE RECEIVED ALL INFORMATION AND COPIES OF ALL DOCUMENTS
AND PAPERS, INCLUDING RECORDS OF CORPORATE PROCEEDINGS, NECESSARY GOVERNMENTAL
APPROVALS, GOOD STANDING CERTIFICATES AND BRING-DOWN TELEGRAMS OR FACSIMILES, IF
ANY, WHICH THE JOINT LEAD ARRANGERS REASONABLY MAY HAVE REQUESTED IN CONNECTION
THEREWITH, SUCH DOCUMENTS AND PAPERS WHERE APPROPRIATE TO BE CERTIFIED BY PROPER
CORPORATE, LIMITED LIABILITY COMPANY OR GOVERNMENTAL AUTHORITIES.
(D)
CONSUMMATION OF THE ACQUISITION.
ON THE
RESTATEMENT EFFETIVE DATE, THE ACQUISITION AGREEMENT (TOGETHER WITH ALL EXHIBITS
AND SCHEDULES THERETO), SHALL BE IN THE FORM EXECUTED ON APRIL 5, 2005, WITH ANY
ADDITIONS OR CHANGES THERETO OR WAIVERS OF THE TERMS THEREOF WHICH ARE IN ANY
MANNER ADVERSE TO THE LENDERS IN ANY MATERIAL RESPECT TO BE IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE JOINT LEAD ARRANGERS.
THE ACQUISITION
AGREEMENT SHALL BE IN FULL FORCE AND EFFECT AND ALL OF THE MATERIAL CONDITIONS
PRECEDENT TO THE CONSUMMATION OF THE ACQUISITION AS SET FORTH IN THE ACQUISITION
AGREEMENT SHALL HAVE BEEN SATISFIED (AND NOT WAIVED, EXCEPT WITH CONSENT OF THE
JOINT LEAD ARRANGERS (NOT TO BE UNREASONABLY WITHHELD)).
THE ACQUISITION SHALL
HAVE BEEN CONSUMMATED IN ACCORDANCE IN ALL MATERIAL RESPECTS WITH THE TERMS AND
CONDITIONS OF THE ACQUISITION AGREEMENT AND ALL APPLICABLE LAWS.
(E)
ADVERSE CHANGE, APPROVALS.
(I)
EXCEPT AS
SET FORTH IN SECTION 2.6 OF THE COMPANY DISCLOSURE SCHEDULE (AS DEFINED IN THE
ACQUISITION AGREEMENT), AS REFLECTED ON OR RESERVED AGAINST ON THE UNAUDITED
CONSOLIDATED BALANCE SHEET OF FALK AND ITS SUBSIDIARIES AS OF DECEMBER 31, 2004,
OR AS OTHERWISE CONTEMPLATED BY THE ACQUISITION AGREEMENT, THERE NOT OCCURRING,
SINCE DECEMBER 31, 2004, ANY EFFECT ON OR CHANGE IN (OR EVENT OR CIRCUMSTANCE
THAT IS
33
reasonably expected to result in an effect on or change in), the business,
financial condition or results of operations of Falk and its Subsidiaries, taken
as a whole, that results or is reasonably likely to result in the incurrence of
a monetary loss or financial impact to Falk and its Subsidiaries, taken as a
whole, that is greater than $15,000,000, excluding for