THE APPLICABLE TIME, AND SHALL BE TRUE AND CORRECT ON THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF THE CLOSING
DATE.
THE COMPANY SHALL HAVE PERFORMED OR COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL OF THE AGREEMENTS CONTAINED HEREIN AND REQUIRED TO BE PERFORMED OR
COMPLIED WITH BY IT AT OR PRIOR TO THE CLOSING DATE.
(B)
SUBSEQUENT TO THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND PRIOR TO THE CLOSING DATE:
(I)
THERE SHALL NOT HAVE OCCURRED ANY
DOWNGRADING, NOR SHALL ANY NOTICE HAVE BEEN GIVEN OF ANY INTENDED OR POTENTIAL
DOWNGRADING OR OF ANY REVIEW FOR A POSSIBLE CHANGE THAT DOES NOT INDICATE THE
DIRECTION OF THE POSSIBLE CHANGE, IN THE RATING ACCORDED THE COMPANY OR ANY OF
THE SECURITIES OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR IN THE RATING
OUTLOOK FOR THE COMPANY BY ANY "NATIONALLY RECOGNIZED STATISTICAL RATING
ORGANIZATION," AS SUCH TERM IS DEFINED FOR PURPOSES OF RULE 436(G)(2) UNDER THE
SECURITIES ACT; AND
(II)
THERE SHALL NOT HAVE OCCURRED ANY CHANGE,
OR ANY DEVELOPMENT INVOLVING A PROSPECTIVE CHANGE, IN THE CONDITION, FINANCIAL
OR OTHERWISE, OR IN THE EARNINGS, BUSINESS OR OPERATIONS OF THE COMPANY AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, FROM THAT SET FORTH IN THE TIME OF SALE
MEMORANDUM AND THE FINAL OFFERING MEMORANDUM (EXCLUSIVE OF ANY AMENDMENT OR
SUPPLEMENT THERETO) THAT, IN YOUR JUDGMENT, IS MATERIAL AND ADVERSE AND THAT
MAKES IT, IN YOUR JUDGMENT, IMPRACTICABLE TO MARKET THE SECURITIES ON THE TERMS
AND IN THE MANNER CONTEMPLATED IN THE TIME OF SALE MEMORANDUM AND THE FINAL
OFFERING MEMORANDUM.
(C)
THE INITIAL PURCHASERS SHALL HAVE RECEIVED
ON THE CLOSING DATE A CERTIFICATE, DATED THE CLOSING DATE AND SIGNED BY EACH OF
THE CHIEF EXECUTIVE OFFICER AND
10
THE CHIEF FINANCIAL OFFICER OF THE COMPANY, TO THE EFFECT SET FORTH IN SECTION
5(B) ABOVE AND TO THE EFFECT THAT THE REPRESENTATIONS AND WARRANTIES OF THE
COMPANY CONTAINED IN THIS AGREEMENT ARE TRUE AND CORRECT AS OF THE CLOSING DATE
AND THAT THE COMPANY HAS COMPLIED WITH ALL OF THE AGREEMENTS AND SATISFIED ALL
OF THE CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED HEREUNDER ON OR
BEFORE THE CLOSING DATE.
Each of the officers signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(D)
THE INITIAL PURCHASERS SHALL HAVE RECEIVED
ON THE CLOSING DATE AN OPINION OR OPINIONS OF PILLSBURY WINTHROP SHAW PITTMAN
LLP, OUTSIDE COUNSEL FOR THE COMPANY, TO THE EFFECT SET FORTH IN EXHIBIT A-1,
AND AN OPINION OF HARLAN HATFIELD, ESQ., SECRETARY AND GENERAL COUNSEL OF THE
COMPANY, TO THE EFFECT SET FORTH IN EXHIBIT A-2, IN EACH CASE DATED AS OF THE
CLOSING DATE.
SUCH OPINIONS SHALL BE RENDERED TO THE INITIAL PURCHASERS AT THE
REQUEST OF THE COMPANY AND SHALL SO STATE THEREIN.
(E)
THE INITIAL PURCHASERS SHALL HAVE RECEIVED
ON THE CLOSING DATE AN OPINION OF SHEARMAN & STERLING LLP, COUNSEL FOR THE
INITIAL PURCHASERS,