OF LAW WHICH WOULD (A) SUBJECT THE PURCHASERS TO
ANY MATERIAL PENALTY OR ONEROUS CONDITION UNDER OR PURSUANT TO ANY REQUIREMENT
OF LAW IF THE AMENDED AND RESTATED TRANCHE 1 NOTES (IF APPLICABLE) OR TRANCHE 2
NOTES WERE TO BE PURCHASED HEREUNDER OR (B) RESTRICT THE OPERATION OF THE
BUSINESS OF THE COMPANY OR ANY SUBSIDIARY AS CONDUCTED ON THE DATE HEREOF IN A
MANNER THAT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE CONDITION OF THE
COMPANY.
(J)
NO LITIGATION. NO ACTION, SUIT,
PROCEEDING, CLAIM OR DISPUTE SHALL HAVE BEEN BROUGHT OR OTHERWISE ARISEN AT LAW,
IN EQUITY, IN ARBITRATION OR BEFORE ANY GOVERNMENTAL AUTHORITY AGAINST THE
COMPANY OR ANY SUBSIDIARY WHICH WOULD, IF ADVERSELY DETERMINED (A) HAVE A
MATERIAL ADVERSE EFFECT ON THE CONDITION OF THE COMPANY OR (B) HAVE A MATERIAL
ADVERSE EFFECT ON THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT OR EACH OF THE OTHER TRANSACTION DOCUMENTS.
(K)
NO DELISTING NOTICE. THE COMPANY SHALL NOT
HAVE RECEIVED ANY NOTICE FROM THE NASDAQ STOCK MARKET THAT THE COMPANY MAY BE
DELISTED, WHICH NOTIFICATION HAS NOT BEEN RESOLVED IN FAVOR OF THE COMPANY.
(L)
MATERIAL ADVERSE EFFECT. SINCE SEPTEMBER
30, 2007, NO EVENT SHALL HAVE OCCURRED OR BE REASONABLY LIKELY TO OCCUR THAT
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(M)
REIMBURSEMENT OF EXPENSES. THE COMPANY SHALL
HAVE TENDERED PAYMENT FOR REIMBURSEMENT OF ALL TRANSACTION EXPENSES IN
ACCORDANCE WITH SECTIONS 1.4(B) AND 9.6.
(N)
OFFER TO SELL NOTES. THE COMPANY AND EACH
HOLDER OF AN EXISTING NOTE SHALL HAVE ENTERED INTO THE OFFER TO SELL NOTES AND
THE OFFER TO SELL NOTES SHALL BE IN FULL FORCE AND EFFECT, AND THE COMPANY SHALL
HAVE DELIVERED AND NOT REVOKED OR MODIFIED THE NOTICE OF PREPAYMENT.
(O)
OTHER DOCUMENTS. THE PURCHASERS SHALL HAVE
RECEIVED FROM THE COMPANY SUCH OTHER DOCUMENTS AS THEY MAY REASONABLY REQUEST.
Section 2.4
Conditions to
Obligations of the Company at Each Closing. The obligations of the Company to
consummate the transactions described in this Agreement at each Closing are
subject to the satisfaction (or waiver by the Company), at or before each
Closing, of the following conditions:
(A)
REPRESENTATIONS AND WARRANTIES CORRECT. THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 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 PURCHASERS
CONTAINED IN
6
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 EACH CLOSING DATE, WITH THE SAME EFFECT AS THOUGH MADE
AS OF SUCH DATE, 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 PURCHASERS
SHALL HAVE PERFORMED OR COMPLIED WITH IN ALL MATERIAL RESPECTS ALL AGREEMENTS
AND COVENANTS REQUIRED TO BE