BY THE INVESTMENT
DOCUMENTS (I) EBITDA FOR THE ROLLING PERIOD ENDED SEPTEMBER 30, 2003 (CALCULATED
ON A PRO FORMA BASIS GIVING EFFECT TO THE ACQUISITION OF OCTAGON
19
RISK SERVICES, INC.) IS NO LESS THAN $21,500,000 AND (II) THE AGGREGATE AMOUNT
OF THE CONSOLIDATED INDEBTEDNESS OF THE GROUP IS NO GREATER THAN $65,000,000.
3.17
UCC FILINGS.
Each document (including any Uniform Commercial Code financing statement)
reasonably requested by the Purchaser to be filed, registered, recorded in order
to create in favor of the Collateral Agent (as defined in the Cash Collateral
Pledge Agreement), for the benefit of the Purchasers, a perfected lien on the
Collateral, prior and superior in right to the Lien and other rights of any
other Person shall have been delivered and be in proper form for filing,
registration or recordation.
ARTICLE 4
CONDITIONS TO THE OBLIGATIONS
OF THE COMPANY TO ISSUE AND SELL THE NOTE
The obligations of the Company to issue and sell the Note and to perform its
other obligations hereunder relating thereto shall be subject to the
satisfaction as determined by, or waived by, the Company of the following
conditions on or before the Closing Date:
4.01
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER CONTAINED IN ARTICLE 6 HEREOF SHALL BE TRUE AND
CORRECT AT AND AS OF THE DATE HEREOF AND THE CLOSING DATE AS IF MADE AT AND AS
OF SUCH DATE.
4.02
COMPLIANCE WITH THIS AGREEMENT.
THE PURCHASER SHALL
HAVE PERFORMED AND COMPLIED WITH ALL OF ITS AGREEMENTS AND CONDITIONS SET FORTH
OR CONTEMPLATED HEREIN THAT ARE REQUIRED TO BE PERFORMED OR COMPLIED WITH BY THE
PURCHASER ON OR BEFORE THE CLOSING DATE.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as follows; provided
that all representations and warranties relating to the Release Documents or
regarding matters to occur on a Release Date shall be deemed made only upon and
as of such Release Date as and if it occurs:
5.01
CORPORATE EXISTENCE AND POWER.
EACH GROUP MEMBER:
(A) IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF
THE JURISDICTION OF ITS INCORPORATION; (B) HAS ALL REQUISITE ORGANIZATIONAL
POWER AND AUTHORITY TO OWN AND OPERATE ITS PROPERTY, TO LEASE THE PROPERTY IT
OPERATES AS LESSEE AND TO CONDUCT THE BUSINESS IN WHICH IT IS CURRENTLY, OR IS
CURRENTLY PROPOSED TO BE, ENGAGED; (C) IS DULY QUALIFIED AS A FOREIGN ENTITY,
LICENSED AND IN GOOD STANDING UNDER THE LAWS OF EACH JURISDICTION WHERE ITS
OWNERSHIP, LEASE OR OPERATION OF PROPERTY OR THE CONDUCT OF ITS BUSINESS
REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED COULD
NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; AND (D) HAS THE
20
ORGANIZATIONAL POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS UNDER EACH INVESTMENT DOCUMENT OR SENIOR LOAN DOCUMENT TO WHICH IT
IS OR WILL BE A PARTY AND, IN THE CASE OF THE COMPANY, TO ISSUE THE NOTE.
SCHEDULE