Common use of Additional Representations and Warranties of the Company Clause in Contracts

Additional Representations and Warranties of the Company. The Company represents and warrants to Parent and Merger Sub as follows: (a) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.2 of the Merger Agreement: There are issued and outstanding 96,221,857 shares of Common Stock as of the date of this Amendment No. 2. The issuance, sale and delivery of the Issued Shares in accordance with this Amendment No. 2 have been duly authorized by all necessary corporate action on the part of the Company. The Issued Shares have been duly authorized, validly issued, fully paid and nonassessable, free and clear of any Liens with the holder being entitled to all rights accorded to a holder of Common Stock under the CCC and the certificate of incorporation and bylaws of the Company. No person has any preemptive right or right of first refusal which would be triggered by reason of the issuance of the Issued Shares. (b) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.3 of the Merger Agreement: The Company has the requisite corporate power and authority to execute and deliver this Amendment No. 2, to perform its obligations and consummate the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) other than the Merger and, subject to obtaining the affirmative vote for approval of the principal terms of the Merger and adoption of the Merger Agreement (as amended by this Amendment No. 2) and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2), by the Company Shareholder Approval on the record date for the Company Shareholders Meeting to consider the Company Voting Proposal, to consummate the Merger. The Strategic Committee has determined that the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) are advisable and fair to and in the best interests of the Company and its shareholders and has recommended that the full Company Board approve this Amendment No. 2 and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2). Each of the Strategic Committee and the Company Board has determined in good faith, (x) after consultation with its outside counsel and financial advisor, that the Cerberus Proposal no longer constitutes, and could not reasonably be likely to result in, a Superior Proposal, and (y) after consultation with its outside counsel, that failure to take any of the actions described in Sections 6.4(b) or 8.1(c)(ii) of the Merger Agreement would not reasonably be expected to result in a breach of its fiduciary duties to the Company shareholders under applicable Law. The execution, delivery and performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) have been duly authorized by the Company Board (acting upon the unanimous recommendation of the Strategic Committee), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Amendment No. 2, except (solely with respect to the Merger) for the Company Shareholder Approval of the Company Voting Proposal. This Amendment No. 2 has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally. (c) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.4 of the Merger Agreement: The execution and delivery of this Amendment No. 2 by the Company does not, and the performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated hereby will not, (i) violate any provision of the Organizational Documents of the Company, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the material terms, conditions or provisions of any Material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets is bound, (iii) violate any Law applicable to the Company, any of its Subsidiaries or any of their properties or assets that could result in a material Liability to the Company or its Subsidiaries, taken as a whole, or (iv) other than in connection with or compliance with the Securities Act, require the Company or any of its Subsidiaries, as applicable, to make any filing or registration with or notification to, or require the Company or any of its Subsidiaries, as applicable to obtain any authorization, consent or approval of, any Governmental Entity. (d) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.18 of the Merger Agreement: Since September 30, 2009, there has not been any condition, event or occurrence which has had or would be reasonably expected to have a Company Material Adverse Effect.

Additional Representations and Warranties of the Company. The Company represents and warrants to Parent and Merger Sub as follows: follows (a) The following representations and warranties shall be deemed, for all purposes each of and under the Merger Agreement, to form a part of Section 4.2 of the Merger Agreement: There are issued and outstanding 96,221,857 shares of Common Stock as of the date of this Amendment No. 2. The issuance, sale and delivery of the Issued Shares in accordance with this Amendment No. 2 have been duly authorized by all necessary corporate action on the part of the Company. The Issued Shares have been duly authorized, validly issued, fully paid and nonassessable, free and clear of any Liens with the holder being entitled to all rights accorded to a holder of Common Stock under the CCC and the certificate of incorporation and bylaws of the Company. No person has any preemptive right or right of first refusal which would be triggered by reason of the issuance of the Issued Shares. (b) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.3 of the Merger Agreement: ): The Company has the requisite corporate power and authority to execute and deliver this Amendment No. 2, to perform its obligations and consummate the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) other than the Merger and, subject to obtaining the affirmative vote for approval of the principal terms of the Merger and adoption of the Merger Agreement (as amended by this Amendment No. 2Amendment) and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2Amendment), by the Company Shareholder Approval on the record date for the Company Shareholders Meeting to consider the Company Voting Proposal, to perform its obligations and consummate the Mergertransactions contemplated by the Agreement (as amended by this Amendment). The Strategic Committee has determined that the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2Amendment) are advisable and fair to and in the best interests of the Company and its shareholders and has recommended that the full Company Board approve this Amendment No. 2 and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2Amendment). Each of the Strategic Committee and the Company Board has determined in good faith, (x) after consultation with its outside counsel and financial advisor, that the Cerberus Proposal no longer constitutes, and could not reasonably be likely to result in, a Superior Proposal, and (y) after consultation with its outside counsel, that failure to take any of the actions described in Sections 6.4(b) or 8.1(c)(ii) of the Merger Agreement would not reasonably be expected to result in a breach of its fiduciary duties to the Company shareholders under applicable Law. The execution, delivery and performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2Amendment) have been duly authorized by the Company Board (acting upon the unanimous recommendation of the Strategic Committee), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Amendment No. 2Amendment, except (solely with respect to the Merger) for the Company Shareholder Approval of the Company Voting Proposal. This Amendment No. 2 has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally. (c) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.4 of the Merger Agreement: The execution and delivery of this Amendment No. 2 by the Company does not, and the performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated hereby will not, (i) violate any provision of the Organizational Documents of the Company, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the material terms, conditions or provisions of any Material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets is bound, (iii) violate any Law applicable to the Company, any of its Subsidiaries or any of their properties or assets that could result in a material Liability to the Company or its Subsidiaries, taken as a whole, or (iv) other than in connection with or compliance with the Securities Act, require the Company or any of its Subsidiaries, as applicable, to make any filing or registration with or notification to, or require the Company or any of its Subsidiaries, as applicable to obtain any authorization, consent or approval of, any Governmental Entity. (d) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.18 of the Merger Agreement: Since September 30, 2009, there has not been any condition, event or occurrence which has had or would be reasonably expected to have a Company Material Adverse Effect.

Additional Representations and Warranties of the Company. 9.1 The Company represents and warrants to Parent the Underwriters, and Merger Sub as follows: (a) The following acknowledges that the Underwriters are relying upon such representations and warranties shall be deemedin purchasing the Securities, for all purposes of that: 9.1.1 the Company is a corporation existing and in good standing under the Merger AgreementCBCA and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the failure to form be so registered or licensed would not have a part of Section 4.2 Material Adverse Effect; 9.1.2 each of the Merger Agreement: There are Material Subsidiaries is a corporation, company or other entity existing under the laws of its jurisdiction of incorporation and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the failure to be so registered or licensed would not have a Material Adverse Effect; 9.1.3 the Company has the requisite corporate power, authority and capacity to execute and deliver the Main Agreements and to perform its obligations thereunder, and to execute and file with the Canadian Securities Regulators the Prospectus and any Prospectus Amendment, and each of the Company and its Material Subsidiaries has the requisite corporate power, authority and capacity to own, lease and operate its property and assets and to carry on its business as described in the Prospectus; 9.1.4 the authorized share capital of the Company consists of an unlimited number of Common Shares, and an unlimited number of preferred shares, issuable in series, of which 34,431,255 Common Shares and no preferred shares will be issued and outstanding 96,221,857 immediately prior to Closing (assuming no issuance of Common Shares on or after the date hereof pursuant to options or other convertible securities of the Company outstanding on the date hereof). No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any of its Material Subsidiaries of any unissued shares of Common Stock the Company or any of its Material Subsidiaries or any right to convert any obligation into or exchange any shares of the Company or any of its Material Subsidiaries, or for the purchase or acquisition of any shares, material assets or material property of the Company or any of its Material Subsidiaries, except as otherwise referred to in the Prospectus; 9.1.5 the Company beneficially owns, directly or indirectly, 100% of the issued and outstanding shares or other equity interests of each of the Material Subsidiaries (free and clear of all Liens other than Liens granted in connection with the Credit Facilities). All of the issued and outstanding shares of, or other equity interests in, the Material Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable, have not been issued in violation of any applicable Laws or any pre-emptive or similar rights; 9.1.6 in connection with the Offering and the Concurrent Private Placement, the Company will have complied as of Closing with all requirements applicable to it, and obtained all consents and waivers required to be obtained by it, on or prior to Closing under the date of this Amendment No. 2. The issuance, sale and delivery Investor Rights Agreement; 9.1.7 no subsidiary of the Issued Shares Company other than the Material Subsidiaries listed under the heading “Corporate Structure” of the IPO Prospectus (which heading is incorporated by reference in accordance with this Amendment No. 2 the Offering Documents) is required to be disclosed in the Offering Documents pursuant to applicable Canadian Securities Laws; 9.1.8 there are no business relationships, related-party transactions or off-balance sheet transactions involving the Company or any of its subsidiaries or any other person required to be described in the Offering Documents which have not been described therein as required under IFRS or applicable Canadian Securities Laws; 9.1.9 all material accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, pension plan premiums, accrued wages, salaries and commissions and Employee Plans payments of the Company and its subsidiaries have been recorded in conformity, in all material respects, with IFRS and comply in all material respects as to form with the applicable accounting requirements of Canadian Securities Laws, and are reflected on the books and records of the Company and its subsidiaries in all material respects, as applicable; 9.1.10 the Main Agreements and the performance of the Company’s obligations thereunder, the execution and filing with the Canadian Securities Regulators of the Prospectus and any Prospectus Amendments and the issuance and sale of the Firm Subscription Receipts or, if applicable, Additional Subscription Receipts, have been or will at the Closing Time or at the Option Closing Time, as the case may be, be duly authorized by all necessary corporate action on action, and the part of the Company. The Issued Shares Main Agreements have been duly authorized, validly issued, fully paid and nonassessable, free and clear of any Liens with or will at the holder being entitled to all rights accorded to a holder of Common Stock under the CCC and the certificate of incorporation and bylaws of the Company. No person has any preemptive right or right of first refusal which would Closing Time be triggered by reason of the issuance of the Issued Shares. (b) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.3 of the Merger Agreement: The Company has the requisite corporate power and authority to execute and deliver this Amendment No. 2, to perform its obligations and consummate the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) other than the Merger and, subject to obtaining the affirmative vote for approval of the principal terms of the Merger and adoption of the Merger Agreement (as amended by this Amendment No. 2) and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2), by the Company Shareholder Approval on the record date for the Company Shareholders Meeting to consider the Company Voting Proposal, to consummate the Merger. The Strategic Committee has determined that the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) are advisable and fair to and in the best interests of the Company and its shareholders and has recommended that the full Company Board approve this Amendment No. 2 and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2). Each of the Strategic Committee and the Company Board has determined in good faith, (x) after consultation with its outside counsel and financial advisor, that the Cerberus Proposal no longer constitutes, and could not reasonably be likely to result in, a Superior Proposal, and (y) after consultation with its outside counsel, that failure to take any of the actions described in Sections 6.4(b) or 8.1(c)(ii) of the Merger Agreement would not reasonably be expected to result in a breach of its fiduciary duties to the Company shareholders under applicable Law. The execution, delivery and performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) have been duly authorized by the Company Board (acting upon the unanimous recommendation of the Strategic Committee), and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Amendment No. 2, except (solely with respect to the Merger) for the Company Shareholder Approval of the Company Voting Proposal. This Amendment No. 2 has been duly executed and delivered by the Company and is constitutes or will constitute a legal, valid and binding obligation of the Company Company, enforceable against the Company in accordance with its their terms, ; except that such as enforcement thereof may be subject to applicable limited by bankruptcy, insolvency, reorganization, moratorium or other similar Lawslaws affecting the rights of creditors generally and by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable Law; 9.1.11 except for the Investor Rights Agreement or as disclosed in the Prospectus, now or hereafter in effectthere are no shareholders’ agreements, affecting creditorsvoting agreements, investors’ rights and remedies generally. (c) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.4 of the Merger Agreement: The execution and delivery of this Amendment No. 2 by the Company does not, and the performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated hereby will not, (i) violate any provision of the Organizational Documents of the Company, (ii) result agreements or other agreements in a violation force or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the material terms, conditions or provisions of any Material Contract effect to which the Company or any of its Material Subsidiaries is a party and which in any manner affects or by which will affect the voting or control of any of them or any the securities of their properties or assets is bound, (iii) violate any Law applicable to the Company, any of its Subsidiaries or any of their properties or assets that could result in a material Liability to the Company or its Subsidiaries, taken as a whole, or (iv) other than in connection with or compliance with the Securities Act, require the Company or any of its Material Subsidiaries, as applicable, the nomination of directors to make any filing or registration with or notification to, or require the board of the Company or any of its Material Subsidiaries or the operations or affairs of the Company or any of its Material Subsidiaries; 9.1.12 the form of the certificates representing the Common Shares has been, and the form of the certificate representing the Securities, if any, will have been as of the Closing Time duly approved and adopted by the Company and comply or will comply, as applicable the case may be, in all material respects with the requirements of the CBCA and the TSX and do not or will not, as the case may be, conflict with the Company’s by-laws and constating documents; 9.1.13 the rights, privileges, restrictions, conditions and other terms attaching to obtain any authorizationthe Securities, consent or approval ofthe Common Shares and the preferred shares of the Company conform in all material respects to the respective descriptions thereof contained in the Prospectus; 9.1.14 since January 1, any Governmental Entity.2022, and except as otherwise disclosed in the Prospectus, (di) The following representations there has been no Material Adverse Change, (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and warranties shall be deemedits subsidiaries taken as a whole, and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (i) the Audited Financial Statements have been prepared in accordance with IFRS applied on a consistent basis throughout the periods involved and present fairly in all material respects the consolidated financial position of the Company as at March 27, 2021 and March 28, 2020, the consolidated loss, comprehensive loss and cash flows of the Company for the 52-week periods ended March 27, 2021 and March 28, 2020 and the consolidated changes in equity of the Company for the 52-week periods ended March 27, 2021 and March 28, 2020; and (ii) the Interim Financial Statements have been prepared in accordance with IAS 34 Interim Financial Reporting applied on a consistent basis throughout the periods involved and present fairly in all material respects the consolidated financial position of the Company as at January 1, 2022 and January 2, 2021 and the consolidated profit or loss of the Company for the 16- and 40-week periods ended January 1, 2022 and January 2, 2021 and the consolidated changes in equity and cash flows of the Company for the 16- and 40-week periods ended January 1, 2022 and January 2, 2021; 9.1.16 except, in the case of the Company, for all purposes the Credit Facilities or as described in the Offering Documents (including the Financial Statements), neither the Company nor any of its subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and under the Merger Agreement, to form its subsidiaries taken as a part of Section 4.18 whole; 9.1.17 none of the Merger AgreementCompany or any of its subsidiaries has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding, except: Since September 30(i) as disclosed or contemplated in the Offering Documents, 2009including the Financial Statements contained therein, and (ii) as incurred in the ordinary course of business by the Company or any of its subsidiaries, and which do not have a Material Adverse Effect; 9.1.18 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since January 1, 2022, (i) there has not been any conditionchange in the share capital, event long-term debt, financial condition or occurrence which operations of the Company and its subsidiaries taken as a whole other than changes in the ordinary course of business, (ii) the business of the Company and its subsidiaries taken as a whole has had or would be reasonably expected to have a Company Material Adverse Effect.been carried on in the ordinary course,

Additional Representations and Warranties of the Company. The Company hereby represents and warrants to Parent and Merger Sub as follows: (a) The following representations Company has all requisite corporate power and warranties shall be deemed, for all purposes of authority to enter into this Amendment and under to perform its obligations hereunder. The execution and delivery by the Merger Agreement, to form a part of Section 4.2 of the Merger Agreement: There are issued and outstanding 96,221,857 shares of Common Stock as of the date Company of this Amendment No. 2. The issuance, sale and delivery its performance of the Issued Shares in accordance with this Amendment No. 2 its obligations hereunder have been duly authorized by all necessary corporate action on the part of the Company. The Issued Shares have This Amendment has been duly authorizedand validly executed and delivered by the Company and, validly issuedassuming this Amendment constitutes the valid and binding agreement of Parent and Merger Sub, fully paid constitutes the valid and nonassessable, free and clear of any Liens with the holder being entitled to all rights accorded to a holder of Common Stock under the CCC and the certificate of incorporation and bylaws binding agreement of the Company. No person has any preemptive right or right of first refusal which would be triggered by reason of , enforceable against the issuance of Company in accordance with its terms, subject to the Issued SharesBankruptcy and Equity Exception. (b) The following representations and warranties shall be deemed, for all purposes Board of and under the Merger Agreement, to form a part of Section 4.3 Directors of the Merger Agreement: The Company at a duly held meeting in a unanimous vote of those directors present (which directors constituted a quorum) has the requisite corporate power and authority to execute and deliver this Amendment No. 2, to perform its obligations and consummate the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2i) other than the Merger and, subject to obtaining the affirmative vote for approval of the principal terms of the Merger and adoption of the Merger Agreement (as amended by this Amendment No. 2) and the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2), by the Company Shareholder Approval on the record date for the Company Shareholders Meeting to consider the Company Voting Proposal, to consummate the Merger. The Strategic Committee has determined that the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) are advisable and fair to and it is in the best interests of the Company and its shareholders stockholders, and has recommended that declared it advisable, to enter into this Amendment, (ii) approved (x) the full Company Board approve execution, delivery and performance of this Amendment No. 2 and the consummation of the transactions contemplated by the Merger Agreement, as amended by this Amendment, and (y) the acquisition of beneficial ownership of Shares that may be deemed to occur by virtue of the Equity Commitment Letters (pursuant to the terms thereof as of the date hereof) and/or the Specified Guarantor Agreement, including for purposes of the Takeover Statutes, and (iii) resolved to recommend that the stockholders of the Company approve the adoption of the Merger Agreement, as amended by this Amendment, and directed that such matter be submitted for a vote of the stockholders of the Company at the Company Meeting, (iv) assuming that the representations of Parent and Merger Sub set forth in Section 4.13 of the Merger Agreement and the representations of Parent and Merger Sub with respect to Section 4.13 of the Merger Agreement set forth in Section 3.2(d) of this Amendment are correct, taken all necessary actions so that the restrictions in Takeover Statutes are not applicable to the Company, Parent, Merger Sub or their Affiliates or the Guarantors (including ▇▇▇▇▇▇▇) or their Subsidiaries, or the Merger Agreement (as amended by this Amendment No. 2Amendment) or the transactions contemplated thereby (including the Merger). Each of the Strategic Committee and the Company Board has determined in good faith, (x) after consultation with its outside counsel and financial advisor, that the Cerberus Proposal no longer constitutes, and could not reasonably be likely to result in, a Superior Proposal, and (yv) after consultation with its outside counselexempted Parent, that failure to take Merger Sub, the Guarantors (including ▇▇▇▇▇▇▇) or any of their Affiliates or Associates (each as defined in the actions described in Sections 6.4(bRights Plan) or 8.1(c)(ii) from being an “Acquiring Person” under the Rights Plan as a result of entry into the Merger Agreement would not reasonably be expected to result in a breach of its fiduciary duties to Agreement, this Amendment, the Company shareholders under applicable Law. The executionEquity Commitment Letters, delivery the Limited Guarantees, the ▇▇▇▇▇▇▇ Equity Commitment Letter, the ▇▇▇▇▇▇▇ Limited Guarantee and performance by the Company of this Amendment No. 2 Specified Guarantor Agreement, and the consummation by the Company of any of the transactions contemplated by the Merger Agreement (as amended by this Amendment No. 2) have been duly authorized by the Company Board (acting upon the unanimous recommendation of the Strategic CommitteeAmendment), the Equity Commitment Letters, the Limited Guarantees, the ▇▇▇▇▇▇▇ Equity Commitment Letter, the ▇▇▇▇▇▇▇ Limited Guarantee and no other corporate action the Specified Guarantor Agreement, on the part of the Company is necessary to authorize the execution terms set forth herein and delivery by the Company of this Amendment No. 2, except (solely with respect to the Merger) for the Company Shareholder Approval of the Company Voting Proposal. This Amendment No. 2 has been duly executed and delivered by the Company and is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generallytherein. (c) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.4 of the Merger Agreement: The execution and delivery of this Amendment No. 2 by the Company does not, and the performance by the Company of this Amendment No. 2 and the consummation by the Company of the transactions contemplated hereby will not, (i) violate any provision of the Organizational Documents of the Company, (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the material terms, conditions or provisions of any Material Contract to which the Company or any of its Subsidiaries is a party or by which any of them or any of their properties or assets is bound, (iii) violate any Law applicable to the Company, any of its Subsidiaries or any of their properties or assets that could result in a material Liability to the Company or its Subsidiaries, taken as a whole, or (iv) other than in connection with or compliance with the Securities Act, require the Company or any of its Subsidiaries, as applicable, to make any filing or registration with or notification to, or require the Company or any of its Subsidiaries, as applicable to obtain any authorization, consent or approval of, any Governmental Entity. (d) The following representations and warranties shall be deemed, for all purposes of and under the Merger Agreement, to form a part of Section 4.18 of the Merger Agreement: Since September 30, 2009, there has not been any condition, event or occurrence which has had or would be reasonably expected to have a Company Material Adverse Effect.