Common use of Conditions to the Obligations of the Holders Clause in Contracts

Conditions to the Obligations of the Holders. The obligation of the Holders to exchange the Old Notes for the New Notes is subject to the satisfaction (or, to the extent permitted by law, waiver by each Holder), at or prior to the Closing Date, of the following additional conditions: (a) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects, the Company shall have performed and complied with all covenants and agreements required by this Agreement to be performed by it at or prior to the Closing Date, and each Holder shall have received a certificate, dated the Closing Date, signed by an authorized officer of the Company to the foregoing effect; (c) the Company shall have delivered to each Holder an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the New Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (ii) the Indenture has been duly authorized, executed and delivered by each of the Company and each of the Guarantors organized under the laws of Delaware (the “Delaware Guarantors”) and is a valid and binding agreement of the Company, and (assuming due authorization, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (iii) this Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors; (iv) the Registration Rights Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law; (v) each of the Delaware Guarantors has duly authorized its Guarantee of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee of each Guarantor will be the legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; and (vi) the Exchange will not contravene the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old Notes. (d) the Company and the Guarantors shall have executed and delivered the Indenture and the Registration Rights Agreement; (e) The Holders shall have received copies of each of the Credit Agreement Amendment and the Second Lien Credit Agreement Amendment, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior consent of the Holders; (f) all fees and expenses payable to the Holders on or prior to the Closing Date shall have been paid in full; and (g) each Holder shall have received all documents reasonably requested by it relating to the existence of the Company and the corporate authority for entering into this Agreement and the consummation of the transactions contemplated hereby, all in form and substance reasonably satisfactory to it.

Conditions to the Obligations of the Holders. The obligation consent of the Holders to exchange the Old Notes for amendment of the New Notes Existing Preferred Stock as set forth in the Certificate of Designations is subject to the satisfaction (or, to the extent permitted by law, waiver by each Holder), at or prior to the Closing Date, of the following additional conditions: (a) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the representations and warranties of the Company and XxXxxxx Holdings contained in this Agreement shall be true and correct in all material respects, each of the Company and XxXxxxx Holdings shall have performed and complied with all covenants and agreements required by this Agreement to be performed by it or complied with by it at or prior to the Closing Date, and each Holder shall have received a certificate, dated the Closing Date, signed by an authorized officer of each of the Company and XxXxxxx Holdings to the foregoing effect; (b) new certificates representing the shares of Senior Preferred Stock and Common Stock to be issued to the Holders hereunder shall have been prepared and made available for delivery to the Holders in exchange for Existing Preferred Stock certificates as provided in Section 1.02; (c) the Certificate of Designations shall have been filed with the Secretary of State of Delaware prior to or concurrently with the Closing; (d) the Company and the DLJ Entities (as defined in the Investors’ Agreement) shall have executed and delivered the Junior Preferred Stock Waiver; (e) the Company shall have executed and delivered the Registration Rights Agreement Amendment and the Investors’ Agreement Amendment and XxXxxxx Holdings, with the approval of its board of directors and the holders of at least 75% of the outstanding shares of common stock and preferred stock of XxXxxxx Holdings, shall have executed and delivered the Investors’ Agreement Amendment; (f) The Holders shall have received copies of each of the Credit Agreement Amendment, the Second Lien Credit Agreement Amendment, the Exchange Agreement relating to the exchange of the Old Notes for the New Notes and the Indenture for the New Notes, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior consent of the Holders; (g) the Company shall have delivered to each Holder an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the CompanyCompany and XxXxxxx Holdings, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the Company and XxXxxxx Holdings are validly existing and in good standing under the laws of the State of Delaware with corporate power to enter into the amendment; (ii) the Common Stock to be issued pursuant to this Agreement has been duly authorized by XxXxxxx Holdings and, when issued and delivered to the Holders, will be fully paid and nonassessable; (iii) the filing of the Certificate of Designations by the Company in the State of Delaware and the issuance by XxXxxxx Holdings of the Common Stock pursuant to this Agreement do not (A) contravene the Certificate of Incorporation or By-laws of XxXxxxx Holdings or of the Company, (B) contravene the Indenture, the indenture governing the Old Notes, the Credit Agreement or the Second Lien Credit Agreement or (C) violate any New York or federal law that in our experience are normally applicable to transactions of this type; provided that Xxxxx Xxxx & Xxxxxxxx expresses no opinion as to federal or state securities laws; (iv) each of this Agreement, the Investors’ Agreement Amendment and the Registration Rights Agreement Amendment has been duly authorized, executed and delivered by each of the Company and XxXxxxx Holdings (to the extent party thereto) and is a valid and binding agreement of the Company and XxXxxxx Holdings (to the extent party thereto) in each case enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally and equitable principles of general applicability and except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (v) the Certificate of Designations has been duly authorized by all necessary corporate action on the part of the Company; (vi) the New Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this the Exchange Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (iivii) the Indenture has been duly authorized, executed and delivered by each of the Company and each of the affiliates of the Company set forth on the signature pages of the Indenture as Guarantors (the “Guarantors”) organized under the laws of Delaware (the “Delaware Guarantors”) and is a valid and binding agreement of the Company, and (assuming due authorization, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; , except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto;; and (iii) this Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors; (iv) the Registration Rights Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law; (vviii) each of the Delaware Guarantors has duly authorized its Guarantee of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee of each Guarantor will be the legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; and (vi) the Exchange will not contravene the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old Notes. (d) the Company and the Guarantors shall have executed and delivered the Indenture and the Registration Rights Agreement; (e) The Holders shall have received copies of each of the Credit Agreement Amendment and the Second Lien Credit Agreement Amendment, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior consent of the Holders; (fh) all fees and expenses payable to the Holders on or prior to the Closing Date shall have been paid in full; and (gi) each Holder shall have received all documents reasonably requested by it relating to the existence of the Company and XxXxxxx Holdings and the corporate authority for entering into this Agreement and the consummation of the transactions contemplated hereby, all in form and substance reasonably satisfactory to it.

Conditions to the Obligations of the Holders. The obligation of the Holders to exchange the Old Notes for the New Notes is subject to the satisfaction (or, to the extent permitted by law, waiver by each Holder), at or prior to the Closing Date, of the following additional conditions: (a) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects, the Company shall have performed and complied with all covenants and agreements required by this Agreement to be performed by it at or prior to the Closing Date, and each Holder shall have received a certificate, dated the Closing Date, signed by an authorized officer of the Company to the foregoing effect; (cb) the Company shall have delivered to each Holder an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the New Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (ii) the Indenture has been duly authorized, executed and delivered by each of the Company and each of the Guarantors organized under the laws of Delaware (the “Delaware Guarantors”) and is a valid and binding agreement of the Company, and (assuming due authorization, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto;; and (iii) this Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors; (iv) the Registration Rights Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law; (v) each of the Delaware Guarantors has duly authorized its Guarantee of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee of each Guarantor will be the legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; and (vi) the Exchange will not contravene the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old Notes. (d) the Company and the Guarantors shall have executed and delivered the Indenture and the Registration Rights Agreement; (ec) The Holders shall have received copies of each of the Credit Agreement Amendment and the Second Lien Credit Agreement Amendment, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior consent of the Holders; (f) all fees and expenses payable to the Holders on or prior to the Closing Date shall have been paid in full; and (gd) each Holder shall have received all documents reasonably requested by it relating to the existence of the Company and the corporate authority for entering into this Agreement and the consummation of the transactions contemplated hereby, all in form and substance reasonably satisfactory to it.

Conditions to the Obligations of the Holders. The obligation of the Holders hereunder to deliver the original Notes to the Company in exchange the Old Notes for the New Notes Company's delivery of the Cash Consideration and the Shares is subject to the satisfaction (orsatisfaction, to at or before the extent permitted by lawClosing Date, waiver by of each of the following conditions, provided that such conditions are for each Holder's sole benefit and may be waived by any Holder at any time in such Holder's sole discretion: (a) The Company shall have executed this Agreement and each other Transaction Document to which the Company is a party and delivered executed originals of the same to such Holder. (b) The Certificate of Designation shall have been filed and accepted for filing with the Secretary of State of the State of Delaware and a copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Holder. (c) The Company shall have delivered to such Holder one or more duly executed certificates representing the Shares (in such denominations as such Holder may request), registered in such Holder's name. (d) The Common Stock shall be authorized for quotation and listed on the Bulletin Board and trading in the Common Stock (or on the Bulletin Board generally) shall not have been suspended by the SEC or the Bulletin Board. (e) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date, of the following additional conditions: (a) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects, the Company shall have performed and complied with all covenants and agreements required by this Agreement to be performed by it at or prior to the Closing Date, and each . Such Holder shall have received a certificate, dated the Closing Date, signed executed by an authorized officer of the Company after reasonable investigation, dated as of the Closing Date to the foregoing effect;effect and as to such other matters as may reasonably be requested by such Holder. (cf) No statute, rule, regulation, executive order, decree, ruling, injunction, action or proceeding shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby that questions the validity of, challenges or prohibits the consummation of, any of the transactions contemplated by this Agreement. (g) There shall have been no material adverse changes and no material adverse developments in the business, properties, operations, prospects, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, since the date hereof, and no information that is materially adverse to the Company and of which such Holder is not currently aware shall come to the attention of such Holder. (h) Such Holder shall have delivered to each Holder an opinion received a copy of Xxxxx Xxxx & Xxxxxxxxresolutions, special counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the New Notes have been duly authorized adopted by the Company and, when executed and authenticated in accordance with the provisions Board of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations Directors of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (ii) the Indenture has been duly authorized, executed and delivered by each of the Company and each of the Guarantors organized under the laws of Delaware (the “Delaware Guarantors”) and is a valid and binding agreement of the Company, and (assuming due authorization, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (iii) this Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors; (iv) the Registration Rights Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law; (v) each of the Delaware Guarantors has duly authorized its Guarantee of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee of each Guarantor will be the legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; and (vi) the Exchange will not contravene the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old Notes. (d) the Company and the Guarantors shall have executed and delivered the Indenture and the Registration Rights Agreement; (e) The Holders shall have received copies of each of the Credit Agreement Amendment and the Second Lien Credit Agreement Amendment, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without at the prior consent time of the Holders;Closing, authorizing the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby, certified as such by the Secretary or Assistant Secretary of the Company, and such other documents they reasonably request in connection with the Closing. (fi) all fees and expenses payable to the Holders on or prior to the Closing Date shall have been paid in full; and (g) each Such Holder shall have received all documents reasonably requested by it relating to the existence an opinion of the Company and the corporate authority for entering into this Agreement and the consummation Company's counsel, dated as of the transactions contemplated herebyClosing Date, all in the form and substance reasonably satisfactory to it.attached hereto as Exhibit B.

Conditions to the Obligations of the Holders. The obligation of the Holders each Holder to exchange its respective Exchange Notes on the Old Notes for the New Notes is Closing shall be subject to the satisfaction (or, to the extent permitted by law, waiver by each Holder), at or fulfillment prior to the Closing Date, of the following additional conditions: (ai) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the The representations and warranties of the Company contained Issuer set forth in Section 4(f) of this Agreement shall be true and correct in all material respects, respects as of the Company shall have performed and complied with all covenants and agreements required by date of this Agreement to be performed by it at or prior to the Closing Date, and each Holder shall have received a certificate, dated the Closing Date, signed by an authorized officer as of the Company to the foregoing effect; (c) the Company shall have delivered to each Holder an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the New Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto;Closing. (ii) the Indenture has been duly authorized, executed The representations and delivered by each warranties of the Company Issuer set forth in this Agreement (other than those contained in Section 4(f)) shall be true and each correct, in all material respects, as of the Guarantors organized under the laws date of Delaware (the “Delaware Guarantors”) this Agreement and is a valid and binding agreement as of the CompanyClosing (unless such representation or warranty speaks only as of a certain date, in which case such representation and (assuming due authorizationwarranty need only be true and correct, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, howeverall material respects, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect theretosuch date); (iii) The Issuer in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement has been duly authorizedto be performed, executed satisfied and delivered by each complied with prior to or at the time of the Company and the Delaware GuarantorsClosing; (iv) The Board shall have approved the Registration Rights Agreement has been duly authorized, executed and delivered by each Transaction for the express purpose of satisfying Section 203(a)(1) of the Company and Delaware General Corporation Law (the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law;“DGCL”); Exchange Agreement Gogo Inc. (v) each The Board shall have pre-approved the acquisition of the Delaware Guarantors has duly authorized its Guarantee Exchange Notes from the Holders and the issuance of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued Conversion Shares to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee express purpose of each Guarantor will be the legally valid and binding obligation of exempting such Guarantor, enforceable against such Guarantor in accordance with its terms, except Holders’ interests (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that such Holder may be deemed to be a waiver “director by deputization”) in such transaction from Section 16(b) of the rights under any usury or stay law may be unenforceable, we express no opinion, howeverSecurities Exchange Act of 1934, as amended, pursuant to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect theretoRule 16b-3 thereunder; and (vi) The Issuer shall have taken all actions necessary or appropriate to cause the Exchange will not contravene Director Designee to remain on the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old NotesBoard. (dvii) The registration rights agreement, in the Company and the Guarantors form attached as Exhibit A hereto, shall have been duly executed and delivered by the Indenture and the Registration Rights AgreementIssuer; (eviii) The Holders shall have received copies of each of registration rights agreement amendment, in the Credit Agreement Amendment and the Second Lien Credit Agreement Amendmentform attached as Exhibit B hereto, each of which shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without duly executed and delivered by the prior consent of the HoldersIssuer; (fix) all fees The Issuer shall have applied for listing of the Conversion Shares on the NASDAQ Global Select Market; (x) Each of Xxxxx’x Investors Service, Inc. and expenses payable Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, shall have assigned to the Holders on or prior to the Closing Date shall have been paid in fullIssuer and its subsidiaries, taken together, a rating of B3/stable and B-3/stable, respectively; and (gxi) each Holder The debt commitment letter (the “Commitment Letter”), dated as of March 31, 2021, by and among the Issuer Xxxxxx Xxxxxxx Senior Funding, Inc., Credit Suisse AG, Cayman Islands Branch and Deutsche Bank AG New York Branch (collectively, the “Commitment Parties”), pursuant to which the Commitment Parties have committed to provide the Issuer senior secured credit facilities, consisting of a seven-year term loan facility in an aggregate amount of $725 million and a five-year revolving credit facility in an aggregate amount of $100 million, shall not have received all documents reasonably requested by it relating to the existence of the Company and the corporate authority for entering into this Agreement and the consummation of the transactions contemplated herebybeen terminated or amended, all supplemented or modified in form and substance reasonably satisfactory to itany respect.

Conditions to the Obligations of the Holders. The obligation obligations of the Holders to exchange the Old Notes for the New Notes is hereunder are subject to the satisfaction satisfaction, on or before the Closing Date, of each of the following conditions, provided that such conditions are for each Holder’s sole benefit and may be waived by any Holder at any time in such Holder’s sole discretion: (ora) The Company shall have executed this Agreement and delivered the same to such Holder. (b) A Certificate of Designation, Preferences and Rights of Series G Convertible Preferred Stock, in form and substance mutually acceptable to the extent permitted Company and the Holders, shall have been filed with the Delaware Secretary of State and a copy thereof, certified by lawthe Delaware Secretary of State, waiver shall have been delivered to the Holders. (c) The Company shall have delivered to such Holder one or more duly executed certificates representing its respective Series G Shares and Exchange Warrant (in such denominations as such Holder may request) registered in such Holder’s name, in form and substance mutually acceptable to the Company and the Holders. (d) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by each Holder)this Agreement to be performed, at satisfied or complied with by the Company on or prior to the Closing Date, of the following additional conditions: (a) no more than $65,000,000 in principal amount of Old Notes shall be exchanged for New Notes or other securities of the Company; (b) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects, the Company shall have performed and complied with all covenants and agreements required by this Agreement to be performed by it at or prior to the Closing Date, and each Holder shall have received a certificate, dated the Closing Date, signed by an authorized officer of the Company to the foregoing effect; (c) the Company shall have delivered to each Holder an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Holders, to the effect that (subject to appropriate assumptions and limitations): (i) the New Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (ii) the Indenture has been duly authorized, executed and delivered by each of the Company and each of the Guarantors organized under the laws of Delaware (the “Delaware Guarantors”) and is a valid and binding agreement of the Company, and (assuming due authorization, execution and delivery by each other Guarantor (the “Non-Delaware Guarantors”)) the Guarantors, enforceable in accordance with its terms; except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; (iii) this Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors; (iv) the Registration Rights Agreement has been duly authorized, executed and delivered by each of the Company and the Delaware Guarantors and is a valid and binding agreement of the Company and (assuming due authorization, execution and delivery by the Non-Delaware Guarantors) the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) rights to indemnity and contribution thereunder may be limited by applicable law; (v) each of the Delaware Guarantors has duly authorized its Guarantee of the New Notes; assuming each of the Non-Delaware Guarantors has duly authorized its Guarantee of the New Notes, when the New Notes and the Guarantee evidenced thereon have been executed and authenticated in accordance with the terms of the Indenture and issued to the Holders in exchange for the Old Notes in accordance with the terms thereof, the Guarantee of each Guarantor will be the legally valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (x) as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally, (y) as such enforcement is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (z) to the extent that a waiver of the rights under any usury or stay law may be unenforceable, we express no opinion, however, as to the applicability (and, if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto; and (vi) the Exchange will not contravene the Credit Agreement, the Second Lien Credit Agreement, or the indenture for the Old Notes. (d) the Company and the Guarantors shall have executed and delivered the Indenture and the Registration Rights Agreement; (e) The Holders shall have received copies of each of the Credit Agreement Amendment and the Second Lien Credit Agreement AmendmentNo statute, each of which shall be in full force and effect and no term rule, regulation, executive order, decree, ruling, injunction, action or condition thereof proceeding shall have been amendedenacted, waived entered, promulgated or otherwise modified without endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the prior consent of matters contemplated hereby that questions the Holders; (f) all fees and expenses payable to the Holders on validity or prior to the Closing Date shall have been paid in full; and (g) each Holder shall have received all documents reasonably requested by it relating to the existence of the Company and the corporate authority for entering into this Agreement and challenges or prohibits the consummation of any of the transactions contemplated hereby, all in form and substance reasonably satisfactory to itby this Agreement.