duly and validly authorized by all necessary corporate action on the part
of such Subclass B-1 Note Purchaser.
This Subclass B-1 Note Purchase Agreement
has been duly and validly executed and delivered by such Subclass B-1 Note
Purchaser and constitutes a legal, valid and binding obligation of such Subclass
B-1 Note Purchaser, enforceable against such Subclass B-1 Note Purchaser in
accordance with its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity.
Neither the execution and delivery by such Subclass B-1
Note Purchaser of this Subclass B-1 Note Purchase Agreement nor the consummation
by such Subclass B-1 Note Purchaser of any of the transactions contemplated
hereby, nor the fulfillment by such Subclass B-1 Note Purchaser of the terms
hereof, will conflict with, or violate, result in a breach of or constitute a
default under (i) any term or provision of the Articles of Incorporation or
By-laws of such Subclass B-1 Note Purchaser or any Governmental Rule applicable
to such Subclass B-1 Note Purchaser or (ii) any term or provision of any
indenture or other agreement or instrument, to which such Subclass B-1 Note
Purchaser is a party or by which such Subclass B-1 Note Purchaser or any portion
of its properties are bound.
No Governmental Action which has not been obtained
is required by or with respect to such Subclass B-1 Note Purchaser in connection
with the execution and delivery of this Subclass B-1 Note Purchase Agreement by
such Subclass B-1 Note Purchaser or the consummation by such Subclass B-1 Note
Purchaser of the transactions contemplated hereby or thereby.
SECTION 5.03.
SECURITIES ACT.
(A)
THE SUBCLASS B-1 NOTES PURCHASED BY THE SUBCLASS B-1 NOTE
PURCHASERS PURSUANT TO THIS SUBCLASS B-1 NOTE PURCHASE AGREEMENT WILL BE
ACQUIRED FOR INVESTMENT ONLY AND NOT WITH A VIEW TO ANY PUBLIC DISTRIBUTION
THEREOF, AND EACH SUBCLASS B-1 NOTE PURCHASER (AS TO ITSELF) WILL NOT OFFER TO
SELL OR OTHERWISE DISPOSE OF ITS SUBCLASS B-1 NOTES (OR ANY INTEREST THEREIN) IN
VIOLATION OF ANY OF THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY
APPLICABLE STATE OR OTHER SECURITIES LAWS.
THE SUBCLASS B-1 NOTE PURCHASERS
ACKNOWLEDGES THAT IT
16
HAS NO RIGHT TO REQUIRE THE ISSUER TO REGISTER THE SUBCLASS B-1 NOTES UNDER THE
SECURITIES ACT OR ANY OTHER SECURITIES LAW.
EACH OF THE SUBCLASS B-1 NOTE
PURCHASERS AGREES THAT THE SUBCLASS B-1 NOTES MAY NOT BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT
AND TO A PERSON THAT SUCH SUBCLASS B-1 NOTE PURCHASER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, AND
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE OR PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES
ACT.
NEITHER THE SUBCLASS B-1