ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each Purchaser, on behalf of itself and no other person, hereby represents and
warrants to the Company as follows:
SECTION 3.1.
AUTHORIZATION; ENFORCEABILITY; NO VIOLATIONS.
(A)
THE PURCHASER IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION AND HAS THE
REQUISITE POWER AND AUTHORITY TO OWN ITS PROPERTIES AND ASSETS AND TO CARRY ON
ITS BUSINESS AS IT IS NOW BEING CONDUCTED. THE PURCHASER IS DULY QUALIFIED TO DO
BUSINESS IN EACH JURISDICTION IN WHICH THE CHARACTER OF THE PROPERTIES OWNED OR
LEASED BY IT OR THE NATURE OF ITS BUSINESS MAKES SUCH QUALIFICATION NECESSARY,
EXCEPT WHERE THE FAILURE TO SO QUALIFY COULD NOT REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT ON THE PURCHASER.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE PURCHASER OF THIS
AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT
AND WILL NOT VIOLATE ANY PROVISION OF THE GOVERNING DOCUMENTS OF THE PURCHASER,
OR OF ANY MATERIAL AGREEMENT OR INSTRUMENT TO WHICH THE PURCHASER IS A PARTY OR
BY WHICH IT IS BOUND, OR TO WHICH ANY OF ITS PROPERTIES OR ASSETS IS SUBJECT, OR
OF ANY APPLICABLE LAW.
THE PURCHASER HAS DULY EXECUTED AND DELIVERED THIS
AGREEMENT.
THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION
OF THE PURCHASER, ENFORCEABLE AGAINST THE PURCHASER IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT
OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY (REGARDLESS
OF WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR AT LAW).
SECTION 3.2.
GOVERNMENTAL AND OTHER THIRD PARTY CONSENTS.
EXCEPT AS
REQUIRED BY APPLICABLE FILING REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, THE APPLICABLE FILING REQUIREMENTS OF STATE SECURITIES LAWS,
THE PURCHASER'S AGREEMENTS WITH THE COMPANY'S SENIOR LENDERS, CONGRESS FINANCIAL
CORPORATION AND U.S. BANK, NATIONAL ASSOCIATION, AND THOSE CONSENTS FOR WHICH
THE FAILURE TO OBTAIN WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE PURCHASER,
THE PURCHASER IS NOT REQUIRED TO OBTAIN ANY CONSENT FROM, OR TO MAKE ANY
DECLARATION OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON IN
CONNECTION WITH THE EXECUTION,
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delivery and performance of this Agreement, including, without limitation, the
purchase of the Shares as contemplated hereunder.
SECTION 3.3.
PRIVATE PLACEMENT.
(A)
THE PURCHASER UNDERSTANDS THAT THE OFFERING AND SALE OF THE SHARES
BY THE COMPANY TO THE PURCHASER ARE INTENDED TO BE EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
(B)
THE SHARES TO BE ACQUIRED BY THE PURCHASER PURSUANT TO THIS
AGREEMENT ARE BEING ACQUIRED FOR ITS OWN ACCOUNT AND WITHOUT A VIEW TO MAKING A
DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT.
(C)
THE PURCHASER HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS SO AS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF
ITS INVESTMENT IN THE SHARES AND THE PURCHASER IS