PURCHASERS.
THE COMPANY AND THE
GUARANTOR SHALL FURNISH THE INITIAL PURCHASERS SUCH CONFORMED COPIES OF SUCH
OPINIONS, CERTIFICATES, LETTERS, SCHEDULES, DOCUMENTS AND INSTRUMENTS IN SUCH
QUANTITIES AS THE INITIAL PURCHASERS SHALL REASONABLY REQUEST.
(S)
ON OR PRIOR TO THE CLOSING DATE, OR IN THE
CASE OF CLAUSES (I)(A) AND (III) BELOW, SIMULTANEOUSLY WITH THE CLOSING OF THE
OFFERING, THE COMPANY SHALL (I) EITHER (A) USE A PORTION OF THE NET PROCEEDS
FROM THE SALE OF THE INITIAL NOTES TO REPAY THE CREDIT AGREEMENT AS DESCRIBED IN
THE OFFERING MEMORANDUM UNDER THE CAPTION "USE OF PROCEEDS" OR (B) HAVE OBTAINED
31
a waiver or consent, in form and substance reasonably satisfactory to the
Initial Purchasers, from the requisite lenders under the Credit Agreement
permitting the Offering; (ii) have delivered to the holders of the Company's
existing 14% Series B Senior Discount Notes due 2008 irrevocable notice of
redemption of such notes in accordance with the terms of the note purchase
agreement governing such notes; (iii) use a portion of the net proceeds from the
sale of the Initial Notes to repurchase the Company's 14% Senior Discount Notes
due 2010 from Bear, Stearns & Co. Inc. as described in the Offering Memorandum
under the caption "Use of Proceeds"; and (iv) provide evidence to the Initial
Purchasers reasonably satisfactory to the Initial Purchasers that the Company
has completed the actions described in clauses (i), (ii) and (iii) hereof.
11.
INITIAL PURCHASERS' INFORMATION.
THE
COMPANY AND THE GUARANTOR ACKNOWLEDGE THAT THE STATEMENTS WITH RESPECT TO THE
OFFERING OF THE INITIAL NOTES SET FORTH IN THE FIRST SENTENCE OF THE FOURTH
PARAGRAPH, THE FIFTH SENTENCE OF THE SEVENTH PARAGRAPH AND THE EIGHTH PARAGRAPH
UNDER THE HEADING "PLAN OF DISTRIBUTION" IN THE OFFERING MEMORANDUM CONSTITUTE
THE ONLY WRITTEN INFORMATION RELATING TO ANY OF THE INITIAL PURCHASERS FURNISHED
TO THE COMPANY AND THE GUARANTOR BY OR ON BEHALF OF THE INITIAL PURCHASERS
EXPRESSLY FOR USE IN THE OFFERING MEMORANDUM, FOR PURPOSES OF SECTIONS 2(A),
8(A) AND 8(B) HEREOF.
12.
OFFERING OF SECURITIES; RESTRICTIONS ON
TRANSFER.
EACH INITIAL PURCHASER AGREES WITH THE COMPANY AND EACH GUARANTOR AS
TO ITSELF ONLY THAT (I) IT HAS NOT AND WILL NOT SOLICIT OFFERS FOR, OR OFFER OR
SELL, THE SECURITIES BY ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING
(AS THOSE TERMS ARE USED IN REGULATION D UNDER THE ACT) OR IN ANY MANNER
INVOLVING A PUBLIC OFFERING WITHIN THE MEANING OF SECTION 4(2) OF THE ACT; AND
(II) IT HAS AND WILL SOLICIT OFFERS FOR THE SECURITIES ONLY FROM, AND WILL OFFER
THE SECURITIES ONLY TO, PERSONS WITHIN THE UNITED STATES WHOM SUCH INITIAL
PURCHASER REASONABLY BELIEVES TO BE QIBS OR, IF ANY SUCH PERSON IS BUYING FOR
ONE OR MORE INSTITUTIONAL ACCOUNTS FOR WHICH SUCH PERSON IS ACTING AS FIDUCIARY
OR AGENT, ONLY WHEN SUCH PERSON HAS REPRESENTED TO SUCH INITIAL PURCHASER THAT
EACH SUCH ACCOUNT IS A QIB, TO WHOM NOTICE HAS BEEN GIVEN THAT SUCH SALE OR
DELIVERY IS BEING MADE IN RELIANCE ON RULE 144A