OF CONSENTS, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY
AND SUCH PURCHASER, TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FROM
CONGRESS FINANCIAL CORPORATION AND U.S. BANK, NATIONAL ASSOCIATION, THE
COMPANY'S SENIOR LENDERS, AND (II) RECEIPT BY THE BOARD OF DIRECTORS OF THE
COMPANY OF A FAIRNESS OPINION, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY
AND SUCH PURCHASER, FROM HOULIHAN, LOKEY, HOWARD & ZUKIN WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Purchaser as follows:
SECTION 2.1.
AUTHORIZATION; ENFORCEABILITY.
(A)
THE COMPANY IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE STATE OF WASHINGTON 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 COMPANY IS DULY QUALIFIED TO DO
BUSINESS AS A FOREIGN CORPORATION 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 COMPANY.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY 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 COMPANY, OR
OF ANY MATERIAL AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY 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 COMPANY HAS DULY EXECUTED AND DELIVERED THIS
AGREEMENT.
THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION
OF THE COMPANY, ENFORCEABLE AGAINST THE COMPANY 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 2.2.
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 COMPANY'S AGREEMENTS WITH ITS SENIOR
2
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 Company, the Company 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, delivery and performance of this
Agreement, including, without limitation, the issuance, sale and delivery of the
Shares as contemplated hereunder.
SECTION 2.3.
VALIDITY AND ISSUANCE OF SHARES.
THE SHARES HAVE BEEN DULY
AUTHORIZED AND WHEN ISSUED, DELIVERED AND PAID FOR PURSUANT TO THE TERMS OF THIS
AGREEMENT, WILL BE DULY AND VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE.