OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(G)
PRIVATE OFFERING.
NO FORM OF GENERAL SOLICITATION OR GENERAL
ADVERTISING, INCLUDING, WITHOUT LIMITATION, ADVERTISEMENTS, ARTICLES, NOTICES OR
OTHER COMMUNICATIONS, PUBLISHED IN ANY NEWSPAPER, MAGAZINE OR SIMILAR MEDIUM OR
BROADCAST OVER TELEVISION OR RADIO, OR ANY SEMINAR OR MEETING WHOSE ATTENDEES
HAVE BEEN INVITED BY ANY GENERAL SOLICITATION OR GENERAL ADVERTISING, WAS USED
BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, ANY OF THE REPRESENTATIVES OF THE
COMPANY OR ITS SUBSIDIARIES, OR, ANY OTHER PERSON ACTING ON BEHALF OF THE
COMPANY OR ITS SUBSIDIARIES, IN CONNECTION WITH THE OFFERING OF THE NOTES.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES, NOR ANY PERSON ACTING ON THE
COMPANY'S BEHALF HAS DIRECTLY OR INDIRECTLY OFFERED THE NOTES, OR ANY PART
THEREOF OR ANY OTHER SIMILAR SECURITIES, FOR SALE TO, OR SOLD OR SOLICITED ANY
OFFER TO BUY ANY OF THE SAME FROM, OR OTHERWISE APPROACHED OR NEGOTIATED IN
RESPECT THEREOF WITH ANY PERSON OR PERSONS OTHER THAN THE PURCHASER AND OTHER
INVESTORS WHO THE COMPANY REASONABLY BELIEVED HAD SUCH KNOWLEDGE AND EXPERIENCE
IN FINANCIAL AND BUSINESS MATTERS THAT THEY WERE CAPABLE OF EVALUATING THE
MERITS AND RISKS OF PURCHASING THE NOTES.
11
(H)
MERGER AGREEMENT REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV OF THE MERGER AGREEMENT,
WHICH ARE INCORPORATED HEREIN BY REFERENCE, ARE TRUE AND CORRECT AS OF EACH
CLOSING DATE.
ARTICLE VI.
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants, as follows:
SECTION 6.1
EXISTENCE AND POWER.
THE PURCHASER (A) IS DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION AND (B) HAS THE POWER AND AUTHORITY TO EXECUTE,
DELIVER AND PERFORM ITS OBLIGATIONS UNDER EACH INVESTMENT DOCUMENT TO WHICH IT
IS OR WILL BE A PARTY.
SECTION 6.2
AUTHORIZATION; NO CONTRAVENTION.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE PURCHASER OF THIS AGREEMENT: (A) IS WITHIN ITS
POWER AND AUTHORITY AND HAS BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION; (B)
DOES NOT CONTRAVENE THE TERMS OF ITS ORGANIZATIONAL DOCUMENTS OR ANY AMENDMENT
THEREOF; AND (C) WILL NOT VIOLATE, CONFLICT WITH OR RESULT IN ANY BREACH OR
CONTRAVENTION OF ANY OF ITS MATERIAL CONTRACTUAL OBLIGATIONS, OR ANY ORDER OR
DECREE DIRECTLY RELATING TO IT.
SECTION 6.3
BINDING EFFECT.
THIS AGREEMENT HAS BEEN DULY EXECUTED
AND DELIVERED BY THE PURCHASER AND THIS AGREEMENT CONSTITUTES ITS LEGAL, VALID
AND BINDING OBLIGATION, ENFORCEABLE AGAINST THE PURCHASER IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY OR BY EQUITABLE PRINCIPLES RELATING TO ENFORCEABILITY.
SECTION 6.4
GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENT.
NO
APPROVAL, CONSENT, COMPLIANCE, EXEMPTION, AUTHORIZATION, OR OTHER ACTION BY, OR
NOTICE TO, OR FILING WITH, ANY GOVERNMENTAL ENTITY OR ANY OTHER PERSON IN
RESPECT OF ANY REQUIREMENT OF LAW, AND NO LAPSE OF A WAITING PERIOD UNDER A
REQUIREMENT OF LAW, IS NECESSARY OR REQUIRED IN CONNECTION WITH THE EXECUTION,
DELIVERY OR PERFORMANCE BY