CAUSE THE LOSS OF SUCH EXEMPTION
5.12.
THE NOTES.
THE NOTES ARE BEING ISSUED AS
ADDITIONAL SECURITIES (AS DEFINED IN THE INDENTURE) UNDER THE INDENTURE, AND THE
COMPANY HAS SATISFIED ALL THE CONDITIONS SET FORTH IN SECTION 2.1(A) OF THE
INDENTURE FOR THE ISSUANCE OF THE NOTES AS ADDITIONAL SECURITIES.
THE NOTES ARE
SECURED BY THE COLLATERAL (AS DEFINED IN THE INDENTURE) PURSUANT TO THE
COLLATERAL DOCUMENTS (AS DEFINED IN THE INDENTURE).
THE NOTES CONSTITUTE NOTE
COMPANY OBLIGATIONS UNDER THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE
INDENTURE).
ARTICLE 6
CLOSING CONDITIONS
6.1
Purchaser's Conditions.
The obligation of
the Purchaser to purchase and pay for the Notes provided for hereunder on the
Closing Date is subject to the satisfaction of the following conditions, each as
of the Closing Date:
6.1.1
REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
AFTER
GIVING EFFECT TO THE ISSUANCE OF THE NOTES AND THE ACQUISITION, ALL
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN THIS AGREEMENT SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, AND THERE SHALL EXIST NO
CONTINUING DEFAULT OR EVENT OF DEFAULT UNDER THE INDENTURE AND NO DEFAULT OR
EVENT OF DEFAULT UNDER ANY CREDIT FACILITY.
6.1.2
DELIVERY OF DOCUMENTS.
THE PURCHASER SHALL HAVE
RECEIVED THE FOLLOWING ITEMS, EACH OF WHICH SHALL BE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE PURCHASER AND, UNLESS OTHERWISE NOTED, DATED AS
OF THE CLOSING DATE:
RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY
AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND
AUTHORIZING THE ISSUANCE AND SALE OF THE NOTES CERTIFIED AS OF THE CLOSING DATE
BY ITS SECRETARY OR AN ASSISTANT SECRETARY AS BEING IN FULL FORCE AND EFFECT.
A COPY OF A CERTIFICATE OF THE SECRETARY OF STATE OF
THE STATE OF DELAWARE, DATED AS OF A RECENT DATE PRIOR TO THE CLOSING DATE AND
LISTING ALL GOVERNING DOCUMENTS OF THE COMPANY ON FILE WITH SUCH SECRETARY,
INCLUDING ANY AMENDMENTS THERETO, AND COPIES OF ALL SUCH GOVERNING DOCUMENTS AND
CERTIFYING THAT THE COMPANY IS DULY ORGANIZED AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF DELAWARE.
.
A CERTIFICATE OF THE COMPANY, SIGNED ON ITS BEHALF BY A
DULY AUTHORIZED OFFICER AND DATED THE CLOSING DATE, CERTIFYING AS TO (I) THE
ABSENCE OF ANY AMENDMENT TO THE GOVERNING DOCUMENTS OF THE COMPANY SINCE THE
DATE OF THE APPLICABLE SECRETARY OF STATE'S CERTIFICATE REFERRED TO IN
SECTION , (II) ITS BYLAWS AS IN EFFECT ON THE CLOSING DATE AND (III) THE
6
COMPLETENESS AND ACCURACY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
THIS AGREEMENT AS OF THE CLOSING DATE, INCLUDING THE ABSENCE OF ANY EVENT
OCCURRING AND CONTINUING, OR RESULTING FROM THE TRANSACTIONS CONTEMPLATED UNDER
THIS AGREEMENT, THAT CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT UNDER THE
INDENTURE.
.
A CERTIFICATE OF THE SECRETARY OR AN ASSISTANT
SECRETARY OF THE COMPANY CERTIFYING THE NAMES AND TRUE SIGNATURES OF THE
OFFICERS OF THE COMPANY EXECUTING THIS AGREEMENT.
.
A LEGAL OPINION OF ROPES & GRAY, LLP, COUNSEL FOR THE
COMPANY,