WITH RESPECT TO THE PURCHASE OF THE NOTES
SHALL TAKE PLACE ON APRIL 16, 2007 OR SUCH OTHER DATE MUTUALLY AGREED UPON BY
THE PARTIES HERETO (THE "INITIAL CLOSING DATE").
WITH RESPECT TO THE SALE AND
PURCHASE OF ADDITIONAL NOTES, THE COMPANY, UPON FIVE (5) DAYS NOTICE MAY SET
ADDITIONAL CLOSINGS WITH RESPECT TO ADDITIONAL NOTES TO BE SOLD HEREUNDER (EACH,
AN "ADDITIONAL CLOSING") ON DATES DETERMINED BY THE COMPANY (EACH, AN
"ADDITIONAL CLOSING DATE" AND TOGETHER, THE "ADDITIONAL CLOSING DATES").
INTEREST SHALL BE EARNED ON THE NOTES FROM A CLOSING DATE WITH RESPECT TO THE
NOTES PURCHASED ON THAT CLOSING DATE.
(C)
AT EACH CLOSING OR WITHIN TWO BUSINESS DAYS THEREAFTER, THE
COMPANY SHALL DELIVER TO THE PURCHASER THE NOTES BEING PURCHASED, IN EACH CASE,
DATED AS OF THE RELEVANT CLOSING DATE, AGAINST DELIVERY BY THE PURCHASER TO THE
COMPANY OF THE PURCHASE PRICE THEREFOR.
IN EACH CASE, PAYMENT OF SUCH PURCHASE
PRICE SHALL BE BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT OR
ACCOUNTS PREVIOUSLY DESIGNATED IN WRITING BY THE COMPANY.
ARTICLE III.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASER TO PURCHASE THE NOTES
SECTION 3.1
CONDITIONS TO THE INITIAL CLOSING.
THE OBLIGATION OF
THE PURCHASER TO PURCHASE THE NOTES, TO PAY THE PURCHASE PRICE THEREFOR AT THE
INITIAL CLOSING AND TO PERFORM ANY OBLIGATIONS HEREUNDER SHALL BE SUBJECT TO THE
SATISFACTION OF THE FOLLOWING CONDITIONS ON OR BEFORE THE INITIAL CLOSING DATE,
AS DETERMINED BY, OR WAIVED BY, THE PURCHASER; PROVIDED, HOWEVER, THAT ANY
WAIVER OF A CONDITION SHALL NOT BE DEEMED A WAIVER OF ANY BREACH OF ANY
REPRESENTATION, WARRANTY, AGREEMENT, TERM OR COVENANT OR OF ANY
MISREPRESENTATION BY THE COMPANY.
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY CONTAINED IN ARTICLE IV SHALL BE TRUE, IN ALL MATERIAL
RESPECTS (WITHOUT GIVING EFFECT TO ANY LIMITATION AS TO "MATERIALITY" OR
"MATERIAL ADVERSE EFFECT" SET FORTH THEREIN), AT AND AS OF THE INITIAL CLOSING
DATE.
THERE SHALL EXIST NO DEFAULT OR EVENT OF DEFAULT AT THE TIME OF THE
ISSUANCE OF THE NOTES.
7
(B)
COMPLIANCE WITH THIS AGREEMENT.
THE COMPANY SHALL HAVE PERFORMED
AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF THE AGREEMENTS AND CONDITIONS
SET FORTH OR CONTEMPLATED HEREIN OR IN THE MERGER AGREEMENT THAT ARE REQUIRED TO
BE PERFORMED OR COMPLIED WITH BY THE COMPANY ON OR BEFORE THE INITIAL CLOSING
DATE.
(C)
PURCHASE OF NOTES PERMITTED BY APPLICABLE LAWS.
THE ACQUISITION
OF AND PAYMENT FOR THE NOTES (A) SHALL NOT BE PROHIBITED BY ANY REQUIREMENT OF
LAW, (B) SHALL NOT SUBJECT THE PURCHASER TO ANY PENALTY UNDER OR PURSUANT TO ANY
REQUIREMENT OF LAW, AND (C) SHALL BE PERMITTED BY ALL LAWS TO WHICH ANY
PURCHASER IS SUBJECT.
(D)
CONSENTS AND APPROVALS.
ALL GOVERNMENTAL AND THIRD-PARTY CONSENTS
AND APPROVALS NECESSARY IN CONNECTION WITH THE OFFER, SALE AND ISSUANCE OF THE
NOTES SHALL HAVE BEEN OBTAINED AND REMAIN IN FULL FORCE AND EFFECT AND SHALL BE
SATISFACTORY TO THE PURCHASER; AND NO REQUIREMENT OF LAW SHALL BE