AS DEBTOR, AND (IV) THE
AIR PRODUCTS APA DOCUMENTS;
(H)
EACH COMPANY SHALL HAVE DELIVERED TO EACH PURCHASER AN OFFICER'S
CERTIFICATE, DATED THE DATE OF THE CLOSING, CERTIFYING THAT THE CONDITIONS
SPECIFIED IN SECTIONS 4.1, 4.2, 4.13, 4.14 AND 4.15 HAVE BEEN FULFILLED;
(I)
THE MOST RECENT FINANCIAL STATEMENTS AND THE CLOSING BALANCE
SHEET, EACH IN FORM AND SUBSTANCE ACCEPTABLE TO THE PURCHASERS;
(J)
ADDITIONAL DOCUMENTS OR CERTIFICATES WITH RESPECT TO LEGAL
MATTERS OR CORPORATE OR OTHER PROCEEDINGS RELATED TO THE TRANSACTIONS
CONTEMPLATED HEREBY AS MAY BE REASONABLY REQUESTED BY SUCH PURCHASER.
SECTION 4.4.
OPINIONS OF COUNSEL.
SUCH PURCHASER SHALL HAVE RECEIVED
OPINIONS IN FORM AND SUBSTANCE SATISFACTORY TO SUCH PURCHASER, DATED THE DATE OF
THE CLOSING (A) FROM HAYNES AND BOONE, LLP, COUNSEL FOR THE COMPANIES, COVERING
THE MATTERS SET FORTH IN EXHIBIT 4.4(A) AND COVERING SUCH OTHER MATTERS INCIDENT
TO THE TRANSACTIONS CONTEMPLATED HEREBY AS SUCH PURCHASER OR ITS COUNSEL MAY
REASONABLY REQUEST (AND EACH COMPANY HEREBY INSTRUCTS ITS COUNSEL TO DELIVER
SUCH OPINION TO THE PURCHASERS), (B) FROM SENN VISCIANO KIRSCHENBAUM P.C.,
SPECIAL COLORADO COUNSEL FOR THE COMPANIES, COVERING SUCH MATTERS INCIDENT TO
THE APPLICABLE MORTGAGE AS SUCH PURCHASER MAY REASONABLY REQUEST, (C) FROM
STINSON MORRISON HECKER LLP, SPECIAL KANSAS COUNSEL FOR THE COMPANIES, COVERING
SUCH MATTERS INCIDENT TO THE APPLICABLE MORTGAGE AS SUCH PURCHASER MAY
REASONABLY REQUEST, AND (D) FROM BAKER BOTTS L.L.P., THE PURCHASERS' SPECIAL
COUNSEL IN CONNECTION WITH SUCH TRANSACTIONS, COVERING SUCH MATTERS INCIDENT TO
SUCH TRANSACTIONS AS SUCH PURCHASER MAY REASONABLY REQUEST.
SECTION 4.5.
PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
ON THE DATE
OF THE CLOSING SUCH PURCHASER'S PURCHASE OF NOTES SHALL (A) BE PERMITTED BY THE
LAWS AND REGULATIONS OF EACH JURISDICTION TO WHICH SUCH PURCHASER IS SUBJECT,
WITHOUT RECOURSE TO PROVISIONS (SUCH AS SECTION 1405(A)(8) OF THE NEW YORK
INSURANCE LAW) PERMITTING LIMITED INVESTMENTS BY INSURANCE COMPANIES WITHOUT
RESTRICTION AS TO THE CHARACTER OF THE PARTICULAR INVESTMENT, (B) NOT VIOLATE
ANY APPLICABLE LAW OR REGULATION (INCLUDING, WITHOUT LIMITATION, REGULATION T, U
OR X OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM) AND (C) NOT
SUBJECT SUCH PURCHASER TO ANY TAX, PENALTY OR LIABILITY UNDER OR PURSUANT TO ANY
APPLICABLE LAW OR REGULATION, WHICH LAW OR REGULATION WAS NOT IN EFFECT ON THE
DATE HEREOF.
IF REQUESTED BY SUCH PURCHASER, SUCH PURCHASER SHALL HAVE RECEIVED
AN OFFICER'S CERTIFICATE CERTIFYING AS TO SUCH MATTERS OF FACT AS SUCH PURCHASER
MAY REASONABLY SPECIFY TO ENABLE SUCH PURCHASER TO DETERMINE WHETHER SUCH
PURCHASE IS SO PERMITTED.
3
SECTION 4.6.
SALE OF OTHER NOTES.
CONTEMPORANEOUSLY WITH THE CLOSING
THE COMPANIES SHALL SELL TO EACH OTHER PURCHASER AND EACH OTHER PURCHASER SHALL
PURCHASE THE NOTES TO BE PURCHASED BY IT AT THE CLOSING AS SPECIFIED IN SCHEDULE
A.
SECTION 4.7.
PAYMENT OF FEES.
THE COMPANIES SHALL HAVE PAID TO
PRUDENTIAL INVESTMENT MANAGEMENT, INC. THE $40,000 STRUCTURING FEE DESCRIBED IN
THE LETTER DATED DECEMBER 3, 2007, AMONG PRUDENTIAL INVESTMENT MANAGEMENT, INC.,
KMG CHEMICALS AND KMG-BERNUTH.
SECTION 4.8.
PAYMENT OF SPECIAL COUNSEL FEES.
WITHOUT LIMITING THE