MISLEADING IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH SUCH STATEMENTS WERE MADE.
ALL BUDGETS AND FINANCIAL PROJECTIONS DELIVERED TO ANY PURCHASER HAVE BEEN AND
WILL BE PREPARED ON THE BASIS OF THE ASSUMPTIONS BELIEVED BY SPECIFIED COMPANIES
AT THE TIME MADE TO BE REASONABLE IN LIGHT OF THE FACTS AND CIRCUMSTANCES KNOWN
BY MANAGEMENT AT THE TIME MADE.
SUCH BUDGETS AND PROJECTIONS AT THE TIME MADE
WERE BELIEVED BY SPECIFIED COMPANIES TO BE REASONABLE IN LIGHT OF THE FACTS AND
CIRCUMSTANCES KNOWN TO MANAGEMENT AT THE TIME MADE; PROVIDED THAT SPECIFIED
COMPANIES CAN GIVE NO ASSURANCE THAT SUCH BUDGETS AND PROJECTIONS WILL BE
ATTAINED AND ACTUAL RESULTS MAY DIFFER MATERIALLY FROM SUCH BUDGETS OR
PROJECTIONS.
4.23
SENIOR FINANCING DOCUMENTS.
THE SENIOR FINANCING
DOCUMENTS (INCLUDING ALL EXHIBITS, ANNEXES AND SCHEDULES THERETO) DELIVERED OR
DISCLOSED BY THE COMPANY TO THE PURCHASERS PURSUANT TO SECTION 3.1(B) CONSTITUTE
THE ONLY AGREEMENTS RELATED TO THE TRANSACTIONS CONTEMPLATED THEREBY, AND NO
AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS THERETO, AND NO WAIVER OF ANY RIGHTS
THEREUNDER BY THE NOTE PARTIES, NOR OF ANY CONDITION TO THE OBLIGATIONS OF SUCH
PERSONS UNDER ANY THEREOF, HAS BEEN MADE, EXCEPT AS DISCLOSED TO EACH OF THE
PURCHASERS IN WRITING PRIOR TO THE CLOSING.
4.24
PRIVATE OFFERING.
NO NOTE PARTY NOR ANYONE
ACTING ON THE BEHALF OF ANY NOTE PARTY HAS OFFERED THE NOTES OR ANY SIMILAR
SECURITIES FOR SALE TO, OR SOLICITED ANY OFFER TO BUY ANY OF THE SAME FROM, OR
OTHERWISE APPROACHED OR NEGOTIATED IN RESPECT THEREOF WITH, ANY PERSON OTHER
THAN THE INITIAL PURCHASERS AND NOT MORE THAN 25 OTHER INSTITUTIONAL INVESTORS,
EACH OF WHICH HAS BEEN OFFERED THE NOTES AT A PRIVATE SALE FOR INVESTMENT.
NO
NOTE PARTY NOR ANYONE ACTING ON THE BEHALF OF ANY NOTE PARTY HAS TAKEN, OR WILL
TAKE, ANY ACTION THAT WOULD SUBJECT THE ISSUANCE OR SALE OF THE NOTES TO THE
REGISTRATION REQUIREMENTS OF SECTION 5 OF THE SECURITIES ACT.
14
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally for itself only, hereby represents and warrants that:
5.1
SUCH PURCHASER IS ACQUIRING THE NOTES FOR
ITS OWN ACCOUNT (OR FOR THE ACCOUNT OF FUNDS THAT SUCH PURCHASER MANAGES), AND
NOT AS NOMINEE OR AGENT, FOR THE PURPOSE OF INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, WITHOUT PREJUDICE, HOWEVER, TO
EACH PURCHASER'S RIGHT AT ALL TIMES TO SELL OR OTHERWISE DISPOSE OF ALL OR ANY
PART OF SUCH NOTES PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION UNDER THE
SECURITIES ACT OR PURSUANT TO A PLEDGE BY A PURCHASER WHICH IS A FUND OF ALL OR
ANY PORTION OF ITS RIGHTS UNDER THIS AGREEMENT TO ITS TRUSTEE IN SUPPORT OF ITS
OBLIGATIONS TO ITS TRUSTEE; SUBJECT, NEVERTHELESS, TO THE CONDITION THAT THE
DISPOSITION OF THE PROPERTY OF SUCH PURCHASER SHALL AT ALL TIMES BE WITHIN ITS
CONTROL.
5.2
SUCH PURCHASER UNDERSTANDS THAT IT MUST BEAR
THE ECONOMIC RISK OF ITS INVESTMENT FOR