as
of November 19, 1997 (the "Subordinated Notes Indenture") relating to the
Subordinated Notes pursuant to its Offer and Purchase and Consent Solicitation
Statement dated February 17, 2005 (the "Tender Offer and Consent
Solicitation").
As described in the Offering Memorandum, the proceeds from the
offering of the Securities received by the Company, along with borrowings under
the Company's Loan and Security Agreement, as amended, dated November 20, 2001
(the "Senior Credit Facility") with Wachovia Bank, National Association, as
successor by merger to Congress Financial Corporation, as agent, are to be used
to repurchase the Subordinated Notes tendered in the Tender Offer and Consent
Solicitation and to repay related fees and expenses.
SECTION 1.
Representations and Warranties by the Company.
(a) Representations and Warranties.
The Company represents and warrants to each
Initial Purchaser as of the date hereof and as of Closing Time referred to in
Section 2(b) hereof, and agrees with each Initial Purchaser, as follows:
2
(I)
OFFERING MEMORANDUM.
THE OFFERING MEMORANDUM DOES NOT, AND AT
CLOSING TIME WILL NOT, INCLUDE AN UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING; PROVIDED
THAT THIS REPRESENTATION, WARRANTY AND AGREEMENT SHALL NOT APPLY TO STATEMENTS
IN OR OMISSIONS FROM THE OFFERING MEMORANDUM MADE IN RELIANCE UPON AND IN
CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY ANY INITIAL
PURCHASER THROUGH MERRILL LYNCH EXPRESSLY FOR USE IN THE OFFERING MEMORANDUM.
(II)
INCORPORATED DOCUMENT.
THE OFFERING MEMORANDUM AS DELIVERED FROM
TIME TO TIME SHALL INCORPORATE BY REFERENCE THE FORM 10-K.
THE FORM 10-K AT THE
TIME IT WAS FILED WITH THE COMMISSION COMPLIED IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "1934 ACT")
AND THE RULES AND REGULATIONS OF THE COMMISSION THEREUNDER (THE "1934 ACT
REGULATIONS"), AND, WHEN READ TOGETHER WITH THE OTHER INFORMATION IN THE
OFFERING MEMORANDUM, AT THE TIME THE OFFERING MEMORANDUM WAS ISSUED AND AT
CLOSING TIME, DID NOT AND WILL NOT INCLUDE AN UNTRUE STATEMENT OF A MATERIAL
FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY
TO MAKE THE STATEMENTS THEREIN NOT MISLEADING.
(III)
INDEPENDENT ACCOUNTANTS.
KPMG LLP, WHO HAS EXPRESSED ITS OPINION
WITH RESPECT TO THE FINANCIAL STATEMENTS (INCLUDING THE RELATED NOTES THERETO)
AND SUPPORTING SCHEDULES INCLUDED IN THE OFFERING MEMORANDUM ARE INDEPENDENT
REGISTERED PUBLIC ACCOUNTANTS WITH RESPECT TO THE COMPANY AND ITS SUBSIDIARIES
WITHIN THE MEANING OF REGULATION S-X UNDER THE 1933 ACT.
(IV)
FINANCIAL STATEMENTS.
THE CONSOLIDATED FINANCIAL STATEMENTS,
TOGETHER WITH THE RELATED SCHEDULES AND NOTES, INCLUDED IN THE OFFERING
MEMORANDUM PRESENT FAIRLY THE FINANCIAL POSITION OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES AT THE DATES INDICATED AND THE STATEMENT OF
OPERATIONS, STOCKHOLDERS' EQUITY AND CASH FLOWS OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES FOR THE PERIODS SPECIFIED; SAID FINANCIAL STATEMENTS
HAVE BEEN PREPARED IN CONFORMITY WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
("GAAP") APPLIED