GOVERNMENTAL APPROVAL NECESSARY.
ASSUMING THE TRUTH AND
ACCURACY OF THE PURCHASERS' REPRESENTATIONS SET FORTH IN ARTICLE 4 OF THIS
AGREEMENT, NO CONSENT BY, APPROVAL OF, GIVING OF NOTICE TO, REGISTRATION WITH,
OR TAKING OF ANY OTHER ACTION WITH RESPECT TO OR BY ANY FEDERAL, STATE, OR LOCAL
GOVERNMENTAL AUTHORITY OR ORGANIZATION IS REQUIRED FOR ANY OF THE COMPANY'S
EXECUTION, DELIVERY, OR PERFORMANCE OF THIS AGREEMENT OR THE ISSUANCE OF THE
NOTES AND THE EXECUTION AND DELIVERY OF THE SUBSIDIARY GUARANTY BY THE
SUBSIDIARY GUARANTORS.
5.11.
PRIVATE PLACEMENT.
ASSUMING THE TRUTH AND ACCURACY OF THE
PURCHASERS' REPRESENTATIONS SET FORTH IN ARTICLE 4 OF THIS AGREEMENT, THE OFFER,
SALE AND ISSUANCE OF THE NOTES AS CONTEMPLATED BY THIS AGREEMENT IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NEITHER THE COMPANY NOR
ANY AUTHORIZED AGENT ACTING ON BEHALF OF IT WILL TAKE ANY ACTION HEREAFTER THAT
WOULD 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 each 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.
EACH PURCHASER SHALL HAVE RECEIVED THE
FOLLOWING ITEMS, EACH OF WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO SUCH 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
6
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,