relieved of
all further obligations under this Agreement, without thereby waiving any rights
such Purchaser may have by reason of such failure or such nonfulfillment.
SECTION 4.
CONDITIONS TO
CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser's
satisfaction, prior to or at the Closing, of the following conditions:
SECTION 4.1.
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF EACH COMPANY IN THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS SHALL
BE CORRECT WHEN MADE AND AT THE TIME OF THE CLOSING.
SECTION 4.2.
PERFORMANCE; NO DEFAULT.
EACH COMPANY SHALL HAVE
PERFORMED AND COMPLIED WITH ALL AGREEMENTS AND CONDITIONS CONTAINED IN THIS
AGREEMENT AND THE OTHER NOTE DOCUMENTS REQUIRED TO BE PERFORMED OR COMPLIED WITH
BY IT PRIOR TO OR AT THE CLOSING, AND AFTER GIVING EFFECT TO THE ISSUE AND SALE
OF THE NOTES (AND THE APPLICATION OF THE PROCEEDS THEREOF AS CONTEMPLATED BY
SECTION 5.14) NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING.
SECTION 4.3.
CERTAIN DOCUMENTS.
EACH PURCHASER SHALL HAVE RECEIVED
THE FOLLOWING, EACH DATED THE DATE OF CLOSING UNLESS OTHERWISE SPECIFIED AND IN
FULL FORCE AND EFFECT:
(A)
THE NOTES TO BE ISSUED TO SUCH PURCHASER PURSUANT TO SECTION 2;
(B)
CERTIFICATES OF THE SECRETARY OR AN ASSISTANT SECRETARY OF EACH
COMPANY CERTIFYING (I) THE ORGANIZATIONAL DOCUMENTS OF SUCH COMPANY, (II) THE
RESOLUTIONS OF THE GOVERNING BODY OF SUCH COMPANY APPROVING THE NOTE DOCUMENTS
TO WHICH SUCH COMPANY IS A PARTY AND THE RELATED TRANSACTIONS, (III) ALL OTHER
DOCUMENTS EVIDENCING OTHER NECESSARY CORPORATE ACTION AND GOVERNMENTAL
APPROVALS, IF ANY, WITH RESPECT TO THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS
TO WHICH SUCH COMPANY IS A PARTY, AND (IV) CERTIFYING THE NAMES AND TRUE
SIGNATURES OF THE OFFICERS OF SUCH COMPANY AUTHORIZED TO SIGN THIS AGREEMENT AND
THE OTHER NOTE DOCUMENTS TO WHICH SUCH COMPANY IS A PARTY AND THE OTHER
DOCUMENTS TO BE DELIVERED HEREUNDER ON BEHALF OF SUCH COMPANY;
(C)
CERTIFICATES OF GOOD STANDING AND EXISTENCE FOR EACH COMPANY FROM
THE STATE IN WHICH EACH COMPANY IS ORGANIZED;
(D)
RESULTS OF SEARCHES OF THE UCC RECORDS OF THE SECRETARY OF STATE
(OR OTHER APPLICABLE GOVERNMENTAL AUTHORITY) OF THE JURISDICTION OF ORGANIZATION
OF EACH COMPANY, REFLECTING NO LIENS AGAINST ANY OF THE COLLATERAL AS TO WHICH
PERFECTION OF A LIEN IS ACCOMPLISHED BY THE FILING OF A FINANCING STATEMENT
OTHER THAN PERMITTED LIENS;
(E)
THE INTERCREDITOR AGREEMENT DULY EXECUTED BY THE PURCHASERS, THE
LENDER PARTIES AND EACH COMPANY;
2
(F)
CERTIFICATE(S) OF INSURANCE NAMING THE COLLATERAL AGENT AS LOSS
PAYEE OR ADDITIONAL INSURED EVIDENCING INSURANCE WHICH MEETS THE REQUIREMENTS OF
THIS AGREEMENT AND THE SECURITY DOCUMENTS AND WHICH IS IN AMOUNT, FORM AND
SUBSTANCE AND FROM AN ISSUER SATISFACTORY TO THE PURCHASERS;
(G)
A CERTIFIED COPY OF EACH OF (I) THE CREDIT AGREEMENT, (II) THE
OTHER SECURITY DOCUMENTS, (III) APPROPRIATE FINANCING STATEMENTS NAMING THE
COLLATERAL AGENT AS THE SECURED PARTY AND EACH COMPANY