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 the 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.
THE PURCHASER SHALL HAVE RECEIVED THE
FOLLOWING ITEMS, EACH OF WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE 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 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, SIGNED ON ITS BEHALF BY A DULY
AUTHORIZED OFFICER AND DATED THE CLOSING DATE, CERTIFYING AS TO (I) THE ABSENCE
OF ANY AMENDMENT TO THE GOVERNING DOCUMENTS OF THE COMPANY SINCE THE DATE OF THE
APPLICABLE SECRETARY OF STATE'S CERTIFICATE REFERRED TO IN SECTION ,
(II) ITS BYLAWS AS IN EFFECT ON THE CLOSING DATE AND (III) THE COMPLETENESS AND
ACCURACY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AS OF
THE CLOSING DATE, INCLUDING THE ABSENCE OF ANY EVENT OCCURRING AND CONTINUING,
OR RESULTING FROM THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, THAT
CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT UNDER THE INDENTURE.
6
.
A CERTIFICATE OF THE SECRETARY OR AN ASSISTANT SECRETARY OF THE
COMPANY CERTIFYING THE NAMES AND TRUE SIGNATURES OF THE OFFICERS OF THE COMPANY
EXECUTING THIS AGREEMENT.
.
A LEGAL OPINION OF ROPES & GRAY, LLP, COUNSEL FOR THE COMPANY,
ADDRESSED TO THE PURCHASER IN SUBSTANTIALLY THE FORM ATTACHED AS EXHIBIT B.
.