RESULTS
FOR SUCH FISCAL YEAR (OR, IF SUCH 24 HOUR PERIOD ENDS ON A DAY WHICH IS NOT A
TRADING DAY, ON THE NEXT SUCCEEDING TRADING DAY AT THE TIME THE RESULTS WERE
RELEASED). THE BUYER ACKNOWLEDGES THAT THE SELLER HAS NOT GIVEN THE BUYER ANY
INVESTMENT ADVICE OR ANY OTHER CREDIT INFORMATION OR OPINION ON WHETHER THE
PURCHASE OF THE SHARES IS PRUDENT.
3.9
FINANCIAL WHEREWITHAL. THE BUYER PRESENTLY HAS AND WILL HAVE AT
EACH CLOSING ALL FUNDS OR FINANCING IN PLACE NECESSARY TO PAY AND DELIVER TO THE
SELLER THE FIRST CLOSING
6
PURCHASE PRICE OR THE SECOND CLOSING PURCHASE PRICE, AS THE CASE MAY BE, AS
CONTEMPLATED IN THIS AGREEMENT.
3.10
NO BROKERS OR FINDERS. NO BROKER OR FINDER HAS BEEN ENGAGED BY THE
BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, AND NO
COMMISSION, FINDER'S FEES OR OTHER SIMILAR COMPENSATION OR REMUNERATION IS
PAYABLE TO ANY PERSON AS A RESULT OF THE BUYER'S ACTIONS IN CONNECTION WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN.
3.11
SUPPLEMENTAL INDENTURE. THE CONDITIONS OF THE SECOND SUPPLEMENTAL
INDENTURE, DATED AS OF DECEMBER 30, 2005 (THE "SUPPLEMENTAL INDENTURE"), AMONG
THE BUYER, THE GUARANTORS PARTY THERETO AND LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE (THE "TRUSTEE") RELATING TO THE 10% SENIOR NOTES DUE 2013 (THE
"SENIOR NOTES"), BECOMING EFFECTIVE, OPERATIVE, AND BINDING UPON THE TRUSTEE AND
THE HOLDERS OF THE SENIOR NOTES ARE AS SET FORTH IN SECTION 1.04 OF THE
SUPPLEMENTAL INDENTURE AND IN THE OFFER TO PURCHASE (AS DEFINED IN THE
SUPPLEMENTAL INDENTURE) UNDER THE HEADING "CONDITIONS OF THE TENDER OFFER AND
CONSENT SOLICITATION". THE BUYER HAS COMPLIED WITH ALL APPLICABLE LAWS,
RULES AND REGULATIONS IN CONNECTION WITH ITS CONSENT SOLICITATION AND PENDING
TENDER OFFER
(THE "SOLICITATION") RELATED TO THE SENIOR NOTES AND THE EXECUTION
OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL NOT CAUSE OR RESULT IN THE VIOLATION OF ANY LAW, RULE OR REGULATION OF ANY
GOVERNMENTAL BODY IN CONNECTION WITH THE SOLICITATION.
ARTICLE 4
SELLER'S CONDITIONS TO CLOSING
At each Closing, the obligation of the Seller to sell the First Closing Shares
or the Second Closing Shares, as the case may be, to the Buyer is subject to the
fulfillment at such Closing of the following conditions:
4.1
REPRESENTATIONS AND WARRANTIES; COMPLIANCE. THE REPRESENTATIONS
AND WARRANTIES OF THE BUYER CONTAINED IN ARTICLE 3 OF THIS AGREEMENT SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT AND AS OF SUCH CLOSING AS THOUGH
THEN MADE, AND BUYER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL CONDITIONS AND AGREEMENTS REQUIRED BY THIS AGREEMENT TO BE PERFORMED
AND COMPLIED WITH BY IT ON OR PRIOR TO THE APPLICABLE CLOSING DATE.
4.2
LEGAL INVESTMENT. ON THE APPLICABLE CLOSING DATE, THE PURCHASE AND
SALE OF THE FIRST CLOSING SHARES OR THE SECOND CLOSING SHARES, AS THE CASE MAY
BE, SHALL BE PERMITTED BY THE LAWS AND REGULATIONS OF EACH RELEVANT
JURISDICTION.
4.3
NO ACTIONS