of the making of such purchase to satisfaction of the following
conditions:
3.1
DOCUMENTS.
EACH PURCHASER SHALL HAVE
RECEIVED ON OR BEFORE THE CLOSING DATE ALL OF THE FOLLOWING IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO EACH OF THE PURCHASERS:
(A)
THIS AGREEMENT, THE NOTES AND ALL OTHER
SUBORDINATED NOTE DOCUMENTS, EACH DULY EXECUTED WHERE APPROPRIATE AND IN
SUFFICIENT COPIES FOR EACH OF THE PURCHASERS;
(B)
TRUE AND CORRECT COPIES, CERTIFIED AS TO
AUTHENTICITY BY THE COMPANY, OF (I) THE SENIOR FINANCING DOCUMENTS, (II)
DEFINITIVE DOCUMENTATION, IF
2
ANY, IN CONNECTION WITH THE PURCHASE BY OCM OF ANY EQUITY INTEREST IN COMPANY
AND (III) SUCH OTHER DOCUMENTS OR INSTRUMENTS AS MAY BE REASONABLY REQUESTED BY
THE PURCHASERS, INCLUDING, WITHOUT LIMITATION, A COPY OF ANY DEBT INSTRUMENT,
SECURITY AGREEMENT OR OTHER MATERIAL CONTRACT TO WHICH ANY OF THE NOTE PARTIES
MAY BE A PARTY;
(C)
A BUSINESS PLAN FOR FISCAL YEARS 2005
THROUGH 2011 AND A REASONABLY SATISFACTORY WRITTEN ANALYSIS OF THE BUSINESS AND
PROSPECTS OF THE COMPANY AND ITS SUBSIDIARIES FOR THE PERIOD FROM THE CLOSING
DATE THROUGH THE FINAL MATURITY OF THE NOTES;
(D)
A CERTIFICATE OF THE COMPANY, DATED THE
CLOSING DATE, SUBSTANTIALLY IN THE FORM OF EXHIBIT B, SIGNED BY A RESPONSIBLE
OFFICER AND CERTIFYING, AMONG OTHER THINGS, THAT ALL OF THE CONDITIONS CONTAINED
IN ARTICLE III HAVE BEEN SATISFIED ON SUCH DATE;
(E)
THE LEGAL OPINION OF KIRKLAND & ELLIS LLP,
COUNSEL TO COMPANY AND ITS SUBSIDIARIES, SUBSTANTIALLY IN THE FORM OF EXHIBIT C,
COVERING SUCH MATTERS INCIDENT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AS THE PURCHASERS MAY REASONABLY REQUIRE;
(F)
THE FINANCIAL STATEMENTS OF THE COMPANY
AND ITS CONSOLIDATED SUBSIDIARIES, AND THE PROJECTIONS AND STATEMENTS EVIDENCE,
IN EACH CASE FOR THE TWELVE (12) MONTH PERIOD FOR WHICH FINANCIAL STATEMENTS ARE
MOST RECENTLY AVAILABLE, PREPARED TO GIVE EFFECT TO THE INITIAL FUNDING OF LOANS
UNDER THE SENIOR CREDIT AGREEMENT, THE ISSUANCE AND SALE OF THE NOTES AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THE OPERATIVE DOCUMENTS, A
SENIOR DEBT TO ADJUSTED EBITDA RATIO OF NOT MORE THAN 3.05 TO 1.0 AND A TOTAL
DEBT TO ADJUSTED EBITDA RATIO OF NOT MORE THAN 4.20 TO 1.0.
THE PURCHASERS
SHALL HAVE RECEIVED A CERTIFICATE OF RESPONSIBLE OFFICER DEMONSTRATING WITH
SUPPORTING CALCULATIONS IN REASONABLE DETAIL THE SATISFACTION OF THE FOREGOING
REQUIREMENTS.
OCM SHALL NOT HAVE BECOME AWARE OF ANY INFORMATION OR OTHER
MATTER (INCLUDING ANY MATTER RELATING TO FINANCIAL MODELS AND UNDERLYING
ASSUMPTIONS RELATING TO ANY FINANCIAL PROJECTIONS CONCERNING COMPANY AND ITS
SUBSIDIARIES THAT HAVE BEEN MADE AVAILABLE TO ANY PURCHASER BY INVESTOR, COMPANY
OR ANY OF THEIR RESPECTIVE REPRESENTATIVES) AFFECTING COMPANY OR ANY OF ITS
SUBSIDIARIES THAT IS INCONSISTENT IN A MATERIAL AND ADVERSE MANNER WITH ANY
INFORMATION OR OTHER MATTER DISCLOSED TO OCM PRIOR TO THE CLOSING DATE;
(G)
EVIDENCE THAT ALL MATERIAL GOVERNMENTAL AND
THIRD PARTY APPROVALS NECESSARY IN CONNECTION WITH THE TRANSACTIONS AND THE
CONTINUING OPERATIONS OF COMPANY HAVE BEEN OBTAINED AND ARE IN FULL FORCE AND
EFFECT, AND ALL APPLICABLE WAITING