the May 2003 Notes and the security
documents relating thereto, the holders of the May 2003 Notes hold a
second-priority security interest in the Common Collateral (as defined in the
Intercreditor Agreement).
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum.
1.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE NOTE
GUARANTORS. THE COMPANY AND EACH OF THE NOTE GUARANTORS REPRESENT AND WARRANT
TO, AND AGREE WITH, THE SEVERAL INITIAL PURCHASERS ON AND AS OF THE DATE HEREOF
AND THE CLOSING DATE (AS DEFINED IN SECTION 3) THAT:
(A)
EACH OF THE PRELIMINARY OFFERING MEMORANDUM AND THE OFFERING MEMORANDUM, AS
OF ITS RESPECTIVE DATE, DID NOT, AND ON THE CLOSING DATE THE OFFERING MEMORANDUM
WILL NOT, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE
STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING; PROVIDED THAT THE COMPANY AND THE NOTE GUARANTORS MAKE NO
REPRESENTATION OR WARRANTY AS TO INFORMATION CONTAINED IN OR OMITTED FROM THE
PRELIMINARY OFFERING MEMORANDUM OR THE OFFERING MEMORANDUM IN RELIANCE UPON AND
IN CONFORMITY WITH WRITTEN INFORMATION RELATING TO THE INITIAL PURCHASERS
FURNISHED TO THE COMPANY BY OR ON BEHALF OF ANY INITIAL PURCHASER SPECIFICALLY
FOR USE THEREIN (THE "INITIAL PURCHASERS' INFORMATION").
(B)
ASSUMING (I) THAT THE NOTES ARE ISSUED, SOLD AND DELIVERED UNDER THE
CIRCUMSTANCES CONTEMPLATED BY THE OFFERING MEMORANDUM AND THIS AGREEMENT,
(II) THE ACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF THE INITIAL
PURCHASERS CONTAINED IN SECTION 2 AND THEIR COMPLIANCE WITH THE AGREEMENTS SET
FORTH THEREIN AND WITH THE TRANSFER PROCEDURES AND RESTRICTIONS DESCRIBED IN THE
OFFERING MEMORANDUM, (III) THAT EACH PURCHASER WITHIN THE UNITED STATES THAT
BUYS NOTES FROM THE INITIAL PURCHASERS IS A QUALIFIED INSTITUTIONAL BUYER AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT, (IV) THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES MADE IN ACCORDANCE WITH THIS AGREEMENT AND THE
OFFERING MEMORANDUM BY PURCHASERS TO WHOM THE INITIAL PURCHASERS INITIALLY
RESELL THE NOTES AND (V) THE RECEIPT BY PURCHASERS TO WHOM THE INITIAL
PURCHASERS INITIALLY RESELL THE NOTES OF A COPY OF THE OFFERING MEMORANDUM
FURNISHED AS CONTEMPLATED BY SECTION 2(E) HEREOF, IT IS NOT NECESSARY, IN
CONNECTION WITH THE ISSUANCE AND SALE OF THE NOTES TO THE INITIAL PURCHASERS AND
THE OFFER, RESALE AND DELIVERY OF THE NOTES BY THE INITIAL PURCHASERS IN THE
MANNER CONTEMPLATED BY THIS AGREEMENT AND THE OFFERING
3
MEMORANDUM, TO REGISTER THE NOTES UNDER THE SECURITIES ACT OR TO QUALIFY THE
INDENTURE UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED (THE "TRUST
INDENTURE ACT").
(C)
THE COMPANY AND EACH OF ITS SUBSIDIARIES HAVE BEEN DULY INCORPORATED AND
ARE VALIDLY EXISTING AS CORPORATIONS OR LIMITED LIABILITY COMPANIES IN GOOD
STANDING UNDER THE LAWS OF THEIR RESPECTIVE JURISDICTIONS OF INCORPORATION,
FORMATION OR ORGANIZATION, ARE DULY QUALIFIED TO DO BUSINESS AND ARE IN GOOD
STANDING AS FOREIGN CORPORATIONS OR