THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
SECTION 3.18.
FINANCIAL ADVISORS.
EXCEPT AS SET
FORTH ON SCHEDULE 3.18, NO AGENT, BROKER, INVESTMENT BANKER, FINDER, FINANCIAL
ADVISOR OR OTHER PERSON IS OR WILL BE ENTITLED TO ANY
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BROKER'S OR FINDER'S FEE OR ANY OTHER COMMISSION OR SIMILAR FEE AS A RESULT OF
ACTIONS TAKEN BY THE COMPANY OR ITS AFFILIATES, DIRECTLY OR INDIRECTLY, IN
CONNECTION WITH THE CONTEMPLATED TRANSACTIONS.
SECTION 3.19.
NO GENERAL SOLICITATION.
NONE OF THE
COMPANY OR ANY OF ITS "AFFILIATES" (AS DEFINED IN RULE 501(B) OF REGULATION D
UNDER THE SECURITIES ACT ("REGULATION D")), HAS, DIRECTLY OR THROUGH AN AGENT,
ENGAGED IN ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING IN CONNECTION
WITH THE OFFERING OF THE SERIES B-1 SHARES (AS THOSE TERMS ARE USED IN
REGULATION D) UNDER THE SECURITIES ACT OR IN ANY MANNER INVOLVING A PUBLIC
OFFERING WITHIN THE MEANING OF SECTION 4(2) OF THE SECURITIES ACT; AND THE
COMPANY HAS NOT ENTERED INTO ANY CONTRACTUAL ARRANGEMENT WITH RESPECT TO THE
DISTRIBUTION OF THE SERIES B-1 SHARES EXCEPT FOR THIS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT, AND THE COMPANY WILL NOT ENTER INTO ANY SUCH
ARRANGEMENT.
SECTION 3.20.
ENVIRONMENTAL LAWS.
EXCEPT AS SET
FORTH IN SCHEDULE 3.20, EACH OF THE COMPANY AND THE COMPANY SUBSIDIARIES IS IN
COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL LIMITATIONS, RESTRICTIONS,
CONDITIONS, STANDARDS, PROHIBITIONS, REQUIREMENTS, OBLIGATIONS, SCHEDULES AND
TIMETABLES CONTAINED IN ANY APPLICABLE ENVIRONMENTAL LAWS, OR IN ANY PLAN,
ORDER, NOTICE OR DEMAND LETTER ISSUED, ENTERED, PROMULGATED OR APPROVED
THEREUNDER EXCEPT WHERE THE FAILURE TO COMPLY WOULD NOT INDIVIDUALLY OR IN THE
AGGREGATE HAVE A MATERIAL ADVERSE EFFECT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
INITIAL PURCHASER AND THE INVESTORS
SECTION 4.01.
INITIAL PURCHASER REPRESENTATIONS.
(A)
THE INITIAL PURCHASER REPRESENTS AND
WARRANTS TO AND AGREES WITH THE COMPANY AND EACH OF THE INVESTORS THAT IT IS A
REGISTERED BROKER-DEALER AND AN INSTITUTIONAL ACCREDITED INVESTOR, AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, AS THE CASE MAY BE,
WITH SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS IS
NECESSARY IN ORDER TO EVALUATE THE MERITS AND RISKS OF AN INVESTMENT IN THE
SERIES B-1 SHARES, AND (II) IT IS NOT ACQUIRING THE SERIES B-1 SHARES WITH ANY
PRESENT INTENTION OF OFFERING OR SELLING ANY OF THE SERIES B-1 SHARES IN A
TRANSACTION THAT WOULD VIOLATE THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
(B)
THE INITIAL PURCHASER HEREBY REPRESENTS AND
WARRANTS TO THE COMPANY AND EACH OF THE INVESTORS THAT IT (I) HAS NOT SOLICITED
OFFERS FOR, OR OFFERED OR SOLD, THE SERIES B-1 SHARES BY MEANS OF ANY FORM OF
GENERAL SOLICITATION OR GENERAL ADVERTISING OR IN ANY MANNER INVOLVING A PUBLIC
OFFERING WITHIN THE MEANING OF SECTION 4(2) OF THE SECURITIES ACT AND (II) HAS
ONLY SOLICITED OFFERS FOR THE SERIES B-1 SHARES FROM PERSONS WHOM THE INITIAL
PURCHASER REASONABLY BELIEVED TO BE ACCREDITED INVESTORS.