WITH A VIEW TOWARDS THE
SALE OR DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT.
(C)
INTENTIONALLY OMITTED.
(D)
NONE OF THE SECURITIES OR THE LETTER OF
CREDIT IS SUBJECT TO ANY LIEN. THE COMPANY HAS RECEIVED REASONABLE CONSIDERATION
IN EXCHANGE FOR ITS OBLIGATIONS UNDER THE OPERATIVE DOCUMENTS.
(E)
EACH OF THE COMPANY AND THE GUARANTOR
(I) IS A SOPHISTICATED ENTITY WITH RESPECT TO THE EXCHANGE AND/OR THE PARENT
GUARANTEE, AS APPLICABLE, (II) HAS SUCH KNOWLEDGE AND EXPERIENCE, AND HAS MADE
INVESTMENTS OF A SIMILAR NATURE, SO AS TO BE AWARE OF THE RISKS AND
UNCERTAINTIES INHERENT IN THE EXCHANGE AND THE PARENT GUARANTEE AND (III) HAS
INDEPENDENTLY AND WITHOUT RELIANCE UPON TABERNA, ANY HOLDER OF THE SECURITIES,
TABERNA CAPITAL MANAGEMENT, LLC OR TRUSTEE OR ANY OF THEIR AFFILIATES, AND BASED
ON SUCH INFORMATION AS IT HAS DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS AND
DECISION TO ENTER INTO THIS AGREEMENT, EXCEPT THAT IT HAS RELIED UPON TABERNA'S
EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS IN THIS
AGREEMENT.
THE COMPANY AND THE GUARANTOR ACKNOWLEDGE THAT NONE OF TABERNA, ANY
HOLDERS OF THE SECURITIES, TABERNA CAPITAL MANAGEMENT, LLC OR TRUSTEE OR ANY OF
THEIR AFFILIATES HAS GIVEN IT ANY INVESTMENT ADVICE, CREDIT INFORMATION OR
OPINION ON WHETHER THE EXCHANGE IS PRUDENT.
(F)
NONE OF THE COMPANY OR THE GUARANTOR HAS
ENGAGED ANY BROKER, FINDER OR OTHER ENTITY ACTING UNDER THE AUTHORITY OF IT OR
ANY OF ITS AFFILIATES THAT IS ENTITLED TO ANY BROKER'S COMMISSION OR OTHER FEE
IN CONNECTION WITH THE TRANSACTION FOR WHICH TABERNA, ANY HOLDER, TRUSTEE OR ANY
OF THEIR AFFILIATES COULD BE RESPONSIBLE.
(G)
NO INTEREST IN THE TABERNA TRANSFERRED
RIGHTS IS BEING ACQUIRED BY OR ON BEHALF OF AN ENTITY THAT IS, OR AT ANY TIME
WHILE THE TABERNA TRANSFERRED RIGHTS ARE HELD THEREBY WILL BE, ONE OR MORE
BENEFIT PLANS.
(H)
NONE OF THE COMPANY OR THE GUARANTOR OR ANY
OF THEIR RESPECTIVE "AFFILIATES" (AS DEFINED IN RULE 501(B) OF REGULATION D
("REGULATION D") UNDER THE SECURITIES
9
ACT (AS DEFINED BELOW)), NOR ANY PERSON ACTING ON ITS OR THEIR BEHALF, HAS,
DIRECTLY OR INDIRECTLY, MADE OFFERS OR SALES OF ANY SECURITY, OR SOLICITED
OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT WOULD REQUIRE THE
REGISTRATION OF ANY OF THE SECURITIES UNDER THE SECURITIES ACT.
(I)
NONE OF THE COMPANY OR THE GUARANTOR OR
ANY OF THEIR RESPECTIVE AFFILIATES, OR ANY PERSON ACTING ON ITS OR THEIR BEHALF,
HAS ENGAGED IN ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING (WITHIN
THE MEANING OF REGULATION D) IN CONNECTION WITH ANY OFFER OR SALE OF ANY OF THE
SECURITIES.
(J)
THE SECURITIES (I) ARE NOT AND HAVE NOT
BEEN LISTED ON A NATIONAL SECURITIES EXCHANGE REGISTERED UNDER SECTION 6 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), OR QUOTED ON A
U.S. AUTOMATED INTER-DEALER QUOTATION SYSTEM AND (II) ARE NOT OF AN OPEN-END
INVESTMENT COMPANY, UNIT INVESTMENT TRUST OR FACE-AMOUNT CERTIFICATE COMPANY
THAT ARE, OR ARE REQUIRED TO BE, REGISTERED UNDER SECTION 8 OF