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 UNDER THE
SECURITIES ACT OF ANY OF THE CAPITAL SECURITIES, THE GUARANTEE OR THE DEBENTURES
(COLLECTIVELY, THE "SECURITIES") OR ANY OTHER SECURITIES TO BE ISSUED, OR WHICH
MAY BE ISSUED, BY THE PURCHASER.
(B)
NEITHER THE COMPANY NOR THE TRUST, NOR ANY OF THEIR AFFILIATES,
NOR ANY PERSON ACTING ON ITS OR THEIR BEHALF
HAS (I) OTHER THAN THE PLACEMENT
AGENTS, OFFERED FOR SALE OR SOLICITED OFFERS TO PURCHASE THE SECURITIES, OR
(II) ENGAGED IN ANY FORM OF OFFERING, GENERAL SOLICITATION OR GENERAL
ADVERTISING (WITHIN THE MEANING OF REGULATION D) IN CONNECTION WITH ANY OFFER OR
SALE OF ANY OF THE SECURITIES.
(C)
THE SECURITIES SATISFY THE ELIGIBILITY REQUIREMENTS OF
RULE 144A(D)(3) UNDER THE SECURITIES ACT.
(D)
NEITHER THE COMPANY NOR THE TRUST IS OR, AFTER GIVING EFFECT TO
THE OFFERING AND SALE OF THE CAPITAL SECURITIES AND THE CONSUMMATION OF THE
TRANSACTIONS DESCRIBED IN THIS AGREEMENT, WILL BE AN "INVESTMENT COMPANY" OR AN
ENTITY "CONTROLLED" BY AN "INVESTMENT COMPANY," IN EACH CASE WITHIN THE MEANING
OF SECTION 3(A) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"INVESTMENT COMPANY ACT"), WITHOUT REGARD TO SECTION 3(C) OF THE INVESTMENT
COMPANY ACT.
(E)
NEITHER THE COMPANY NOR THE TRUST HAS PAID OR AGREED TO PAY TO ANY
PERSON OR ENTITY (OTHER THAN THE PLACEMENT AGENTS) ANY COMPENSATION FOR
SOLICITING ANOTHER TO PURCHASE ANY OF THE SECURITIES.
5.2.
ORGANIZATION, STANDING AND QUALIFICATION OF THE TRUST. THE TRUST
HAS BEEN DULY CREATED AND IS VALIDLY EXISTING IN GOOD STANDING AS A STATUTORY
TRUST UNDER THE DELAWARE STATUTORY TRUST ACT (THE "STATUTORY TRUST ACT") WITH
THE POWER AND AUTHORITY TO OWN PROPERTY AND TO CONDUCT THE BUSINESS IT TRANSACTS
AND PROPOSES TO TRANSACT AND TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THE
OPERATIVE DOCUMENTS.
THE TRUST IS DULY QUALIFIED TO TRANSACT BUSINESS AS A
FOREIGN ENTITY AND IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH SUCH
QUALIFICATION IS NECESSARY, EXCEPT WHERE THE FAILURE TO SO QUALIFY OR BE IN GOOD
STANDING WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE TRUST.
THE TRUST IS
NOT A PARTY TO OR OTHERWISE BOUND BY ANY AGREEMENT OTHER THAN THE OPERATIVE
DOCUMENTS.
THE TRUST IS AND WILL, UNDER CURRENT LAW, BE CLASSIFIED FOR FEDERAL
INCOME TAX PURPOSES AS A GRANTOR TRUST AND NOT AS AN ASSOCIATION TAXABLE AS A
CORPORATION.
5.3.
TRUST AGREEMENT. THE TRUST AGREEMENT HAS BEEN DULY AUTHORIZED BY
THE COMPANY AND, ON THE CLOSING DATE, WILL HAVE BEEN DULY EXECUTED AND DELIVERED
BY THE COMPANY AND THE ADMINISTRATORS OF THE TRUST, AND, ASSUMING DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY THE DELAWARE TRUSTEE AND THE
5
INSTITUTIONAL TRUSTEE, WILL BE A VALID AND BINDING OBLIGATION OF THE COMPANY AND
SUCH ADMINISTRATORS, ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO (A) APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, RECEIVERSHIP,
REORGANIZATION, LIQUIDATION AND OTHER LAWS RELATING TO