ITS
OBLIGATIONS UNDER THIS AGREEMENT OR TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREIN.
(D)
IT IS A "QUALIFIED HOLDER" AS SUCH TERM IS
DEFINED IN SECTION 2(A)(51) OF THE INVESTMENT COMPANY ACT.
(E)
TABERNA III, TABERNA IV AND TABERNA VI ARE
THE LEGAL AND BENEFICIAL OWNERS OF THE APPLICABLE ORIGINAL PREFERRED SECURITIES
AND THE RELATED TABERNA TRANSFERRED RIGHTS AND SHALL DELIVER THE ORIGINAL
PREFERRED SECURITIES FREE AND CLEAR OF ANY LIEN CREATED BY EACH SUCH TABERNA
ENTITY, AS APPLICABLE.
(F)
THERE IS NO ACTION, SUIT OR PROCEEDING
BEFORE OR BY ANY GOVERNMENTAL ENTITY, ARBITRATOR OR COURT, DOMESTIC OR FOREIGN,
NOW PENDING OR, TO ITS KNOWLEDGE, THREATENED AGAINST OR AFFECTING IT, EXCEPT FOR
SUCH ACTIONS, SUITS OR PROCEEDINGS THAT, IF ADVERSELY DETERMINED, WOULD NOT,
SINGLY OR IN THE AGGREGATE, ADVERSELY AFFECT THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THE OPERATIVE DOCUMENTS.
(G)
THE OUTSTANDING PRINCIPAL AMOUNT OF ITS
RESPECTIVE ORIGINAL PREFERRED SECURITIES IS THE FACE AMOUNT AS SET FORTH IN SUCH
ORIGINAL PREFERRED SECURITIES.
(H)
IT IS AWARE THAT THE SECURITIES HAVE NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO "U.S. PERSONS" (AS DEFINED IN REGULATION
S UNDER THE SECURITIES ACT) EXCEPT IN ACCORDANCE WITH RULE 903 OF REGULATION S
UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
(I)
IT IS AN "ACCREDITED INVESTOR," AS SUCH
TERM IS DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT. WITHOUT
CHARACTERIZING THE ORIGINAL PREFERRED SECURITIES OR THE TABERNA TRANSFERRED
RIGHTS AS A "SECURITY" WITHIN THE MEANING OF APPLICABLE SECURITIES LAWS, IT HAS
NOT MADE ANY OFFERS TO SELL, OR SOLICITATIONS OF ANY OFFERS TO BUY, ALL OR ANY
PORTION OF
17
THE ORIGINAL PREFERRED SECURITIES OR TABERNA TRANSFERRED RIGHTS IN VIOLATION OF
ANY APPLICABLE SECURITIES LAWS.
(J)
NEITHER IT NOR ANY OF ITS AFFILIATES,
NOR ANY PERSON ACTING ON ITS OR ITS AFFILIATE'S BEHALF HAS ENGAGED, OR WILL
ENGAGE, ANY FORM OF "GENERAL SOLICITATION OR GENERAL ADVERTISING" (WITHIN THE
MEANING OF REGULATION D UNDER THE SECURITIES ACT) IN CONNECTION WITH ANY OFFER
OR SALE OF THE SECURITIES.
(K)
IT UNDERSTANDS AND ACKNOWLEDGES THAT (I) NO
PUBLIC MARKET EXISTS FOR ANY OF THE SECURITIES AND THAT IT IS UNLIKELY THAT A
PUBLIC MARKET WILL EVER EXIST FOR THE SECURITIES, (II) SUCH HOLDER IS PURCHASING
THE SECURITIES FOR ITS OWN ACCOUNT, FOR INVESTMENT AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF IN VIOLATION OF
THE SECURITIES ACT OR OTHER APPLICABLE SECURITIES LAWS, SUBJECT TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY BE AT ALL TIMES WITHIN
ITS CONTROL AND SUBJECT TO ITS ABILITY TO RESELL SUCH SECURITIES PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
EXEMPTION THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO, AND IT AGREES TO
THE LEGENDS AND TRANSFER RESTRICTIONS APPLICABLE TO THE SECURITIES CONTAINED IN
THE