DELIVERED BY THE NOTEHOLDER AND CONSTITUTE
THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE NOTEHOLDER, ENFORCEABLE AGAINST
NOTEHOLDER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS ENFORCEABILITY
MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER
SIMILAR LAWS AFFECTING THE RIGHTS OF CREDITORS GENERALLY AND BY GENERAL
EQUITABLE PRINCIPLES.
(C)
CONFLICTS.
NEITHER THE EXECUTION AND DELIVERY BY NOTEHOLDER OF
THIS AGREEMENT OR THE FASA AMENDMENT, NOR THE PERFORMANCE OF THE OBLIGATIONS OF
NOTEHOLDER PURSUANT TO THIS AGREEMENT OR THE FASA AMENDMENT WILL REQUIRE ANY
FILING, CONSENT OR APPROVAL UNDER, CONFLICT WITH OR CONSTITUTE A DEFAULT UNDER
(I) ANY LAW, RULE, REGULATION, ORDINANCE OR APPLICABLE CONSTITUTION OR ORDER,
WRIT, INJUNCTION, JUDGMENT, AWARD, RESTRICTION, RULING OR DECREE OF ANY
GOVERNMENTAL ENTITY TO WHICH NOTEHOLDER IS SUBJECT, (II) THE ORGANIZATIONAL
DOCUMENTS OR BY-LAWS OF NOTEHOLDER OR (III) ANY CONTRACT, INSTRUMENT, INDENTURE
OR OTHER AGREEMENT TO WHICH NOTEHOLDER IS SUBJECT.
(D)
BROKERS.
NO PERSON OR ENTITY RETAINED BY NOTEHOLDER IS OR WILL BE
ENTITLED TO ANY COMMISSION OR FINDER'S OR SIMILAR FEE IN CONNECTION WITH THIS
AGREEMENT OR THE FASA AMENDMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR
THEREBY BASED ON ARRANGEMENTS MADE BY NOTEHOLDER.
(E)
DECISION TO HAVE COMPANY REDEEM THE NOTES.
THE NOTEHOLDER IS
SOPHISTICATED IN FINANCIAL MATTERS AND IS ABLE TO EVALUATE THE MERITS OF
ENTERING INTO THIS AGREEMENT.
THE NOTEHOLDER HAS INDEPENDENTLY AND WITHOUT
RELIANCE UPON THE COMPANY OR ANY OF THE COMPANY'S OFFICERS, DIRECTORS OR
AFFILIATES, AND BASED ON SUCH INFORMATION AS THE
[**] Confidential treatment requested for redacted portion; redacted portion has
been filed separately with the Commission.
3
NOTEHOLDER HAS DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS OF THE VALUE OF THE
NOTES AND WHETHER TO ENTER INTO THIS AGREEMENT AND CONVEY THE NOTES TO THE
COMPANY FOR REDEMPTION ON THE TERMS SET FORTH HEREIN.
THE NOTEHOLDER
ACKNOWLEDGES THAT NEITHER THE COMPANY NOR ANY OF THE COMPANY'S OFFICERS,
DIRECTORS OR AFFILIATES HAS GIVEN THE NOTEHOLDER ANY INVESTMENT ADVICE OR
OPINION ON WHETHER THE SALE OF THE NOTES IS PRUDENT.
THE NOTEHOLDER HAS BEEN
GIVEN THE OPPORTUNITY TO OBTAIN INFORMATION REGARDING THE BUSINESS AND AFFAIRS
OF THE COMPANY; THE NOTEHOLDER'S REQUESTS TO DISCUSS SUCH INFORMATION AND TO
OBTAIN ADDITIONAL INFORMATION HAVE BEEN RESPONDED TO ITS SATISFACTION; AND, IN
THE NOTEHOLDER'S JUDGMENT, IT HAS SUFFICIENT INFORMATION TO MAKE AN INFORMED
DECISION REGARDING THE VALUE OF THE NOTES AND WHETHER TO SELL THE NOTES TO THE
COMPANY ON THE TERMS SET FORTH HEREIN.
THE NOTEHOLDER RECOGNIZES THAT THE
COMPANY HAS MORE DETAILED KNOWLEDGE OF ITS OWN FINANCIAL AFFAIRS AND IS SEEKING
TO IMPROVE ITS FINANCIAL POSITION THROUGH THE PURCHASE OF THE NOTES.
[**]
THE
NOTEHOLDER ACKNOWLEDGES AND AGREES THAT THE PURCHASE PRICE IS THE FULL AMOUNT
PAYABLE WITH RESPECT TO THE NOTES AND THAT NO FURTHER AMOUNTS ARE DUE UNDER THE
NOTES EVEN IN THE EVENT THAT ONE OF THE TRANSACTIONS REFERENCED IN THE PRIOR
SENTENCE WERE TO OCCUR.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Noteholder, as of the date