IT HAS NOT MADE ANY OFFERS TO SELL, OR SOLICITATIONS OF ANY
OFFERS TO BUY, ALL OR ANY PORTION OF THE ORIGINAL PREFERRED SECURITIES OR
TABERNA TRANSFERRED RIGHTS IN VIOLATION OF ANY APPLICABLE SECURITIES LAWS.
(M)
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.
(N)
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
18
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 NEW INDENTURE, AND
(III) IT HAS HAD THE OPPORTUNITY TO ASK QUESTIONS OF, AND RECEIVE ANSWERS AND
REQUEST ADDITIONAL INFORMATION FROM, THE COMPANY AND IS AWARE THAT IT MAY BE
REQUIRED TO BEAR THE ECONOMIC RISK OF AN INVESTMENT IN THE SECURITIES.
(O)
IT HAS NOT ENGAGED ANY BROKER, FINDER OR OTHER ENTITY ACTING UNDER
ITS AUTHORITY THAT IS ENTITLED TO ANY BROKER'S COMMISSION OR OTHER FEE IN
CONNECTION WITH THIS AGREEMENT AND THE CONSUMMATION OF TRANSACTIONS CONTEMPLATED
IN THIS AGREEMENT AND THE NEW INDENTURE FOR WHICH THE COMPANY COULD BE
RESPONSIBLE.
(P)
IT (I) IS A SOPHISTICATED ENTITY WITH RESPECT TO THE EXCHANGE,
(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 (III) HAS INDEPENDENTLY AND WITHOUT RELIANCE UPON THE COMPANY 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 THE COMPANY'S EXPRESS REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS IN THE OPERATIVE DOCUMENTS AND THE OTHER
DOCUMENTS DELIVERED BY THE COMPANY IN CONNECTION THEREWITH.
Except as expressly stated in this Agreement, Taberna make no representations or
warranties, express or implied, with respect to the Exchange, the Taberna
Transferred Rights, the Original Preferred Securities, the Existing Indentures,
or any other matter.
6.
Covenants and Agreements of the Company.
The Company agrees with
the Taberna and the Holders as follows:
(A)
THE COMPANY HAS TAKEN ALL ACTION REASONABLY NECESSARY OR
APPROPRIATE TO CAUSE ITS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 4
HEREOF