THE CONSENTING HOLDERS OR ANY OF THEIR
RESPECTIVE SUBSIDIARIES OR AFFILIATES FROM ACQUIRING ADDITIONAL OLD NOTES.
HOWEVER, ANY SUCH ADDITIONAL OLD NOTES ACQUIRED BY A CONSENTING HOLDER OR ANY OF
THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES SHALL
2
AUTOMATICALLY BE DEEMED TO BE RELEVANT OWNERSHIPS AND SUBJECT TO THE TERMS OF
THIS AGREEMENT.
UPON THE REQUEST OF POAMI, EACH CONSENTING HOLDER SHALL PROVIDE
AN ACCURATE AND CURRENT WRITTEN LIST OF THE RELEVANT OWNERSHIPS HELD BY SUCH
CONSENTING HOLDER, AND IN ANY EVENT SHALL PROVIDE SUCH WRITTEN LIST OF THE
RELEVANT OWNERSHIPS ON THE SECOND BUSINESS DAY PRIOR TO THE EXPECTED
COMMENCEMENT OF THE EXCHANGE OFFER AND CONSENT SOLICITATION.
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
EACH OF THE CONSENTING
HOLDERS AND POAMI REPRESENTS AND WARRANTS TO ONE ANOTHER THAT THE FOLLOWING
STATEMENTS ARE TRUE, CORRECT AND COMPLETE AS OF THE DATE HEREOF:
(A)
POWER AND AUTHORITY.
IT HAS ALL REQUISITE POWER AND AUTHORITY
(INCLUDING, BUT NOT LIMITED TO CORPORATE, PARTNERSHIP OR LIMITED LIABILITY
COMPANY POWER AND AUTHORITY) TO ENTER INTO THIS AGREEMENT, TO CARRY OUT THE
TRANSACTIONS CONTEMPLATED HEREBY AND TO PERFORM ITS OBLIGATIONS HEREUNDER.
(B)
AUTHORIZATION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE, PARTNERSHIP OR LIMITED LIABILITY COMPANY ACTION ON ITS
PART.
(C)
NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT DOES NOT AND SHALL NOT: (I) VIOLATE ANY PROVISION OF LAW, RULE OR
REGULATION APPLICABLE TO IT OR ANY OF ITS SUBSIDIARIES, (II) VIOLATE ITS
CERTIFICATE OR ARTICLES OF INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL
DOCUMENTS OR THOSE OF ANY OF ITS SUBSIDIARIES; OR (III) CONFLICT WITH, RESULT IN
A BREACH OF OR CONSTITUTE (WITH DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT
UNDER ANY MATERIAL CONTRACTUAL OBLIGATION TO WHICH IT OR ANY OF ITS SUBSIDIARIES
IS A PARTY.
(D)
GOVERNMENTAL CONSENTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY
IT OF THIS AGREEMENT DO NOT AND SHALL NOT REQUIRE ANY REGISTRATION OR FILING
WITH, CONSENT OR APPROVAL OF, OR NOTICE TO, OR OTHER ACTION TO, WITH OR BY, ANY
FEDERAL, STATE OR OTHER GOVERNMENTAL AUTHORITY OR REGULATORY BODY.
(E)
BINDING OBLIGATION.
THIS AGREEMENT IS A LEGALLY VALID AND BINDING
OBLIGATION, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
SECTION 6.
ACCREDITED INVESTORS.
EACH OF THE CONSENTING HOLDERS
UNDERSTANDS AND ACKNOWLEDGES THAT THE NEW NOTES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE
SECURITIES LAW, THE NEW NOTES ARE BEING OFFERED FOR EXCHANGE IN TRANSACTIONS NOT
REQUIRING REGISTRATION UNDER THE SECURITIES ACT OR ANY OTHER SECURITIES LAWS,
AND NONE OF THE NEW NOTES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES LAW, PURSUANT TO AN EXEMPTION THEREFROM OR IN A
TRANSACTION NOT SUBJECT THERETO.
EACH OF THE CONSENTING HOLDERS HEREBY FURTHER
REPRESENTS, WARRANTS AND ACKNOWLEDGES THAT (I) IT IS AN "ACCREDITED INVESTOR" AS
SUCH TERM IS DEFINED IN REGULATION D OF THE