THE INITIAL PURCHASER AS
CONTEMPLATED HEREBY OR FOR THE EXEMPT RESALES, ASSUMING (I) THAT THE PURCHASERS
IN THE EXEMPT RESALES ARE ELIGIBLE PURCHASERS, (II) THE ACCURACY OF THE INITIAL
PURCHASER'S REPRESENTATIONS CONTAINED IN SECTION 7 OF THIS AGREEMENT AND
(III) IF ANY EXEMPT
17
RESALES ARE MADE TO ACCREDITED INVESTORS, THE ACCURACY OF THE REPRESENTATIONS
AND WARRANTIES OF SUCH ACCREDITED INVESTORS CONTAINED IN THE ACCREDITED INVESTOR
LETTERS EXECUTED BY SUCH ACCREDITED INVESTORS.
NO FORM OF GENERAL SOLICITATION
OR GENERAL ADVERTISING (INCLUDING, WITHOUT LIMITATION, AS SUCH TERMS ARE DEFINED
IN REGULATION D UNDER THE ACT) WAS USED BY EITHER OF THE ISSUERS OR ANY OF THEIR
RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES IN CONNECTION
WITH THE OFFER AND SALE OF ANY OF THE NOTES OR IN CONNECTION WITH EXEMPT
RESALES.
NO SECURITIES OF THE SAME CLASS AS THE NOTES HAVE BEEN OFFERED, ISSUED
OR SOLD BY EITHER OF THE ISSUERS OR ANY OF THEIR RESPECTIVE AFFILIATES WITHIN
THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE HEREOF.
(II)
ERISA.
NEITHER OF THE ISSUERS NOR ANY OF
THEIR RESPECTIVE "AFFILIATES" MAINTAINS A PLAN THAT IS INTENDED TO QUALIFY UNDER
SECTION 401(A) OF THE CODE, OR IS A "PARTY IN INTEREST" OR A "DISQUALIFIED
PERSON" WITH RESPECT TO ANY EMPLOYEE BENEFIT PLANS.
NO CONDITION EXISTS OR
EVENT OR TRANSACTION HAS OCCURRED IN CONNECTION WITH ANY EMPLOYEE BENEFIT PLAN
THAT COULD RESULT IN EITHER OF THE ISSUERS OR ANY SUCH "AFFILIATE" INCURRING ANY
LIABILITY, FINE OR PENALTY THAT COULD, SINGLY OR IN THE AGGREGATE, HAVE A
MATERIAL ADVERSE EFFECT.
NEITHER OF THE ISSUERS OR ANY OF THE GUARANTORS NOR
ANY TRADE OR BUSINESS UNDER COMMON CONTROL WITH THE ISSUERS OR THE GUARANTORS
(FOR PURPOSES OF SECTION 414(C) OF THE CODE) MAINTAINS ANY EMPLOYEE PENSION
BENEFIT PLAN THAT IS SUBJECT TO TITLE IV OF THE EMPLOYEE RETIREMENT INCOME ACT
OF 1974, AS AMENDED, OR THE RULES AND REGULATIONS PROMULGATED THEREUNDER
("ERISA").
The terms "employee benefit plan," "employee pension benefit plan," and "party
in interest" shall have the meanings assigned to such terms in Section 3 of
ERISA.
The term "Affiliate" shall have the meaning assigned to such term in
Section 407(d)(7) of ERISA, and the term "disqualified person" shall have the
meaning assigned to such term in section 4975 of the Internal Revenue Code of
1986, as amended, or the rules, regulations and published interpretations
promulgated thereunder (collectively the "Code").
(JJ)
INVESTMENT COMPANY ACT AND OTHER FEDERAL
REGULATIONS.
NEITHER OF THE ISSUERS HAS TAKEN, AND NONE OF THEM WILL TAKE, ANY
ACTION THAT MAY CAUSE THIS AGREEMENT OR THE ISSUANCE OF THE NOTES TO VIOLATE OR
RESULT IN A VIOLATION OF SECTION 7 OF THE EXCHANGE ACT (INCLUDING, WITHOUT
LIMITATION, REGULATION T (12 C.F.R. PART 220), REGULATION U (12 C.F.R. PART 221)
OR REGULATION X (12 C.F.R. PART 224) OF THE BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM).
NEITHER OF THE ISSUERS IS SUBJECT TO REGULATION, OR SHALL
BECOME SUBJECT TO REGULATION UPON THE CONSUMMATION OF THE OFFERING AND SALE OF
THE