SIGNED BY ITS CHIEF EXECUTIVE OFFICER, PRESIDENT
OR AN EXECUTIVE VICE PRESIDENT, AND CHIEF FINANCIAL OFFICER, TREASURER OR
ASSISTANT TREASURER, DATED AS OF THE CLOSING DATE, AS TO (I) AND (II) BELOW:
(I)
THE REPRESENTATIONS AND WARRANTIES IN
THIS AGREEMENT, THE NEW INDENTURE AND THE PARENT GUARANTEE ARE TRUE AND CORRECT
ON AND AS OF THE CLOSING DATE, AND THE COMPANY AND THE GUARANTOR HAVE COMPLIED
WITH ALL THE AGREEMENTS AND SATISFIED ALL THE CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED AT OR PRIOR TO THE CLOSING DATE; AND
(II)
SINCE THE DATE OF THE LATEST FINANCIAL
STATEMENTS, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE (OTHER THAN ANY MATERIAL
ADVERSE CHANGE DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO THE PASSAGE OF TIME IN
CONNECTION WITH THE EXISTENCE OF ANY DEFAULT UNDER THE CREDIT FACILITIES) IN THE
CONDITION (FINANCIAL OR OTHER), EARNINGS, BUSINESS OR ASSETS OF THE GUARANTOR
AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, WHETHER OR NOT ARISING FROM TRANSACTIONS
OCCURRING IN THE ORDINARY COURSE OF BUSINESS (A "MATERIAL ADVERSE CHANGE").
(F)
ON THE CLOSING DATE, THE COMPANY SHALL
HAVE DELIVERED TO AND IN FAVOR OF THE TRUSTEE, AS BENEFICIARY, AN ORIGINAL,
IRREVOCABLE LETTER OF CREDIT IN THE NOTIONAL AMOUNT OF FIVE MILLION DOLLARS
($5,000,000) (THE "LETTER OF CREDIT") IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO TABERNA CAPITAL MANAGEMENT, LLC AND OTHERWISE IN ACCORDANCE WITH
THE TERMS AND PROVISIONS OF THE NEW INDENTURE.
(G)
PRIOR TO THE CLOSING DATE, THE COMPANY AND
THE GUARANTOR SHALL HAVE FURNISHED TO THE HOLDERS OF THE SECURITIES AND THEIR
COUNSEL SUCH FURTHER INFORMATION, CERTIFICATES AND DOCUMENTS AS THE HOLDERS OF
THE SECURITIES OR SUCH COUNSEL MAY REASONABLY REQUEST.
Each certificate signed by any officer of the Company and/or the Guarantor and
delivered to the Holders of the Securities or the Holders' counsel in connection
with the Operative Documents and the transactions contemplated hereby and
thereby shall be deemed to be a
8
representation and warranty of the Company and/or the Guarantor, as applicable,
and not by such officer in any individual capacity.
4.
Representations and Warranties of the
Company and the Guarantor.
Each of the Company and the Guarantor jointly and
severally, as of the date hereof and as of the Closing Date, represent and
warrant to, and agree with Taberna, as holders of the Original Preferred
Securities and with the Holders of the Securities, as follows:
(A)
EACH OF THE COMPANY AND THE GUARANTOR
(I) IS DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION OR INCORPORATION, (II) IS IN GOOD STANDING UNDER SUCH LAWS AND
(III) HAS FULL POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS.
(B)
IT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501 UNDER THE SECURITIES ACT. WITHOUT CHARACTERIZING THE ORIGINAL PREFERRED
SECURITIES OR ANY OF THE TABERNA TRANSFERRED RIGHTS AS A "SECURITY" WITHIN THE
MEANING OF APPLICABLE SECURITIES LAWS, IT IS NOT ACQUIRING THE ORIGINAL
PREFERRED SECURITIES OR THE TABERNA TRANSFERRED RIGHTS