NEW INDENTURE, AND (III) IT HAS HAD THE OPPORTUNITY TO ASK QUESTIONS OF, AND
RECEIVE ANSWERS AND REQUEST ADDITIONAL INFORMATION FROM, THE COMPANY AND THE
GUARANTOR AND IS AWARE THAT IT MAY BE REQUIRED TO BEAR THE ECONOMIC RISK OF AN
INVESTMENT IN THE SECURITIES.
(L)
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.
(M)
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 Indenture,
or any other matter.
6.
Covenants and Agreements of the
Company.
The Company and the Guarantor jointly and severally agree with the
Taberna and the Holders as follows:
(A)
THE COMPANY AND GUARANTOR HAVE TAKEN ALL
ACTION REASONABLY NECESSARY OR APPROPRIATE TO CAUSE THEIR REPRESENTATIONS AND
WARRANTIES CONTAINED IN SECTION 4 HEREOF TO BE TRUE AS OF THE CLOSING DATE, AND
AFTER GIVING EFFECT TO THE EXCHANGE.
(B)
THE COMPANY WILL ARRANGE FOR THE
QUALIFICATION OF THE SECURITIES FOR SALE UNDER THE LAWS OF SUCH JURISDICTIONS AS
THE HOLDERS OF THE SECURITIES MAY DESIGNATE AND WILL
18
MAINTAIN SUCH QUALIFICATIONS IN EFFECT SO LONG AS REQUIRED FOR THE SALE OF THE
SECURITIES.
THE COMPANY WILL PROMPTLY ADVISE THE HOLDERS OF THE SECURITIES OF
THE RECEIPT BY THE COMPANY OF ANY NOTIFICATION WITH RESPECT TO THE SUSPENSION OF
THE QUALIFICATION OF THE SECURITIES FOR SALE IN ANY JURISDICTION OR THE
INITIATION OR THREATENING OF ANY PROCEEDING FOR SUCH PURPOSE.
(C)
INTENTIONALLY OMITTED.
(D)
INTENTIONALLY OMITTED.
(E)
NEITHER THE COMPANY NOR THE GUARANTOR WILL
OR WILL PERMIT ANY OF THEIR RESPECTIVE AFFILIATES OR ANY PERSON ACTING ON ITS OR
THEIR BEHALF TO, DIRECTLY OR INDIRECTLY, MAKE OFFERS OR SALES OF ANY SECURITY,
OR SOLICIT OFFERS TO BUY ANY SECURITY, UNDER CIRCUMSTANCES THAT WOULD REQUIRE
THE REGISTRATION OF ANY OF THE SECURITIES UNDER THE SECURITIES ACT.
(F)
NEITHER THE COMPANY NOR THE GUARANTOR
WILL, OR WILL NOT PERMIT ANY OF THEIR RESPECTIVE AFFILIATES OR ANY PERSON ACTING
ON ITS OR THEIR BEHALF TO, ENGAGE IN (I) ANY FORM OF "GENERAL SOLICITATION OR
GENERAL ADVERTISING" (WITHIN THE MEANING OF REGULATION D),