(EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES SPEAK AS OF
ANOTHER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE
AND CORRECT AS OF SUCH OTHER DATE), AND THE COMPANY SHALL HAVE COMPLIED WITH ALL
COVENANTS AND AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED UNDER THIS AGREEMENT AT OR PRIOR TO THE CLOSING TIME.
(H)
AT THE TIME OF EXECUTION AND DELIVERY OF THIS AGREEMENT, FBR SHALL
HAVE RECEIVED FROM EACH OF THE OFFICERS OF THE COMPANY A WRITTEN AGREEMENT (A
"LOCK-UP AGREEMENT") IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT D.
7.
TERMINATION.
THE OBLIGATIONS OF FBR HEREUNDER SHALL BE SUBJECT
TO TERMINATION IN THE ABSOLUTE DISCRETION OF FBR, AT ANY TIME PRIOR TO THE
CLOSING TIME IF (I) ANY OF THE CONDITIONS SPECIFIED IN SECTION 6 SHALL NOT HAVE
BEEN FULFILLED WHEN AND AS REQUIRED BY THIS AGREEMENT TO BE FULFILLED AND FBR
HAS NOT WAIVED IN WRITING SUCH UNFULFILLED CONDITION, (II) TRADING IN SECURITIES
IN GENERAL ON ANY EXCHANGE OR NATIONAL QUOTATION SYSTEM SHALL HAVE BEEN
SUSPENDED OR MINIMUM PRICES SHALL HAVE BEEN ESTABLISHED ON SUCH EXCHANGE OR
QUOTATION SYSTEM, (III) THERE HAS BEEN A MATERIAL DISRUPTION IN THE SECURITIES
SETTLEMENT, PAYMENT OR CLEARANCE SERVICES IN THE UNITED STATES, (IV) A GENERAL
BANKING MORATORIUM SHALL HAVE BEEN DECLARED EITHER BY THE UNITED STATES OR NEW
YORK STATE AUTHORITIES, OR (V) IF THE UNITED STATES SHALL HAVE DECLARED WAR IN
ACCORDANCE WITH ITS CONSTITUTIONAL PROCESSES OR THERE SHALL HAVE OCCURRED ANY
MATERIAL OUTBREAK OR ESCALATION OF HOSTILITIES OR OTHER NATIONAL OR
INTERNATIONAL CALAMITY OR CRISIS OR CHANGE IN ECONOMIC, POLITICAL OR OTHER
CONDITIONS OF SUCH MAGNITUDE IN ITS EFFECT ON THE FINANCIAL MARKETS OF THE
UNITED STATES AS, IN THE JUDGMENT OF FBR, TO MAKE IT IMPRACTICABLE TO PURCHASE
OR RESELL THE NOTES.
If FBR elects to terminate this Agreement as provided in this Section 7, the
Company shall be notified promptly in writing.
If the sale to FBR of the Resale Notes, as contemplated by this Agreement, is
not carried out by FBR for any reason permitted under this Agreement or if such
sale is not carried out because the Company shall be unable to comply with any
of the terms of this Agreement, (i) the Company shall not be under any
obligation or liability to FBR under this Agreement (except to the extent
provided in Sections 5(h), 5(k) and 8 hereof), and (ii) FBR shall be under no
16
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 8 hereof).
8.
INDEMNITY.
(A)
THE COMPANY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS FBR AND
ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, REPRESENTATIVES AND
AGENTS, AND ANY PERSON WHO CONTROLS FBR WITHIN THE MEANING OF SECTION 15 OF THE
SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT, FROM AND AGAINST ANY LOSS,
EXPENSE, LIABILITY OR CLAIM (INCLUDING THE REASONABLE COST OF INVESTIGATION)
WHICH, JOINTLY OR SEVERALLY, FBR OR