or their counsel, this Agreement and any obligations of Taberna
hereunder, whether as holders of the Original Preferred Securities or as
prospective Holders of the Securities, may be canceled at, or at any time prior
to, the Closing Date by Taberna.
Notice of such cancellation shall be given to
the Company in writing or by telephone and confirmed in writing, or by e-mail or
facsimile.
Each certificate signed by any officer of the Company 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 representation and warranty of the Company and not by such
officer in any individual capacity.
9
4.
Representations and Warranties of the Company.
The Company
represents and warrants to, and agrees with the Taberna, as holders of the
Original Preferred Securities and with the Holders of the Securities, as
follows:
(A)
IT (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 WITH A VIEW TOWARDS THE SALE OR
DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT.
(C)
INTENTIONALLY OMITTED.
(D)
NONE OF THE SECURITIES, THE NEW INDENTURE, OR THE EXCHANGE, IS OR
MAY BE VOID OR VOIDABLE AS AN ACTUAL OR CONSTRUCTIVE FRAUDULENT TRANSFER OR AS A
PREFERENTIAL TRANSFER.
(E)
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 TABERNA, ANY
HOLDER OF THE SECURITIES, TABERNA CAPITAL MANAGEMENT, LLC OR TRUSTEE 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 TABERNA'S EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS IN THIS AGREEMENT.
THE COMPANY ACKNOWLEDGES THAT NONE OF TABERNA,
ANY HOLDERS OF THE SECURITIES, TABERNA CAPITAL MANAGEMENT, LLC OR TRUSTEE OR ANY
OF THEIR AFFILIATES HAS GIVEN IT ANY INVESTMENT ADVICE, CREDIT INFORMATION OR
OPINION ON WHETHER THE EXCHANGE IS PRUDENT.
(F)
IT HAS NOT ENGAGED ANY BROKER, FINDER OR OTHER ENTITY ACTING
UNDER THE AUTHORITY OF IT OR ANY OF ITS AFFILIATES THAT IS ENTITLED TO ANY
BROKER'S COMMISSION OR OTHER FEE IN CONNECTION WITH THE TRANSACTION FOR WHICH
TABERNA, ANY HOLDER, TRUSTEE OR ANY OF THEIR AFFILIATES COULD BE RESPONSIBLE.
(G)
NO INTEREST IN