above or
elsewhere in this Agreement shall not be reasonably satisfactory in form and
substance to the Company, this Agreement and any obligations of the Company
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Company.
Notice of such cancellation shall be given to the Company or Taberna,
as applicable, 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 Taberna
or its 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.
4.
Representations and Warranties of
the Company.
The Company represents and warrants to, and agrees with Taberna,
as follows:
(A)
IT (I) IS DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF
ITS JURISDICTION OF ORGANIZATION OR INCORPORATION, AND (II) 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 SUCH TERM IS DEFINED IN
RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT.
WITHOUT CHARACTERIZING
THE PREFERRED SECURITIES OR ANY OF THE TABERNA TRANSFERRED RIGHTS AS A
"SECURITY" WITHIN THE MEANING OF APPLICABLE SECURITIES LAWS, IT IS NOT ACQUIRING
THE PREFERRED SECURITIES OR THE TABERNA TRANSFERRED RIGHTS WITH A VIEW TOWARDS
THE SALE OR DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT.
(C)
NEITHER THE REPLACEMENT COLLATERAL NOR THE EXCHANGE IS OR MAY BE
SUBJECT TO ANY IMPAIRMENT, EXCEPT TO THE EXTENT SET FORTH IN THE OPERATIVE
DOCUMENTS.
THE COMPANY HAS NO CURRENT INTENTION TO INITIATE ANY BANKRUPTCY OR
INSOLVENCY PROCEEDINGS.
THE COMPANY (I) HAS NOT ENTERED INTO THE EXCHANGE OR
ANY OPERATIVE DOCUMENTS WITH THE ACTUAL INTENT TO HINDER, DELAY, OR DEFRAUD ANY
CREDITOR AND (II) RECEIVED REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR ITS
OBLIGATIONS UNDER THE OPERATIVE DOCUMENTS.
(D)
IT (I) IS A SOPHISTICATED ENTITY WITH RESPECT TO MATTERS SUCH AS
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 OR
TABERNA CAPITAL 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, TABERNA CAPITAL OR ANY OF THEIR AFFILIATES
HAS GIVEN IT ANY INVESTMENT ADVICE, CREDIT INFORMATION OR OPINION ON WHETHER THE
EXCHANGE IS PRUDENT.
8
(E)
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 THIS AGREEMENT AND THE CONSUMMATION
OF TRANSACTIONS