ADVERSELY AFFECT THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THE OPERATIVE DOCUMENTS OR HAVE A MATERIAL ADVERSE EFFECT; AND
THE AGGREGATE OF ALL PENDING LEGAL OR GOVERNMENTAL PROCEEDINGS TO WHICH THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR OF WHICH ANY OF THEIR
RESPECTIVE PROPERTIES OR ASSETS IS SUBJECT, INCLUDING ORDINARY ROUTINE
LITIGATION INCIDENTAL TO THE BUSINESS, ARE NOT EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT.
(O)
THE INFORMATION PROVIDED BY THE COMPANY PURSUANT TO THE OPERATIVE
DOCUMENTS DOES NOT, AS OF THE DATE HEREOF, CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY TO MAKE THE
STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING.
10
(P)
EXCEPT TO THE EXTENT OTHERWISE LIMITED BY,
QUALIFIED AND/OR SET FORTH IN THE OPERATIVE DOCUMENTS AND SUBJECT TO THE
PERMITTED LIENS, THE COMPANY (I) IS THE LEGAL, RECORD, AND BENEFICIAL OWNER OF,
AND HAS GOOD AND MARKETABLE TITLE, IF AND AS APPLICABLE, TO THE REPLACEMENT
COLLATERAL OTHER THAN THE ITEMS INCLUDED AS OTHER DOCUMENTS DESCRIBED FREE AND
CLEAR OF, AND SUBJECT TO NO, PLEDGES, SECURITY INTERESTS, CHARGES, OPTIONS,
RESTRICTIONS, ENCUMBRANCES OR OTHER LIENS, (II) HAS THE LEGAL CAPACITY TO
EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND TO
TRANSFER ITS INTEREST IN ALL OF THE REPLACEMENT COLLATERAL OF WHICH IT IS THE
LEGAL OR BENEFICIAL OWNER PURSUANT TO THIS AGREEMENT, AND (III) HAS NOT ASSIGNED
OR OTHERWISE TRANSFERRED THE REPLACEMENT COLLATERAL.
Except as expressly stated in this Agreement, the Company makes no
representations or warranties, express or implied, with respect to the Exchange,
the Taberna Transferred Rights, the Preferred Securities, the Indenture, the
Operative Documents or any other matter.
5.
Representations and Warranties of
Taberna.
Taberna represents and warrants to, and agrees with, the Company as
follows:
(A)
IT IS A COMPANY DULY FORMED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION IN WHICH IT IS
ORGANIZED WITH ALL REQUISITE (I) POWER AND AUTHORITY TO EXECUTE, DELIVER AND
PERFORM ITS OBLIGATIONS UNDER THE OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY, TO
MAKE THE REPRESENTATIONS AND WARRANTIES SPECIFIED HEREIN AND THEREIN AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED IN THE OPERATIVE DOCUMENTS.
(B)
THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN HAS BEEN DULY AUTHORIZED BY IT AND, ON THE
CLOSING DATE, WILL HAVE BEEN DULY EXECUTED AND DELIVERED BY IT AND, ASSUMING DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY THE COMPANY OF THE OPERATIVE DOCUMENTS
TO WHICH IT IS A PARTY, WILL BE A LEGAL, VALID AND BINDING OBLIGATION OF
TABERNA, ENFORCEABLE AGAINST TABERNA IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
APPLICABLE BANKRUPTCY, INSOLVENCY AND SIMILAR LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY.
(C)
NO FILING WITH, OR AUTHORIZATION, APPROVAL,
CONSENT, LICENSE, ORDER REGISTRATION, QUALIFICATION OR DECREE OF, ANY
GOVERNMENTAL ENTITY OR ANY OTHER PERSON, OTHER THAN THOSE THAT HAVE BEEN MADE OR
OBTAINED, IS NECESSARY OR REQUIRED FOR THE PERFORMANCE BY TABERNA