Exhibit 10.2
EXECUTION VERSION
EXCHANGE AGREEMENT
among
GKK CAPITAL LP
and
TABERNA PREFERRED FUNDING II, LTD.,
TABERNA PREFERRED FUNDING III, LTD.,
TABERNA PREFERRED FUNDING IV, LTD.,
TABERNA PREFERRED FUNDING V, LTD.,
TABERNA PREFERRED FUNDING VII, LTD.
and
TABERNA PREFERRED FUNDING VIII, LTD.
Dated as of January 30, 2009
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of
January 30, 2009 (this “ Agreement ”), is
entered into by and among GKK CAPITAL LP, a Delaware limited
partnership (the “ Company ”) and TABERNA
PREFERRED FUNDING II, LTD. (“ Taberna II ”),
TABERNA PREFERRED FUNDING III, LTD. (“ Taberna III
”), TABERNA PREFERRED FUNDING IV, LTD. (“ Taberna
IV ”), TABERNA PREFERRED FUNDING V, LTD. (“
Taberna V ”), TABERNA PREFERRED FUNDING VII, LTD.
(“ Taberna VII ”) and TABERNA PREFERRED FUNDING
VIII, LTD. (“ Taberna VIII ”, and together with
Taberna II, Taberna III and Taberna IV, Taberna V, and Taberna VII,
collectively, “ Taberna ”).
RECITAL:
A.
Reference is made to (i) that certain Junior Subordinated
Indenture dated as of May 20, 2005 (the “
May Indenture ”), (ii) that certain Junior
Subordinated Indenture dated as of August 9, 2005 (the “
August Indenture ”) and (iii) that certain
Junior Subordinated Indenture dated as of January 27, 2006
(the “ January Indenture ”; and together
with the May Indenture and the August Indenture,
collectively, the “ Existing Indentures ”), each
by and between the Company and The Bank of New York Mellon Trust
Company, National Association (“ BNYM ”) (as
successor to JPMorgan Chase Bank, National Association, as trustee
(the “ Existing Indenture Trustee ”).
B.
Reference is made to (i) that certain Amended and Restated
Trust Agreement dated as of May 20, 2005 (the “
May Trust Agreement ”), (ii) that certain
Amended and Restated Trust Agreement dated as of August 9,
2005 (the “ August Trust Agreement ”) and
(iii) that certain Amended and Restated Trust Agreement dated
as of January 27, 2006 (the “ January Trust
Agreement ”; and together with the May Trust
Agreement and the August Trust Agreement, collectively, the
“ Trust Agreements ”), each by and among the
Company, as depositor, BNYM (successor to JPMorgan Chase Bank,
National Association, as property trustee)(the “ Property
Trustee ”), BNY Mellon Trust of Delaware (as successor to
Chase Bank USA, National Association, as Delaware trustee)(the
“ Delaware Trustee ”), and the respective
administrative trustees named therein.
C.
Gramercy Capital Trust I (“ Trust I ”) is the
holder of the Junior Subordinated Note due 2035 in the original
principal amount of $51,550,000 issued by the Company pursuant to
the May Indenture (“ Subordinated Note I
”).
D.
Gramercy Capital Trust II (“ Trust II ”) is the
holder of the Junior Subordinated Note due 2035 in the original
principal amount of $51,550,000 issued by the Company pursuant to
the August Indenture (“ Subordinated Note II
”).
E.
Gramercy Capital Trust III (“ Trust III ”) is
the holder of the Junior Subordinated Note due 2036 in the original
principal amount of $51,550,000 issued by the Company pursuant to
the January Indenture (“ Subordinated Note III
”; and together with Subordinated Note I and Subordinated
Note II, collectively, the “ Existing Subordinated
Notes ”)
F.
Taberna II and Taberna III are the holders of Preferred Securities
in the original aggregate principal amount of $50,000,000 issued by
Trust I pursuant to the May Trust
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Agreement, copies of which are attached hereto
as Exhibit A-1 (the “ Trust I Preferred
Securities ”).
G.
Taberna III, Taberna IV and Taberna V are the holders of Preferred
Securities in the original aggregate principal amount of
$50,000,000 issued by Trust II pursuant to the August Trust
Agreement, copies of which are attached hereto as
Exhibit A-2 (the “ Trust II Preferred
Securities ”).
H.
Taberna IV, Taberna VII and Taberna VIII are the holders of
Preferred Securities in the original aggregate principal amount of
$50,000,000 issued by Trust III pursuant to the January Trust
Agreement, copies of which are attached hereto as
Exhibit A-3 (the “ Trust III Preferred
Securities; ” and together with the Trust I Preferred
Securities and Trust II Preferred Securities, collectively, the
“ Original Preferred Securities ”).
I.
Simultaneously herewith, the Company and BNYM, as trustee (the
“ New Indenture Trustee ”) have entered into
that certain Junior Subordinated Indenture (the “ New
Indenture ”) pursuant to which Company proposes to issue
One Hundred Fifty Million Dollars ($150,000,000) in aggregate
principal amount of the Junior Subordinated Notes due 2035 of the
Company as follows (collectively, the “ Securities
”):
(i)
Junior Subordinated Note due 2035 in
the original principal amount of $37,500,000 issued by the Company
to Taberna II, a copy of which is attached hereto as
Exhibit B-1 ( “Note 1” );
(ii)
Junior Subordinated Note due 2035 in
the original principal amount of $28,125,000 issued by the Company
to Taberna III, a copy of which is attached hereto as
Exhibit B-2 ( “Note 2” );
(iii)
Junior Subordinated Note due 2035 in
the original principal amount of $24,375,000 issued by the Company
to Taberna IV, a copy of which is attached hereto as
Exhibit B-3 ( “Note 3” );
(iv)
Junior Subordinated Note due 2035 in
the original principal amount of $25,000,000 issued by the Company
to Taberna V, a copy of which is attached hereto as
Exhibit B-4 ( “Note 4” );
(v)
Junior Subordinated Note due 2035 in
the original principal amount of $10,000,000 issued by the Company
to Taberna VII, a copy of which is attached hereto as
Exhibit B-5 ( “Note 5” );
and
(vi)
Junior Subordinated Note due 2035 in
the original principal amount of $25,000,000 issued by the Company
to Taberna VIII, a copy of which is attached hereto as
Exhibit B-6 ( “Note 6” ).
J.
On the terms and subject to the conditions set forth in this
Agreement, the Company and Taberna have agreed to exchange the
Original Preferred Securities for the Securities.
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NOW, THEREFORE, in consideration of
the mutual agreements and subject to the terms and conditions
herein set forth, the parties hereto agree as follows:
1.
Definitions
.
This Agreement, the New Indenture and the Securities are
collectively referred to herein as the “ Operative
Documents .” All other capitalized terms used but
not defined in this Agreement shall have the respective meanings
ascribed thereto in the New Indenture.
“ August Trust
Agreement ” has the meaning set forth in the
Recitals.
“ August Indenture
” has the meaning set forth in the Recitals.
“ Bankruptcy Code
” means the Bankruptcy Reform Act of 1978, 11 U.S.C.
§§101 et seq., as amended.
“ Benefit Plan ”
means an “employee benefit plan” (as defined in ERISA)
that is subject to Title I of ERISA, a “plan” as
defined in Section 4975 of the Code or any entity whose assets
include (for purposes of U.S. Department of Labor Regulations
Section 2510.3-101 or otherwise for purposes of Title I of
ERISA or Section 4975 of the Code) the assets of any such
“employee benefit plan” or
“plan.”
“ BNYM ” has the
meaning set forth in the Recitals.
“ CDO Trustee ”
has the meaning set forth in Section 2(b)(i)
.
“ Code ” means
the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated under it.
“ Closing Date ”
has the meaning set forth in Section 2(b).
“ Closing Room ”
has the meaning set forth in Section 2(b).
“ Company ” has
the meaning set forth in the introductory paragraph
hereof.
“ Company Counsel
” has the meaning set forth in Section 3(b).
“ Commission ”
has the meaning set forth in Section 4(v)
“ Delaware Trustee
” has the meaning set forth in the Recitals.
“ Environmental Law
” has the meaning set forth in Section 4(jj).
“Environmental Laws” shall have the correlative
meaning.
“Equity
Interests” means
with respect to any Person (a) if such Person is a
partnership, the partnership interests (general or limited) in a
partnership, (b) if such Person is a limited liability
company, the membership interests in a limited liability company
and (c) if such Person is a corporation, the shares or stock
interests (both common stock and preferred stock) in a
corporation.
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“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended,
and the rules and regulations promulgated under it.
“ Exchange ” has
the meaning set forth in Section 2(b).
“ Exchange Act ”
has the meaning set forth in Section 4(j).
“ Existing Indentures
” has the meaning set forth in the Recitals.
“ Existing Indenture
Trustee ” has the meaning set forth in the
Recitals.
“ Existing Subordinated
Notes ” has the meaning set forth in the
Recitals.
“ Financial Statements
” has the meaning set forth in Section 4(w).
“ GAAP ” has the
meaning set forth in Section 4(w).
“ Governmental Entities
” has the meaning set forth in Section 4(o).
“ Governmental Licenses
” has the meaning set forth in Section 4(r).
“ Hazardous Materials
” has the meaning set forth in Section 4(jj).
“ Holder ” has
the meaning set forth in the New Indenture.
“ Indemnified
Party ” has the meaning set forth in
Section 8(a). “ Indemnified Parties ”
shall have the correlative meaning.
“ Investment Company
Act ” has the meaning set forth in
Section 4(j).
“ Interim Financial
Statements ” has the meaning set forth in
Section 4(w).
“
January Indenture ” has the meaning set forth in
the Recitals.
“ January Trust
Agreement ” has the meaning set forth in the
Recitals.
“ Lien ” has the
meaning set forth in Section 4(o).
“ Material Adverse
Effect ” means a material adverse effect on the condition
(financial or otherwise), earnings, business, liabilities or assets
of the Company and its Significant Subsidiaries taken as a
whole.
“ Material Adverse
Change ” has the meaning set forth in
Section 3(e)(ii).
“ May Indenture
” has the meaning set forth in the Recitals.
“ May Trust
Agreement ” has the meaning set forth in the
Recitals.
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“ New Indenture ”
has the meaning set forth in the Recitals.
“ New Indenture Trustee
” has the meaning set forth in the Recitals.
“ Note 1 ” has
the meaning set forth in the Recitals.
“ Note 2 ” has
the meaning set forth in the Recitals.
“ Note 3 ” has
the meaning set forth in the Recitals.
“ Note 4 ” has
the meaning set forth in the Recitals.
“ Note 5 ” has
the meaning set forth in the Recitals.
“ Note 6 ” has
the meaning set forth in the Recitals.
“ Original Preferred
Securities ” has the meaning set forth in the
Recitals.
“ Properties ”
has the meaning set forth in Section 4(ii).
“ Property Trustee
” has the meaning set forth in the Recitals.
“ Regulation D ”
has the meaning set forth in Section 4(h).
“ Repayment Event
” has the meaning set forth in Section 4(o).
“ Rule 144A(d)(3)
” has the meaning set forth in Section 4(j).
“ Securities ”
has the meaning set forth in the Recitals.
“ Securities Act
” means the Securities Act of 1933, 15 U.S.C. §§77a
et seq., as amended, and the rules and
regulations promulgated under it.
“ Significant
Subsidiary ” means any Person wherein at least ten
percent (10%) of the Equity Interests is owned, directly or
indirectly, by the Company. “ Significant
Subsidiaries ” means, collectively, each and every
Significant Subsidiary.
“ Subordinated Note I
” has the meaning set forth in the Recitals.
“ Subordinated Note II
” has the meaning set forth in the Recitals.
“ Subordinated Note III
” has the meaning set forth in the Recitals.
“ Taberna ” has
the meaning set forth in the introductory paragraph
hereof.
“ Taberna II ”
has the meaning set forth in the introductory paragraph
hereof.
“ Taberna III ”
has the meaning set forth in the introductory paragraph
hereof.
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“ Taberna IV ”
has the meaning set forth in the introductory paragraph
hereof.
“ Taberna V ” has
the meaning set forth in the introductory paragraph
hereof.
“ Taberna VII ”
has the meaning set forth in the introductory paragraph
hereof.
“ Taberna VII I”
has the meaning set forth in the introductory paragraph
hereof.
“ Taberna Transferred
Rights ” means any and all of Taberna’s right,
title, and interest in, to and under the Original Preferred
Securities, together with the following:
(i)
the Existing Indentures and Trust Agreement;
(ii)
all amounts payable to Taberna under the Original Preferred
Securities, the Existing Indentures and/or the Trust Agreements,
excluding, however, amounts payable on account of interest for the
period from October 30, 2008 through January 29,
2009;
(iii)
all claims (including “claims” as defined in Bankruptcy
Code §101(5)), suits, causes of action, and any other right of
Taberna, whether known or unknown, against the Company or any of
its affiliates (including the Trusts), agents, representatives,
contractors, advisors, or any other entity that in any way is based
upon, arises out of or is related to any of the foregoing,
including all claims (including contract claims, tort claims,
malpractice claims, and claims under any law governing the exchange
of, purchase and sale of, or indentures for, securities), suits,
causes of action, and any other right of Taberna against any
attorney, accountant, financial advisor, or other entity arising
under or in connection with the Original Preferred Securities, the
Existing Indentures, the Trust Agreements or the transactions
related thereto or contemplated thereby;
(iv)
all guarantees and all collateral and security of any kind for or
in respect of the foregoing;
(v)
all cash, securities, or other property, and all setoffs and
recoupments, to be received, applied, or effected by or for the
account of Taberna under the Original Preferred Securities, other
than fees, costs and expenses payable to Taberna hereunder and all
cash, securities, interest, dividends, and other property that may
be exchanged for, or distributed or collected with respect to, any
of the foregoing; and
(vi)
all proceeds of the foregoing.
“ Trust I ” has
the meaning set forth in the Recitals.
“ Trust II ” has
the meaning set forth in the Recitals.
“ Trust III ” has
the meaning set forth in the Recitals.
“ Trust I Preferred
Securities ” has the meaning set forth in the
Recitals.
6
“ Trust II Preferred
Securities ” has the meaning set forth in the
Recitals.
“ Trust III Preferred
Securities ” has the meaning set forth in the
Recitals.
“ Trust Agreements
” has the meaning set forth in the Recitals.
2.
Exchange of Original Preferred
Securities for Securities .
(a)
The Company
agrees to issue the Securities in accordance with the New Indenture
and has requested that Taberna accept such Securities in exchange
for the Original Preferred Securities, and Taberna hereby accepts
such Securities in exchange for the Original Preferred Securities
upon the terms and conditions set forth herein.
(b)
The closing of
the exchange contemplated herein shall occur at the offices of
Nixon Peabody, LLP in New York, New York (the “
Closing Room ”), or such other place
as the parties hereto and BNYM shall agree, at 11:00 a.m. New
York time, on January 30, 2009 or such later date as the
parties may agree (such date and time of delivery the
“ Closing Date
”). The
Company and Taberna hereby agree that the exchange (the
“ Exchange
”) will
occur in accordance with the following requirements:
(i)
Taberna Capital Management, LLC (as collateral manager for each of
the Taberna entities) shall have delivered an issuer order
instructing each trustee (in each such capacity, a “
CDO Trustee ”) under the applicable
indenture pursuant to which such CDO Trustee serves as trustee for
the holders of the Original Preferred Securities to exchange the
Original Preferred Securities for the Securities and to deliver the
Original Preferred Securities to the Property Trustee for
cancellation and reissuance in the name of the Company.
(ii)
The Original Preferred Securities and the Securities shall have
been delivered to the Closing Room, copies of which Original
Preferred Securities and Securities shall have previously been made
available for inspection, if so requested.
(iii)
Company shall have directed the New Indenture Trustee to
authenticate the Securities and deliver them to the applicable CDO
Trustee, as follows: (i) Note 1 to Taberna II, (ii) Note
2 to Taberna III, (iii) Note 3 to Taberna IV, (iv) Note 4
to Taberna V, (v) Note 5 to Taberna VII and (vi) Note 6
to Taberna VIII.
(iv)
New Indenture Trustee shall have authenticated the Securities in
accordance with the terms of the New Indenture and delivered them
as provided above.
(v)
Property Trustee, on behalf of each of the Trusts, shall have
obtained the Original Preferred Securities and shall promptly
thereafter, if requested by the Company, cancel and reissue them in
the name of the Company.
(vi)
Simultaneously with the occurrence of the events described in
subsections (iv) and (v) hereof, (A) each Taberna
entity holding the applicable Original Preferred Securities
irrevocably transfers, assigns, grants and conveys the related
Taberna Transferred Rights to the Company and the Company assumes
all rights and obligations
7
of Taberna with
respect to the Original Preferred Securities and the Taberna
Transferred Rights and (B) each Holder shall be entitled to
all of the rights, title and interest of a Holder of the Securities
under the terms of the Securities, the New Indenture and any other
Operative Documents.
(vii)
the Company shall have paid to the BNYM all of such party’s
legal fees, costs and other expenses in connection with the
Exchange, as well as all other accrued and unpaid fees, costs and
expenses under the Existing Indentures and the Trust Agreements, if
any.
(viii)
The Company shall have paid to the Trustee, for applications upon
the Original Preferred Securities and for distribution to the
applicable Taberna entities holding such Original Preferred
Securities pursuant to the terms of the Existing Indentures, all
accrued interest for the period commencing on the most recent
interest payment date under the Original Preferred Securities and
continuing through and including January 29, 2009,
provided , that the Company and Taberna agree that the
amount of interest payable for such period with respect to the
Original Preferred Securities shall be based upon an interest rate
of one half of one percent (0.5%) per annum.
3.
Conditions Precedent . The obligations of the
parties under this Agreement are subject to the following
conditions precedent:
(a)
The representations and warranties contained herein shall be
accurate as of the date of delivery of the Securities.
(b)
Clifford Chance US LLP, counsel for the Company (the “
Company Counsel ”), shall have
delivered an opinion, dated the Closing Date, addressed to each
Holder and its successors and assigns and to the New Indenture
Trustee, in substantially the form set out in Annex A-1
hereto and the Company shall have furnished to the Holders of the
Securities a certificate signed by the Company’s Chief
Executive Officer, President, an Executive Vice President, Chief
Financial Officer, Treasurer or Assistant Treasurer, dated the
Closing Date, addressed to the Holders of the Securities , in
substantially the form set out in Annex D hereto. In
rendering its opinion, the Company Counsel may rely as to factual
matters upon certificates or other documents furnished by officers,
directors and trustees of the Company or its general partner and by
government officials; provided , however , that
copies of any such certificates or documents are delivered to the
Holders) and by and upon such other documents as such counsel may,
in its reasonable opinion, deem appropriate as a basis for the
Company Counsel’s opinion. The Company Counsel may
specify the jurisdictions in which it is admitted to practice and
that they/it is not admitted to practice in any other jurisdiction
and is not an expert in the law of any other jurisdiction.
Such Company Counsel Opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord
of the ABA Section of Business Law (1991).
(c)
Taberna shall have been furnished the opinion of Nixon Peabody,
LLP, dated as of the Closing Date, addressed to the Holders of the
Securities and their respective
8
successors and assigns and
the New Indenture Trustee, in substantially the form set out in
Annex B hereto.
(d)
The Holders of the Securities shall have received the opinion of
Gardere Wynne Sewell LLP, special counsel for the New Indenture
Trustee, dated as of the Closing Date, addressed to the Holders of
the Securities and their successors and assigns, in substantially
the form set out in Annex C hereto.
(e)
The Company shall have furnished to the Holders of the Securities a
certificate of the Company, signed by the Chief Executive Officer,
President or an Executive Vice President, and Chief Financial
Officer, Treasurer or Assistant Treasurer of the Company, dated as
of the Closing Date, as to (i) and
(ii) below:
(i)
the representations and warranties in this Agreement and the New
Indenture are true and correct on and as of the Closing Date, and
the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the Closing Date; and
(ii)
since the date of the latest Interim Financial Statements, there
has been no material adverse change in the condition (financial or
other), earnings, business or assets of the Company and Significant
Subsidiaries, taken as a whole, whether or not arising from
transactions occurring in the ordinary course of business (a
“ Material Adverse
Change ”).
(f)
Intentionally omitted.
(g)
Prior to the Closing Date, the Company shall have furnished to the
Holders of the Securities and their counsel such further
information, certificates and documents as the Holders of the
Securities or such counsel may reasonably request.
If any of the conditions specified
in this Section 3 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions,
certificates and documents mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and
substance to the Holders of the Securities 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.
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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 the Taberna Transferred Rights is being acquired by
or on behalf of an entity that is, or at any time while the Taberna
Transferred Rights are held thereby will be, one or more Benefit
Plans.
(h)
Neither the Company nor any of its “Affiliates” (as
defined in Rule 501(b) of Regulation D (“
Regulation D ”) under the Securities
Act (as defined below)), nor any person acting on its or their
behalf, has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under
circumstances that would require the registration of any of the
Securities under the Securities Act; provided that the Company does
not make any representations as to any action taken by an
Indemnified Party.
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(i)
Neither the Company nor any of its Affiliates, nor any person
acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of any of the
Securities provided , that the Company does not make any
representations as to any action taken by an Indemnified
Party.
(j)
The Securities (i) are not and have not been listed on a
national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), or quoted on a U.S.
automated inter-dealer quotation system and (ii) are not of an
open-end investment company, unit investment trust or face-amount
certificate company that are, or are required to be, registered
under Section 8 of the Investment Company Act of 1940, as
amended (the “ Investment Company Act ”), and the Securities
otherwise satisfy the eligibility requirements of
Rule 144A(d)(3) promulgated pursuant to the Securities
Act (“ Rule 144A(d)(3) ”).
(k)
Neither the Company nor any of its Affiliates, nor any person
acting on its or their behalf, has engaged, or will engage, in any
“directed selling efforts” within the meaning of
Regulation S under the Securities Act with respect to the
Securities.
(l)
The Company is not, and immediately following consummation of the
transactions contemplated hereby, will not be, an “investment
company” or an entity “controlled” by an
“investment company,” in each case within the meaning
of Section 3(a) of the Investment Company
Act.
(m)
Each of this Agreement and the New Indenture and the consummation
of the transactions contemplated herein and therein have been duly
authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company, and, assuming due
authorization, execution and delivery by Taberna and/or the
Trustee, as applicable, will be a legal, valid and binding
obligations of the Company enforceable against it in accordance
with its terms, subject to applicable bankruptc
