AUTHORITY.
THE LENDER IS AN
ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF
THE JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE OR PARTNERSHIP
POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THE APPLICABLE TRANSACTION DOCUMENTS AND
14
otherwise to carry out its obligations thereunder. The execution, delivery and
performance by the Lender of the transactions contemplated by this Agreement has
been duly authorized by all necessary corporate or, if the Lender is not a
corporation, such partnership, limited liability Borrower or other applicable
like action, on the part of the Lender.
Each of this Agreement and the
Registration Rights Agreement has been duly executed by the Lender, and when
delivered by the Lender in accordance with terms hereof, will constitute the
valid and legally binding obligation of the Lender, enforceable against it in
accordance with its terms.
(B)
INVESTMENT INTENT.
THE LENDER IS ACQUIRING
THE SECURITIES AS PRINCIPAL FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES ONLY AND
NOT WITH A VIEW TO OR FOR DISTRIBUTING OR RESELLING SUCH SECURITIES OR ANY PART
THEREOF, WITHOUT PREJUDICE, HOWEVER, TO THE LENDER'S RIGHT AT ALL TIMES TO SELL
OR OTHERWISE DISPOSE OF ALL OR ANY PART OF SUCH SECURITIES IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
SUBJECT TO THE IMMEDIATELY
PRECEDING SENTENCE, NOTHING CONTAINED HEREIN SHALL BE DEEMED A REPRESENTATION OR
WARRANTY BY THE LENDER TO HOLD THE SECURITIES FOR ANY PERIOD OF TIME.
THE
LENDER IS ACQUIRING THE SECURITIES HEREUNDER IN THE ORDINARY COURSE OF ITS
BUSINESS. THE LENDER DOES NOT HAVE ANY AGREEMENT OR UNDERSTANDING, DIRECTLY OR
INDIRECTLY, WITH ANY PERSON TO DISTRIBUTE ANY OF THE SECURITIES.
(C)
LENDER STATUS.
AT THE TIME THE LENDER WAS
OFFERED THE SECURITIES, IT WAS, AND AT THE DATE HEREOF AND AS OF THE CLOSING
DATE AND THE ADDITIONAL CLOSING DATE (IF ANY), IT IS, AND ON EACH DATE ON WHICH
IT EXERCISES THE WARRANTS IT WILL BE, AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(A) UNDER THE SECURITIES ACT.
THE LENDER IS NOT A REGISTERED
BROKER-DEALER UNDER SECTION 15 OF THE EXCHANGE ACT.
(D)
GENERAL SOLICITATION.
THE LENDER IS NOT
PURCHASING THE SECURITIES AS A RESULT OF ANY ADVERTISEMENT, ARTICLE, NOTICE OR
OTHER COMMUNICATION REGARDING THE SECURITIES PUBLISHED IN ANY NEWSPAPER,
MAGAZINE OR SIMILAR MEDIA OR BROADCAST OVER TELEVISION OR RADIO OR PRESENTED AT
ANY SEMINAR OR ANY OTHER GENERAL SOLICITATION OR GENERAL ADVERTISEMENT.
(E)
ACCESS TO INFORMATION.
THE LENDER
ACKNOWLEDGES THAT IT HAS REVIEWED THE DISCLOSURE MATERIALS AND HAS BEEN AFFORDED
(I) THE OPPORTUNITY TO ASK SUCH QUESTIONS AS IT HAS DEEMED NECESSARY OF, AND TO
RECEIVE ANSWERS FROM, REPRESENTATIVES OF THE BORROWER CONCERNING THE TERMS AND
CONDITIONS OF THE OFFERING OF THE SECURITIES AND THE MERITS AND RISKS OF
INVESTING IN THE SECURITIES; (II) ACCESS TO INFORMATION ABOUT THE BORROWER AND
THE SUBSIDIARIES AND THEIR RESPECTIVE FINANCIAL CONDITION, RESULTS OF
OPERATIONS, BUSINESS, PROPERTIES, MANAGEMENT AND PROSPECTS SUFFICIENT TO ENABLE
IT TO EVALUATE ITS INVESTMENT; AND (III) THE OPPORTUNITY