TO INCUR LIABILITY UNDER THE MULTIEMPLOYER PENSION PLAN AMENDMENTS ACT OF
1980.
5.
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER.
THE PURCHASER HEREBY REPRESENTS AND WARRANTS TO THE COMPANY AS
FOLLOWS (SUCH REPRESENTATIONS AND WARRANTIES DO NOT LESSEN OR OBVIATE THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN THIS AGREEMENT):
5.1
NO SHORTING.
THE PURCHASER OR ANY OF ITS
AFFILIATES AND INVESTMENT PARTNERS HAS NOT, WILL NOT AND WILL NOT CAUSE ANY
PERSON OR ENTITY, TO DIRECTLY ENGAGE IN "SHORT SALES" OF THE COMPANY'S COMMON
STOCK AS LONG AS THE NOTE SHALL BE OUTSTANDING.
5.2
REQUISITE POWER AND AUTHORITY.
THE
PURCHASER HAS ALL NECESSARY POWER AND AUTHORITY UNDER ALL APPLICABLE PROVISIONS
OF LAW TO EXECUTE AND DELIVER THIS AGREEMENT AND THE RELATED AGREEMENTS AND TO
CARRY OUT THEIR PROVISIONS.
ALL CORPORATE ACTION ON THE PURCHASER'S PART
REQUIRED FOR THE LAWFUL EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE RELATED
AGREEMENTS HAVE BEEN OR WILL BE EFFECTIVELY TAKEN PRIOR TO THE CLOSING.
UPON
THEIR EXECUTION AND DELIVERY, THIS AGREEMENT AND THE RELATED AGREEMENTS WILL BE
VALID AND BINDING OBLIGATIONS OF THE PURCHASER, ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS, EXCEPT:
(A)
AS LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS; AND
(B)
AS LIMITED BY GENERAL PRINCIPLES OF EQUITY
THAT RESTRICT THE AVAILABILITY OF EQUITABLE AND LEGAL REMEDIES.
5.3
INVESTMENT REPRESENTATIONS.
THE PURCHASER
UNDERSTANDS THAT THE SECURITIES ARE BEING OFFERED AND SOLD PURSUANT TO AN
EXEMPTION FROM REGISTRATION CONTAINED IN THE SECURITIES ACT BASED IN PART UPON
THE PURCHASER'S REPRESENTATIONS CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THAT THE PURCHASER IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
REGULATION D UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT").
THE PURCHASER CONFIRMS THAT IT HAS RECEIVED OR HAS HAD FULL ACCESS TO
ALL THE INFORMATION IT CONSIDERS NECESSARY OR APPROPRIATE TO MAKE AN INFORMED
INVESTMENT DECISION WITH RESPECT TO THE INTEREST SHARES TO BE ISSUED TO IT UNDER
THIS AGREEMENT, THE NOTE AND THE WARRANT TO BE PURCHASED BY IT UNDER THIS
AGREEMENT AND THE NOTE SHARES AND THE WARRANT SHARES ACQUIRED BY IT UPON THE
CONVERSION OF THE NOTE AND THE EXERCISE OF THE WARRANT, RESPECTIVELY.
THE
PURCHASER FURTHER CONFIRMS THAT IT HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND
RECEIVE ANSWERS FROM THE COMPANY REGARDING THE COMPANY'S AND ITS SUBSIDIARIES'
BUSINESS, MANAGEMENT AND FINANCIAL AFFAIRS AND THE TERMS AND CONDITIONS OF THE
OFFERING, THE NOTE, THE WARRANT AND THE SECURITIES AND TO OBTAIN
14
ADDITIONAL INFORMATION (TO THE EXTENT THE COMPANY POSSESSED SUCH INFORMATION OR
COULD ACQUIRE IT WITHOUT UNREASONABLE EFFORT OR EXPENSE) NECESSARY TO VERIFY ANY
INFORMATION FURNISHED TO THE PURCHASER OR TO WHICH THE PURCHASER HAD ACCESS.
5.4
THE PURCHASER BEARS ECONOMIC RISK.
THE
PURCHASER HAS SUBSTANTIAL EXPERIENCE IN EVALUATING AND INVESTING IN PRIVATE
PLACEMENT TRANSACTIONS OF SECURITIES IN COMPANIES SIMILAR TO THE COMPANY SO THAT
IT IS CAPABLE OF EVALUATING THE MERITS AND RISKS OF ITS INVESTMENT IN THE
COMPANY AND HAS THE