THE COMPANY AS OF THE DATE HEREOF, THE LIENS THAT
RELATE TO SUCH INDEBTEDNESS AND THAT ENCUMBER THE COMPANY'S ASSETS AND THE NAME
OF EACH LENDER THEREOF.
NO HOLDER OF INDEBTEDNESS OF THE COMPANY IS ENTITLED TO
ANY VOTING RIGHTS IN ANY MATTERS VOTED UPON BY THE HOLDERS OF THE COMMON STOCK.
18
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company for itself as follows:
SECTION 5.1
AUTHORIZATION.
THE INVESTOR HAS FULL POWER AND AUTHORITY TO ENTER
INTO AND PERFORM UNDER THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
THIS
AGREEMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF THE
INVESTOR, HAS BEEN DULY EXECUTED AND DELIVERED BY EACH THE INVESTOR, AND IS THE
VALID AND BINDING AGREEMENT OF EACH THE INVESTOR AND IS ENFORCEABLE AGAINST EACH
THE INVESTOR IN ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE
LIMITED BY BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION OR OTHER SIMILAR
LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND TO JUDICIAL
LIMITATIONS ON THE REMEDY OF SPECIFIC ENFORCEMENT AND OTHER EQUITABLE REMEDIES.
SECTION 5.2
PURCHASE ENTIRELY FOR OWN ACCOUNT.
THIS AGREEMENT IS MADE WITH THE
INVESTOR IN RELIANCE UPON THE INVESTOR'S REPRESENTATION TO THE COMPANY, WHICH BY
THE INVESTOR'S EXECUTION OF THIS AGREEMENT THE INVESTOR HEREBY CONFIRMS, THAT
THE PURCHASED SECURITIES WILL BE ACQUIRED FOR INVESTMENT FOR THE INVESTOR'S OWN
ACCOUNT, NOT AS A NOMINEE OR AGENT, AND NOT WITH A VIEW TO THE RESALE OR
DISTRIBUTION OF ANY PART THEREOF, AND THAT THE INVESTOR HAS NO PRESENT INTENTION
OF SELLING, GRANTING ANY PARTICIPATION IN, OR OTHERWISE DISTRIBUTING THE SAME.
BY EXECUTING THIS AGREEMENT, THE INVESTOR FURTHER REPRESENTS THAT THE INVESTOR
DOES NOT HAVE ANY CONTRACT, UNDERTAKING, AGREEMENT OR ARRANGEMENT WITH ANY
THIRD-PARTY TO SELL, TRANSFER OR GRANT PARTICIPATIONS TO SUCH THIRD-PARTY OR TO
ANY THIRD-PERSON, WITH RESPECT TO ANY OF THE PURCHASED SECURITIES.
SECTION 5.3
RELIANCE UPON INVESTOR'S REPRESENTATIONS; RESTRICTIONS ON RESALE.
THE INVESTOR UNDERSTANDS THAT NONE OF THE NOTES OR CONVERSION SHARES HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OR ANY STATE SECURITIES LAWS BY REASON OF
THEIR CONTEMPLATED ISSUANCE IN TRANSACTIONS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO SECTION 4(2) THEREOF OR RULE 505
OR 506 PROMULGATED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, AND THAT THE RELIANCE OF THE COMPANY AND OTHERS UPON THESE EXEMPTIONS IS
PREDICATED IN PART UPON THIS REPRESENTATION BY THE INVESTOR.
THE INVESTOR
FURTHER UNDERSTANDS THAT THE NOTES AND THE CONVERSION SHARES MAY NOT BE
TRANSFERRED OR RESOLD WITHOUT (I) REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR (II) AN EXEMPTION FROM THE REQUIREMENTS OF
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
THE INVESTOR ALSO
UNDERSTANDS THAT ANY CONVERSION SHARES WILL BE ISSUED WITHOUT PRIOR REGISTRATION
THEREOF UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS IN RELIANCE
UPON SECTION 4(2) OF THE SECURITIES ACT AND TRANSACTIONAL EXEMPTIONS FROM
REGISTRATION UNDER APPLICABLE STATE SECURITIES LAWS BASED UPON APPROPRIATE
REPRESENTATIONS OF THE