SUCH INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
SUCH PURCHASER HAS BEEN GIVEN ACCESS TO ALL
INFORMATION WITH RESPECT TO THE COMPANY REQUESTED BY THE PURCHASER AND HAS HAD
ACCESS TO, AND ADEQUATE OPPORTUNITY TO ASK QUESTIONS OF AND REQUEST ADDITIONAL
INFORMATION FROM, OFFICERS AND REPRESENTATIVES OF THE COMPANY CONCERNING THE
COMPANY'S BUSINESS, OPERATIONS AND FINANCIAL CONDITION.
SUCH PURCHASER (I) IS
AN "ACCREDITED INVESTOR" AS
2
THAT TERM IS DEFINED IN REGULATION D UNDER THE SECURITIES ACT AND (II) HAS BEEN
REPRESENTED BY COUNSEL IN THE PURCHASE OF THE NOTES AND HAS BEEN ADVISED WITH
RESPECT TO THE RESTRICTIONS IMPOSED BY STATE AND FEDERAL SECURITIES LAWS WITH
RESPECT TO THE DISPOSITION OF THE NOTES.
4.4.
INDEPENDENT DECISION.
THE PURCHASER HAS INDEPENDENTLY AND WITHOUT
RELIANCE ON THE COMPANY, AND BASED ON SUCH INFORMATION AS THE PURCHASER HAS
DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS AND DECISION TO ENTER INTO THIS
AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY, EXCEPT THAT THE PURCHASER HAS
RELIED UPON THE COMPANY'S EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS MADE
HEREIN.
THE PURCHASER ACKNOWLEDGES THAT THE COMPANY HAS NOT GIVEN THE PURCHASER
ANY INVESTMENT ADVICE, CREDIT INFORMATION OR OPINION ON WHETHER THE PURCHASE OF
THE NOTES IS A PRUDENT INVESTMENT DECISION.
4.5.
BROKERAGE FEES, ETC.
THE PURCHASER REPRESENTS AND WARRANTS TO THE
COMPANY THAT NO BROKER'S, FINDER'S OR PLACEMENT FEE OR COMMISSION WILL BE
PAYABLE TO ANY PERSON ALLEGED TO HAVE BEEN RETAINED BY THE PURCHASER WITH
RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchaser to enter into this Agreement and to purchase
the Notes hereunder, the Company represents and warrants for the benefit of the
Purchaser that, as of the Closing Date (unless otherwise stated, both before and
after giving effect to the issuance of the Notes):
5.1.
ORGANIZATION, GOOD STANDING AND QUALIFICATION.
THE COMPANY IS A
CORPORATION, DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF THE STATE OF
DELAWARE AND HAS ALL REQUISITE POWER AND AUTHORITY TO CONDUCT ITS BUSINESS AS
NOW CONDUCTED.
THE COMPANY IS DULY QUALIFIED AS A FOREIGN ENTITY AND IN GOOD
STANDING IN ALL STATES OR OTHER JURISDICTIONS WHERE THE NATURE AND EXTENT OF THE
BUSINESS TRANSACTED BY IT OR THE OWNERSHIP OF ASSETS MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT FOR THOSE JURISDICTIONS IN WHICH THE FAILURE TO SO QUALIFY
WOULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
CERTIFIED COPIES OF THE GOVERNING DOCUMENTS OF THE COMPANY HAVE BEEN DELIVERED
TO THE PURCHASER AND SUCH COPIES OF THE GOVERNING DOCUMENTS ARE CORRECT AND
COMPLETE.
5.2.
AUTHORIZATION.
THE COMPANY HAS TAKEN ALL NECESSARY CORPORATE
ACTION TO AUTHORIZE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE NOTES
AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
THIS AGREEMENT
CONSTITUTES THE VALID AND LEGALLY BINDING OBLIGATION OF THE COMPANY ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS SUBJECT TO BANKRUPTCY LAWS AND GENERAL PRINCIPLES
OF EQUITY.
5.3.
VALID ISSUANCE OF THE NOTES.
THE NOTES, WHEN ISSUED, SOLD AND