LIKELY SERVE AS THE BASIS
FOR ANY SUCH LITIGATION.
THERE ARE, AND WITHIN THE PAST FIVE YEARS HAVE BEEN,
NO OUTSTANDING JUDGMENTS, DECREES, INJUNCTIONS, STIPULATIONS OR ORDERS AGAINST
OR RELATING TO SUCH PARTY.
THERE ARE NO CONSENT DECREES OR SIMILAR ARRANGEMENTS ENTERED INTO WITH A
GOVERNMENTAL AUTHORITY OR OTHER PERSON BY, OR RELATING TO, SUCH PARTY OR SUCH
PARTY'S BUSINESS THAT ARE STILL IN EFFECT OR WERE IN EFFECT WITHIN THE PAST FIVE
YEARS.
2.
REPRESENTATIONS AND WARRANTIES OF DCM.
DCM REPRESENTS AND WARRANTS TO INVESTOR AS FOLLOWS:
(A)
ELIGIBILITY.
DCM IS NOT INELIGIBLE
(WHETHER BY VIRTUE OF ITS OWN CONDUCT, ACTS OR OMISSIONS OR BY VIRTUE OF THE
CONDUCT, ACTS OR OMISSIONS OF DFR OR THE DFR AFFILIATES) UNDER SECTION 9(A) OR
9(B) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "1940 ACT") TO SERVE
AS AN INVESTMENT ADVISER (OR IN ANY OTHER CAPACITY CONTEMPLATED BY THE 1940 ACT)
TO A REGISTERED INVESTMENT COMPANY.
NEITHER DCM NOR ANY "PERSON ASSOCIATED WITH
AN INVESTMENT ADVISER" (AS DEFINED IN THE INVESTMENT ADVISERS ACT OF 1940, AS
AMENDED (THE "ADVISERS ACT")) WITH RESPECT TO DCM IS INELIGIBLE PURSUANT TO
SECTION 203 OF THE ADVISERS ACT TO SERVE AS AN INVESTMENT ADVISER OR AS A PERSON
ASSOCIATED WITH AN INVESTMENT ADVISER, OR PURSUANT TO RULE 206(4)-3 UNDER THE
ADVISERS ACT TO SERVE AS A SOLICITOR, AND HAS NOT BEEN THE SUBJECT OF ANY LEGAL
OR DISCIPLINARY EVENT THAT MUST BE DISCLOSED TO CLIENTS PURSUANT TO
RULE 206(4)-4 PROMULGATED UNDER THE ADVISERS ACT. NEITHER DCM NOR ANY "PERSON
ASSOCIATED WITH AN INVESTMENT ADVISER" WITH RESPECT TO DCM AS CONTEMPLATED ABOVE
IS OTHERWISE INELIGIBLE UNDER ANY OTHER APPLICABLE LAW FROM PROVIDING INVESTMENT
MANAGEMENT OR ADVISORY SERVICES (OR ANY OTHER SERVICES PROVIDED BY DCM).
THERE
IS NO JUDICIAL OR ADMINISTRATIVE ACTION, SUIT, PROCEEDING, INVESTIGATION OR
OTHER LITIGATION, PENDING OR, TO DCM'S KNOWLEDGE, THREATENED THAT COULD
REASONABLY BE EXPECTED TO RESULT IN DCM, DFR OR ANY DFR AFFILIATE THEREOF (OR
ANY "PERSON ASSOCIATED WITH AN INVESTMENT ADVISER" WITH RESPECT TO DCM AS
CONTEMPLATED ABOVE) BECOMING INELIGIBLE TO SERVE IN SUCH POSITIONS OR CAPACITY
OR REQUIRING DISCLOSURE TO CLIENTS OF DCM.
(B)
COMPLIANCE AND CERTAIN OTHER MATTERS.
(i)
DCM is duly registered as an investment
adviser under the Advisers Act and each other state or jurisdiction in which DCM
is required to make a "notice filing" under applicable law.
The governmental
approvals and other consents needed to perform its obligations under the
Transaction Documents have been duly obtained, and are in full force and effect
and all such governmental approvals, consents and other filings and
registrations were prepared in accordance with applicable law and did not when
filed contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements in them not misleading in light
of the circumstances under which they were made.
DCM has provided to Investor
true, accurate and complete copies of all filings, registrations and other
governmental approvals and consents filed, given or