BORROWER TO ANY BROKER,
FINANCIAL ADVISOR OR CONSULTANT, FINDER, PLACEMENT AGENT, INVESTMENT BANKER,
BANK OR OTHER PERSON WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
THE LENDER SHALL HAVE NO OBLIGATION WITH RESPECT TO ANY FEES OR WITH
RESPECT TO ANY CLAIMS (OTHER THAN SUCH FEES OR COMMISSIONS OWED BY THE LENDER
PURSUANT TO WRITTEN AGREEMENTS EXECUTED BY THE LENDER WHICH FEES OR COMMISSIONS
SHALL BE THE SOLE RESPONSIBILITY OF THE LENDER) MADE BY OR ON BEHALF OF OTHER
PERSONS FOR FEES OF A TYPE CONTEMPLATED IN THIS SECTION THAT MAY BE DUE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(T)
CERTAIN REGISTRATION MATTERS. ASSUMING
THE ACCURACY OF THE LENDER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION
3.2(B)-(E), NO REGISTRATION UNDER THE SECURITIES ACT IS REQUIRED FOR THE OFFER
AND SALE OF THE SECURITIES BY THE BORROWER TO THE LENDER UNDER THE TRANSACTION
DOCUMENTS.
THE BORROWER IS ELIGIBLE TO REGISTER THE RESALE OF ITS
COMMON STOCK
FOR RESALE BY THE LENDER UNDER FORM S-3 PROMULGATED UNDER THE SECURITIES ACT.
EXCEPT AS DESCRIBED IN DISCLOSURE SCHEDULE 3.1(V), THE BORROWER HAS NOT GRANTED
OR AGREED TO GRANT TO ANY PERSON ANY
10
RIGHTS (INCLUDING "PIGGY-BACK" REGISTRATION RIGHTS) TO HAVE ANY SECURITIES OF
THE BORROWER REGISTERED WITH THE COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY
THAT HAVE NOT BEEN SATISFIED.
(U)
INVESTMENT COMPANY.
THE BORROWER IS NOT,
AND IS NOT AN AFFILIATE OF, AN "INVESTMENT COMPANY" WITHIN THE MEANING OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(V)
NO ADDITIONAL AGREEMENTS.
THE BORROWER DOES
NOT HAVE ANY AGREEMENT OR UNDERSTANDING WITH THE LENDER WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS OTHER THAN AS SPECIFIED
IN THIS AGREEMENT.
(W)
ACKNOWLEDGMENT REGARDING LENDER'S PURCHASE OF
SECURITIES. THE BORROWER ACKNOWLEDGES AND AGREES THAT THE LENDER IS ACTING
SOLELY IN THE CAPACITY OF AN ARM'S LENGTH LENDER WITH RESPECT TO THE TRANSACTION
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY. THE BORROWER FURTHER
ACKNOWLEDGES THAT THE LENDER IS NOT ACTING AS A FINANCIAL ADVISOR OR FIDUCIARY
OF THE BORROWER (OR IN ANY SIMILAR CAPACITY) WITH RESPECT TO THE TRANSACTION
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND ANY ADVICE GIVEN BY THE
LENDER OR ANY OF ITS REPRESENTATIVES OR AGENTS IN CONNECTION WITH THE
TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY IS MERELY
INCIDENTAL TO THE LENDER'S PURCHASE OF THE SECURITIES. THE BORROWER FURTHER
REPRESENTS TO THE LENDER THAT THE BORROWER'S DECISION TO ENTER INTO THIS
AGREEMENT HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION BY THE BORROWER
AND ITS REPRESENTATIVES.
3.2.
REPRESENTATIONS AND WARRANTIES OF THE LENDER.
THE LENDER HEREBY
REPRESENTS AND WARRANTS TO THE BORROWER AS FOLLOWS:
(A)
ORGANIZATION; 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 POWER AND AUTHORITY TO
ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE APPLICABLE
TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS THEREUNDER.
THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT HAVE BEEN DULY EXECUTED