A COMPLETE LOSS OF SUCH INVESTMENT AND TO BEAR THE ECONOMIC RISK
OF SUCH INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
SUCH PURCHASER HAS BEEN
GIVEN ACCESS TO ALL INFORMATION WITH RESPECT TO THE
2
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 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