SUCH DEFAULT OR VIOLATION HAS BEEN WAIVED), (II) IS IN
VIOLATION OF ANY ORDER OF ANY COURT, ARBITRATOR OR GOVERNMENTAL BODY OR (III) IS
OR HAS BEEN IN VIOLATION OF ANY STATUTE, RULE OR REGULATION OF ANY GOVERNMENTAL
AUTHORITY.
(O)
TITLE TO ASSETS.
THE COMPANY AND THE SIGNIFICANT SUBSIDIARIES HAVE GOOD
AND MARKETABLE TITLE IN FEE SIMPLE TO ALL REAL PROPERTY OWNED BY THEM THAT IS
MATERIAL TO THE BUSINESS OF THE COMPANY AND THE SIGNIFICANT SUBSIDIARIES AND
GOOD AND MARKETABLE TITLE IN ALL PERSONAL PROPERTY OWNED BY THEM THAT IS
MATERIAL TO THE BUSINESS OF THE COMPANY AND THE SIGNIFICANT SUBSIDIARIES, IN
EACH CASE FREE AND CLEAR OF ALL LIENS, EXCEPT FOR LIENS THAT DO NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR WOULD REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE EFFECT.
ANY REAL PROPERTY AND FACILITIES HELD UNDER LEASE
BY THE COMPANY AND THE SIGNIFICANT SUBSIDIARIES ARE HELD BY THEM UNDER VALID,
SUBSISTING AND ENFORCEABLE LEASES OF WHICH THE COMPANY AND THE SIGNIFICANT
SUBSIDIARIES ARE IN MATERIAL COMPLIANCE.
(P)
NO GENERAL SOLICITATION; PLACEMENT AGENT'S FEES.
NEITHER THE COMPANY, NOR
ANY OF ITS AFFILIATES, NOR ANY PERSON ACTING ON ITS OR THEIR BEHALF, HAS ENGAGED
IN ANY FORM OF GENERAL SOLICITATION OR GENERAL ADVERTISING (WITHIN THE MEANING
OF REGULATION D) IN CONNECTION WITH THE OFFER OR SALE OF THE SECURITIES.
THE
COMPANY SHALL BE RESPONSIBLE FOR THE PAYMENT OF ANY PLACEMENT AGENT'S FEES,
FINANCIAL ADVISORY FEES, OR BROKERS' COMMISSIONS (OTHER THAN FOR PERSONS ENGAGED
BY ANY INVESTOR OR ITS INVESTMENT ADVISOR) RELATING TO OR ARISING OUT OF THE
ISSUANCE OF THE SECURITIES PURSUANT TO THIS AGREEMENT.
THE COMPANY SHALL PAY,
AND HOLD EACH INVESTOR HARMLESS AGAINST, ANY LIABILITY, LOSS OR EXPENSE
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND OUT-OF-POCKET
EXPENSES) ARISING IN CONNECTION WITH ANY SUCH CLAIM FOR FEES ARISING OUT OF THE
ISSUANCE OF THE SECURITIES PURSUANT TO THIS AGREEMENT.
9
(Q)
PRIVATE PLACEMENT.
NONE OF THE COMPANY, ITS SUBSIDIARIES, ANY OF THEIR
AFFILIATES, OR ANY PERSON ACTING ON THEIR BEHALF HAS, DIRECTLY OR INDIRECTLY, AT
ANY TIME WITHIN THE PAST SIX MONTHS, MADE ANY OFFER OR SALE OF ANY SECURITY OR
SOLICITATION OF ANY OFFER TO BUY ANY SECURITY UNDER CIRCUMSTANCES THAT WOULD
(I) ELIMINATE THE AVAILABILITY OF THE EXEMPTION FROM REGISTRATION UNDER
REGULATION D UNDER THE SECURITIES ACT IN CONNECTION WITH THE OFFER AND SALE BY
THE COMPANY OF THE SECURITIES AS CONTEMPLATED HEREBY OR (II) CAUSE THE OFFERING
OF THE SECURITIES PURSUANT TO THE TRANSACTION DOCUMENTS TO BE INTEGRATED WITH
PRIOR OFFERINGS BY THE COMPANY FOR PURPOSES OF ANY APPLICABLE LAW, REGULATION OR
STOCKHOLDER APPROVAL PROVISIONS, INCLUDING, WITHOUT LIMITATION, UNDER THE RULES
AND REGULATIONS OF ANY TRADING MARKET.
THE COMPANY IS NOT REQUIRED TO BE
REGISTERED AS, A UNITED STATES REAL PROPERTY HOLDING CORPORATION WITHIN THE
MEANING OF THE FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT OF 1980.
(R)
FORM S-3 ELIGIBILITY.
THE COMPANY IS ELIGIBLE TO REGISTER THE CONVERSION
SHARES FOR RESALE BY THE INVESTORS USING FORM S-3 PROMULGATED UNDER THE