IN THE
INDENTURE, THE NOTES AND THIS AGREEMENT, THE DISPOSITION OF SUCH PURCHASER'S
PROPERTY SHALL AT ALL TIMES BE AND REMAIN UNDER ITS SOLE DISCRETION AND
CONTROL.
SUCH PURCHASER ACKNOWLEDGES AND AGREES THAT EACH NOTE WILL BEAR A
LEGEND (OR A SUBSTANTIALLY
2
SIMILAR INDICATION) INDICATING THAT THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED
FOR SALE OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION FROM REGISTRATION THEREUNDER, IN ADDITION TO ANY OTHER LEGENDS
REQUIRED BY APPLICABLE STATE BLUE SKY LAWS.
4.3.
ACCREDITED INVESTOR, ETC.
SUCH PURCHASER HAS SUCH KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS SO AS TO BE CAPABLE OF EVALUATING
THE MERITS AND RISKS OF ITS INVESTMENT IN THE NOTES, IS ABLE TO INCUR 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 COMPANY REQUESTED BY SUCH 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.
SUCH PURCHASER HAS INDEPENDENTLY AND
WITHOUT RELIANCE ON THE COMPANY, AND BASED ON SUCH INFORMATION AS SUCH PURCHASER
HAS DEEMED APPROPRIATE, MADE ITS OWN ANALYSIS AND DECISION TO ENTER INTO THIS
AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY, EXCEPT THAT SUCH PURCHASER
HAS RELIED UPON THE COMPANY'S EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS
MADE HEREIN.
SUCH PURCHASER ACKNOWLEDGES THAT THE COMPANY HAS NOT GIVEN SUCH
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.
SUCH 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 SUCH PURCHASER WITH
RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce each Purchaser to enter into this Agreement and to purchase
the Notes hereunder, the Company represents and warrants for the benefit of each
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