ACCOUNTING PRINCIPLES AND TO MAINTAIN ASSET ACCOUNTABILITY,
(III) ACCESS TO ASSETS IS PERMITTED ONLY IN ACCORDANCE WITH MANAGEMENT'S GENERAL
OR SPECIFIC AUTHORIZATION AND (IV) THE RECORDED ACCOUNTABILITY FOR ASSETS IS
COMPARED WITH THE EXISTING ASSETS AT REASONABLE INTERVALS AND APPROPRIATE ACTION
IS TAKEN WITH RESPECT TO ANY DIFFERENCES.
(DD) SARBANES-OXLEY ACT.
THE COMPANY IS IN COMPLIANCE WITH APPLICABLE
REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 AND APPLICABLE RULES AND
REGULATIONS PROMULGATED BY THE SEC THEREUNDER, EXCEPT WHERE SUCH NONCOMPLIANCE
WOULD NOT HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
(EE) INVESTMENT COMPANY.
NEITHER THE COMPANY NOR ANY OF ITS SIGNIFICANT
SUBSIDIARIES IS (I) AN "INVESTMENT COMPANY" AS DEFINED IN, OR SUBJECT TO
REGULATION UNDER, THE INVESTMENT COMPANY ACT OF 1940 OR (II) A "HOLDING COMPANY"
AS DEFINED IN, OR SUBJECT TO REGULATION UNDER, THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935.
(FF)
MARGIN STOCK.
NEITHER THE COMPANY NOR ANY OF THE SIGNIFICANT
SUBSIDIARIES IS ENGAGED PRINCIPALLY, OR AS ONE OF THEIR IMPORTANT ACTIVITIES, IN
THE BUSINESS OF EXTENDING CREDIT FOR THE PURPOSE OF BUYING OR CARRYING MARGIN
STOCK (AS SUCH TERM IS DEFINED IN REGULATION U).
IMMEDIATELY BEFORE AND AFTER
GIVING EFFECT TO THE SALE OF THE CONVERTIBLE NOTES, MARGIN STOCK WILL CONSTITUTE
LESS THAN 25% OF THE COMPANY'S ASSETS AS DETERMINED IN ACCORDANCE WITH
REGULATION U.
NO PART OF THE PROCEEDS OF THE CONVERTIBLE NOTES WILL BE USED,
WHETHER DIRECTLY OR INDIRECTLY, AND WHETHER IMMEDIATELY, INCIDENTALLY OR
ULTIMATELY, TO PURCHASE, ACQUIRE OR CARRY ANY MARGIN STOCK OR FOR ANY PURPOSE
THAT ENTAILS A VIOLATION OF, OR THAT IS INCONSISTENT WITH, THE PROVISIONS OF THE
REGULATIONS OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM OF THE
UNITED STATES OF AMERICA, INCLUDING REGULATION T, U OR X.
3.2
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
EACH INVESTOR HEREBY, AS
TO ITSELF ONLY AND FOR NO OTHER INVESTOR, REPRESENTS AND WARRANTS TO THE COMPANY
AS FOLLOWS:
(A)
ORGANIZATION; AUTHORITY.
SUCH INVESTOR IS AN ENTITY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION WITH THE REQUISITE CORPORATE OR PARTNERSHIP POWER AND AUTHORITY TO
ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND
12
THEREUNDER.
THE PURCHASE BY SUCH INVESTOR OF THE SECURITIES HEREUNDER HAS BEEN
DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF SUCH INVESTOR.
THIS
AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY SUCH INVESTOR AND CONSTITUTES
THE VALID AND BINDING OBLIGATION OF SUCH INVESTOR, ENFORCEABLE AGAINST IT IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS MAY BE LIMITED BY (I) APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER LAWS OF GENERAL APPLICATION
RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS RIGHTS GENERALLY AND
(II) THE EFFECT OF RULES OF LAW GOVERNING THE AVAILABILITY OF SPECIFIC
PERFORMANCE AND OTHER EQUITABLE REMEDIES.
(B)
NO PUBLIC SALE OR DISTRIBUTION; INVESTMENT INTENT.
SUCH INVESTOR IS
ACQUIRING THE SECURITIES IN THE ORDINARY COURSE OF BUSINESS FOR ITS OWN ACCOUNT
AND NOT WITH