Common use of Not an Investment Company Clause in Contracts

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Placement Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package Statement and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Units and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “"investment company” " as defined in the Investment Company Act of 1940, as amended (the “"Investment Company Act”"), and the rules and regulations of the Commission thereunder or (ii) a “"business development company” " (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Units and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Stock and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “"investment company” " as defined in the Investment Company Act of 1940, as amended (the “"Investment Company Act”"), and the rules and regulations of the Commission thereunder or (ii) a “"business development company” " (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornot, nor after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be be, (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the ““ Investment Company ActAct ”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornot, nor after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be be, (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the ““ Investment Company ActAct ”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornot, and after giving effect to the offering and sale of the Securities Notes and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the ProspectusOffering Memorandum, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not orand, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof therefrom as described in the Registration Statement, Disclosure Package Time of Sale Memorandum and the ProspectusOffering Memorandum, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not orand, after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be (i) required to register as an “"investment company” " as defined in the Investment Company Act of 1940, as amended (the “"Investment Company Act”"), and the rules and regulations of the Commission thereunder or (ii) a “"business development company” " (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration StatementCompany’s Proxy Statement filed with the Commission on July 27, Disclosure Package and the Prospectus2009, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).or

Not an Investment Company. The Company is not ornot, nor after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be be, (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the ““ Investment Company Act”Act “), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not orand, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof therefrom as described in the Registration Statement, Disclosure Package Time of Sale Information and the Prospectus, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornot, and after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in each of the Registration Statement, Disclosure Package Statement and the Prospectus, Prospectus will not be (i) be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).amended. ​

Not an Investment Company. The Company is not orand, after giving effect to the offering and sale as of the Securities and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the ProspectusClosing, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities Notes and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package the Prospectus and the ProspectusDisclosure Package, will not be (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”” ), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornot, and as of the applicable Settlement Date and after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof therefrom as described in the Registration Statement, Disclosure Package Statement and the Prospectus, will not be (i) required to register as an “investment company” as defined in or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”)amended, and the rules and regulations of the Commission thereunder or (ii) a collectively, the “business development company” (as defined in Section 2(a)(48) of the Investment Company Act”).

Not an Investment Company. The Company is not ornot, nor after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be be, (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the ““ Investment Company Act”Act “), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not, and will not orbe, after giving effect to the offering offer and sale of the Securities Shares and the application of the proceeds thereof therefrom as described under “Use of Proceeds” in the Registration Statement, Disclosure Package Statement and the Prospectus, will not be (i) required to register as an “investment company” as defined in (within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder ) or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

Not an Investment Company. The Company is not ornow, nor immediately after giving effect to the offering and sale of the Securities Shares and the application of the proceeds thereof as described in the Registration Statement, Disclosure Package and the Prospectus, will not be the Company be, (i) required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and regulations of the Commission thereunder thereunder, or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).