Common use of Representations and Warranties of the Noteholders Clause in Contracts

Representations and Warranties of the Noteholders. Each Noteholder, severally and only with respect to itself, represents and warrants to the Company as follows: (a) Such Noteholder is acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, for its or his own account, for investment and not with a view to the distribution thereof, nor with any present intention of distributing the same. (b) Such Noteholder understands that the Preferred Stock has not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, has the ability to bear the economic risks of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions of the Company. (d) Such Noteholder has all requisite power and authority to enter into this Agreement, to perform its or his obligations hereunder, and to consummate the transactions contemplated hereby. Such Noteholder has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his consummation of the transactions contemplated hereby. This Agreement has been executed and delivered by an officer or duly authorized representative of each Noteholder in accordance with such authorization. This Agreement constitutes valid and binding obligations of such Noteholder, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, and similar laws affecting creditors' rights generally and to general principles of equity. (f) No person or entity acting on behalf or under the authority of such Noteholder is or will be entitled to any broker's, finder's, or similar fee or commission in connection with the transactions contemplated hereby which would become an obligation of the Company.

Representations and Warranties of the Noteholders. Each Noteholder, severally and only with respect to itselffor itself only, hereby represents and warrants to warrants, which representations and warranties shall survive the Company as followsclosing, that: (a) Such Noteholder Noteholders have duly authorized, executed and delivered this Agreement and such of the Transaction Documents as require execution by such Noteholder, and each constitutes the valid and binding obligation of such Noteholders enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought. (b) Such Noteholders are acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, Securities for its or his own account, and not as nominee or agent. (c) The Securities are being and will be acquired for the purpose of investment and not with a view to distribution or resale thereof; subject, nevertheless, to the distribution thereofcondition that, nor except as otherwise provided herein or in the Stockholder's Agreement and subject to compliance with any present intention applicable securities laws, the disposition of distributing the sameproperty of such Noteholders shall at all times be within its control. Such Noteholders were not formed solely for the purpose of making an investment in the Company or its Subsidiaries. (bd) Such Noteholder understands Noteholders understand that the Preferred Stock has not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they it must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, has the ability to bear the economic risks risk of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had time because the opportunity to askSecurities are not, and has received satisfactory answers forwill not be, questions of registered under the Company. (d) Such Noteholder has all requisite power Securities Act or any applicable state securities laws, except as may be provided in this Agreement and authority to enter into this the Stockholders Agreement, to perform its and may not be resold unless subsequently registered under the Securities Act and such other laws or his obligations hereunder, and to consummate the transactions contemplated herebyunless an exemption from such registration is available. Such Noteholder has not been organizedNoteholders acknowledge that, reorganized or recapitalized specifically for in issuing the purpose Securities, the Company is relying on the representations and warranties of investing such Noteholders in the Companythis Section 4.1. (e) Such Noteholder No Person has taken all requisite corporateor will have, partnership or other action necessary to authorize its or his execution and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his consummation as a result of the transactions contemplated hereby. This Agreement has been executed and delivered by an officer this Agreement, any rights, interest or duly authorized representative valid claim against or upon the Company or any of each Noteholder in accordance with its Subsidiaries for any commission, fee or other compensation as a finder or broker because of any act or omission by such authorization. This Agreement constitutes valid and binding obligations Noteholders or any agent of such Noteholder, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, and similar laws affecting creditors' rights generally and to general principles of equity. (f) No person or entity acting on behalf or under Such Noteholders hereby acknowledge that the authority Securities (unless no longer required in the opinion of such Noteholder is or will counsel, which opinion and counsel shall be entitled reasonably satisfactory to the Company, it being agreed that Xxxxxxx Procter LLP shall be satisfactory) shall bear a legend substantially in the following form (in addition to any broker'sother legend required by the Transaction Documents): THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, finder'sAS AMENDED (THE "ACT"), or similar fee or commission in connection with the transactions contemplated hereby which would become an obligation OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY LAWS. The acquisition by such Noteholders of the CompanySecurities shall constitute a confirmation by it of the foregoing representations.

Representations and Warranties of the Noteholders. Each Noteholder, severally and only with respect to itself, Noteholder hereby represents and warrants to MSV LP and General Partner that, as of the Company as followsdate of this Note Exchange and Conversion Agreement: (a) Such Noteholder is acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, for its or his own account, for investment and not with a view to the distribution thereof, nor with any present intention of distributing the same. (b) Such Noteholder understands that the Preferred Stock has not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, It has the ability to bear the economic risks of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions of the Company. (d) Such Noteholder has all requisite power and authority to enter into this Agreement, to and perform its or his obligations hereunder, under this Note Exchange and to consummate the transactions contemplated hereby. Such Noteholder has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution Conversion Agreement; this Note Exchange and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his consummation of the transactions contemplated hereby. This Conversion Agreement has been duly executed and delivered by an officer or duly authorized representative of each Noteholder it; and this Note Exchange and Conversion Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with such authorization. This Agreement constitutes valid and binding obligations of such Noteholder, enforceable in accordance with subject to its terms, subject to applicable bankruptcy, reorganization, insolvency, and moratorium or other similar laws affecting relating to creditors' rights generally and to general principles of equity.; (b) Its performance of this Note Exchange and Conversion Agreement will not require it to obtain the consent, waiver or approval of any person, and will not violate, result in a breach of or constitute a default under any statute, regulation, agreement, judgment, consent, decree or restriction by which it is bound; (c) It has obtained advice from its tax adviser as to, and understands, the tax consequences of the Note Exchange and acknowledges that it has not received or relied on tax advice from MSV LP, General Partner, or any of their tax advisers in respect of the Note Exchange or the transactions contemplated by this Note Exchange and Conversion Agreement; (d) It is a sophisticated institutional investor and has sufficient knowledge and experience in investing in private equity transactions and early-stage companies in the communications and/or satellite services industry so that it is capable of properly evaluating the risks and merits of its investment in General Partner and MSV LP. Such Noteholder is able to bear the substantial risks associated with its investment in General Partner and MSV LP, including but not limited to loss of such Noteholder's entire investment; (e) It is acquiring the Units and GP Shares for such Noteholder's own account for investment purposes only, and not with a view to any distribution of the Units or GP Shares in any manner that would violate the securities laws of the United States or any other jurisdiction; (f) No person It represents that by reason of its, or entity acting on behalf of its management's, business or under the authority of financial experience, such Noteholder is or will be entitled has the capacity to any broker's, finder's, or similar fee or commission protect its own interests in connection with the transactions contemplated hereby which would become in this Note Exchange and Conversion Agreement; (g) It represents that it is an obligation "accredited investor" within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act; (h) It has (i) had the opportunity to ask questions of and receive answers from General Partner, MSV LP and its management directly regarding General Partner and MSV LP's business, management and financial affairs and the terms and conditions of the CompanyNote Exchange, (ii) had the opportunity to review General Partner and MSV LP's operations and facilities, and (iii) conducted and completed its own independent due diligence with respect to its investment in General Partner and MSV LP; (i) It acknowledges and agrees that neither the Units nor the GP Shares have been registered under the Securities Act and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Such Noteholder understands that there is no present intention of registering any Units or GP Shares. Such Noteholder has been advised or is aware of the provisions of Rule 144 under the Securities Act as in effect from time to time; (j) In the case of Motient, (i) It is the legal owner of the Motient Promissory Note and it has not otherwise sold, pledged, assigned, transferred, hypothecated or otherwise encumbered, in whole or in part, any of its interest in the Motient Promissory Note, and (ii) The total amount of outstanding principal and accrued interest under the Motient Promissory Note set forth on SCHEDULE I hereto is a complete and accurate disclosure of all MSV LP's obligations under the Motient Promissory Note as of October 31, 2004; and (k) In the case of each Convertible Noteholder, (i) It is the legal owner of its Convertible Note and it has not otherwise sold, pledged, assigned, transferred, hypothecated or otherwise encumbered, in whole or in part, any of its interest in its Convertible Note, and (ii) The total amount of outstanding principal and accrued interest under its Convertible Note set forth on SCHEDULE I hereto is a complete and accurate disclosure of all MSV LP's obligations under its Convertible Note as of October 31, 2004.

Representations and Warranties of the Noteholders. Each Noteholder, severally and only with respect to itself, Noteholder hereby represents and warrants to MSV LP and General Partner that, as of the Company as followsdate of this Note Exchange and Conversion Agreement: (a) Such Noteholder is acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, for its or his own account, for investment and not with a view to the distribution thereof, nor with any present intention of distributing the same. (b) Such Noteholder understands that the Preferred Stock has not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, It has the ability to bear the economic risks of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions of the Company. (d) Such Noteholder has all requisite power and authority to enter into this Agreement, to and perform its or his obligations hereunder, under this Note Exchange and to consummate the transactions contemplated hereby. Such Noteholder has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution Conversion Agreement; this Note Exchange and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his consummation of the transactions contemplated hereby. This Conversion Agreement has been duly executed and delivered by an officer or duly authorized representative of each Noteholder it; and this Note Exchange and Conversion Agreement constitutes its valid and legally binding obligation, enforceable against it in accordance with such authorization. This Agreement constitutes valid and binding obligations of such Noteholder, enforceable in accordance with subject to its terms, subject to applicable bankruptcy, reorganization, insolvency, and moratorium or other similar laws affecting relating to creditors' rights generally and to general principles of equity.; (b) Its performance of this Note Exchange and Conversion Agreement will not require it to obtain the consent, waiver or approval of any person, and will not violate, result in a breach of or constitute a default under any statute, regulation, agreement, judgment, consent, decree or restriction by which it is bound; (c) It has obtained advice from its tax adviser as to, and understands, the tax consequences of the Note Exchange and acknowledges that it has not received or relied on tax advice from MSV LP, General Partner, or any of their tax advisers in respect of the Note Exchange or the transactions contemplated by this Note Exchange and Conversion Agreement; (d) It is a sophisticated institutional investor and has sufficient knowledge and experience in investing in private equity transactions and early-stage companies in the communications and/or satellite services industry so that it is capable of properly evaluating the risks and merits of its investment in General Partner and MSV LP. Such Noteholder is able to bear the substantial risks associated with its investment in General Partner and MSV LP, including but not limited to loss of such Noteholder's entire investment; (e) It is acquiring the Units and GP Shares for such Noteholder's own account for investment purposes only, and not with a view to any distribution of the Units or GP Shares in any manner that would violate the securities laws of the United States or any other jurisdiction; (f) No person It represents that by reason of its, or entity acting on behalf of its management's, business or under the authority of financial experience, such Noteholder is or will be entitled has the capacity to any broker's, finder's, or similar fee or commission protect its own interests in connection with the transactions contemplated hereby which would become in this Note Exchange and Conversion Agreement; (g) It represents that it is an obligation "accredited investor" within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act; (h) It has (i) had the opportunity to ask questions of and receive answers from General Partner, MSV LP and its management directly regarding General Partner and MSV LP's business, management and financial affairs and the terms and conditions of the CompanyNote Exchange, (ii) had the opportunity to review General Partner and MSV LP's operations and facilities, and (iii) conducted and completed its own independent due diligence with respect to its investment in General Partner and MSV LP; (i) It acknowledges and agrees that neither the Units nor the GP Shares have been registered under the Securities Act and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Such Noteholder understands that there is no present intention of registering any Units or GP Shares. Such Noteholder has been advised or is aware of the provisions of Rule 144 under the Securities Act as in effect from time to time; (j) In the case of Motient, (i) It is the legal owner of the Motient Promissory Note and it has not otherwise sold, pledged, assigned, transferred, hypothecated or otherwise encumbered, in whole or in part, any of its interest in the Motient Promissory Note, and (ii) The total amount of outstanding principal and accrued interest under the Motient Promissory Note set forth on Schedule I hereto is a complete and accurate disclosure of all MSV LP's obligations under the Motient Promissory Note as of October 31, 2004; and (k) In the case of each Convertible Noteholder, (i) It is the legal owner of its Convertible Note and it has not otherwise sold, pledged, assigned, transferred, hypothecated or otherwise encumbered, in whole or in part, any of its interest in its Convertible Note, and (ii) The total amount of outstanding principal and accrued interest under its Convertible Note set forth on Schedule I hereto is a complete and accurate disclosure of all MSV LP's obligations under its Convertible Note as of October 31, 2004.

Representations and Warranties of the Noteholders. Each Noteholder, severally and only with respect to itselffor itself only, hereby represents and warrants to warrants, which representations and warranties shall survive the Company as followsClosing, that: (a) Such Noteholder has duly authorized, executed and delivered this Agreement and such of the Subordinated Notes Documents as require execution by such Noteholder, and each constitutes the valid and binding obligation of such Noteholder enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought. (b) Such Noteholder is acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, Securities for its or his own account, and not as nominee or agent. (c) The Securities are being and will be acquired for the purpose of investment and not with a view to distribution or resale thereof; subject, nevertheless, to the distribution thereofcondition that, nor except as otherwise provided herein and subject to compliance with any present intention applicable securities laws, the disposition of distributing the same. (b) property of such Noteholder shall at all times be within its control. Such Noteholder understands that was not formed solely for the Preferred Stock has not been, and any other capital stock purpose of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is making an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, has the ability to bear the economic risks of Company or its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions of the CompanySubsidiaries. (d) Such Noteholder acknowledges that it has all requisite power reviewed and authority to enter into this Agreementdiscussed the business, to perform its or his obligations hereunder, affairs and to consummate current prospects of the transactions contemplated hereby. Such Noteholder has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution and delivery of this Agreement, its or his performance of its or his obligations hereunder, Company and its or his consummation Subsidiaries with such officers of the transactions contemplated hereby. This Agreement Company and its Subsidiaries and others as it has been executed and delivered by an officer deemed appropriate or duly authorized representative of each Noteholder in accordance with such authorization. This Agreement constitutes valid and binding obligations of such Noteholder, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, and similar laws affecting creditors' rights generally and to general principles of equity. (f) No person or entity acting on behalf or under the authority of such Noteholder is or will be entitled to any broker's, finder's, or similar fee or commission desirable in connection with the transactions contemplated hereby which would become an obligation by this Agreement. Such Noteholder further acknowledges that it has requested, received and reviewed such information, undertaken such investigation and made such further inquiries of officers of the CompanyCompany and its Subsidiaries and others as it has deemed appropriate or desirable in connection with such transactions, provided, however, no investigation made heretofore or hereafter by or on behalf of such Noteholder shall have any effect whatsoever on the representations and warranties of the Borrowers hereunder, each of which will survive any such investigation.

Representations and Warranties of the Noteholders. Each Noteholder, The Noteholders severally but not jointly represent and only with respect to itself, represents and warrants warrant to the Company as followsthat: (a) Such The execution, delivery and performance by each Noteholder is acquiring the Preferred Stock to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, for its or his own account, for investment and not with a view to the distribution thereof, nor with any present intention of distributing the same. (b) Such Noteholder understands that the Preferred Stock has not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, registered under the Act, by reason of its issuance in a transaction exempt from the registration requirements of the Act, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (the provisions of which are known to such Noteholder) promulgated under the Act and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, has the ability to bear the economic risks of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions of the Company. (d) Such Noteholder has all requisite power and authority to enter into this Agreement, to perform its or his obligations hereunder, and to consummate the transactions contemplated hereby. Such Noteholder has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his the consummation of the transactions contemplated hereby. This Agreement has been executed and delivered by an officer or duly authorized representative hereby are within the powers of each Noteholder in accordance with such authorization. This and have been or will have been duly authorized by all necessary action on the part of each Noteholder, and this Agreement constitutes a valid and binding obligations agreement of such each Noteholder, enforceable in accordance with its terms, subject to except (i) as limited by applicable bankruptcy, insolvency, reorganization, insolvencymoratorium, and similar other laws of general application affecting enforcement or creditors' ’ rights generally and or (ii) as limited by laws relating to general principles the availability of equityspecific performance, injunctive relief, or other equitable remedies. (fb) No person The execution, delivery and performance by the Noteholders of this Agreement, and the consummation of the transactions contemplated by this Agreement, do not and will not violate the constituent documents of any Noteholder. (c) Each Noteholder is the beneficial owner of the Notes set forth next to the Noteholder’s name on Schedule A hereto, such Notes represent all of the aggregate principal amount of Notes beneficially owned by the Noteholder, and upon the consummation of the transactions contemplated hereby, the Company will receive the Notes free and clear of all encumbrances, liens, equities or entity acting claims created by the Noteholder, if any (collectively, “Liens”). (d) There is no investment banker, broker, finder or other intermediary which has been retained by, will be retained by or is authorized to act on behalf or under of the authority of such Noteholder is or will Noteholders who might be entitled to any broker's, finder's, or similar fee or commission in connection with from the Noteholders upon consummation of the transactions contemplated hereby which would become an obligation by this Agreement. (e) The Noteholders acknowledge that the Company has made no representations, warranties or covenants regarding the purchase of the Notes, the operation or financial condition of the Company, or the fair market value of the Notes that are not reflected in this Agreement.

Representations and Warranties of the Noteholders. Each Noteholder, Noteholder severally and only with respect to itself, represents and warrants to the Company Parties as follows: (a) Such The Noteholder is acquiring has the Preferred Stock power and authority to be purchased by it or him and, should such Noteholder acquire other capital stock of the Company issuable upon conversion of any Preferred Stock, it or he will acquire such other capital stock, for execute and deliver this Agreement and to perform its or his own account, for investment and not with a view to the distribution thereof, nor with any present intention of distributing the sameobligations hereunder. (b) Such This Agreement has been duly executed and delivered by the Noteholder. This Agreement is the legal, valid and binding obligation of the Noteholder, enforceable against the Noteholder in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally and is in full force and effect. (c) The Noteholder beneficially owns the aggregate principal amount of the Existing Notes set forth under such Noteholder’s name on the signature pages hereto, which represent all the Existing Notes held by the Noteholder as of the date of this Agreement, and will beneficially own any After-Acquired Notes, in each case, free and clear of any pledge, security interest, claim, lien or other encumbrance of any kind. There are no contracts or other agreements between or among the Noteholder and any other person that would conflict with, restrict or prohibit the Noteholder’s ability to fulfill its obligations under this Agreement. (d) The Noteholder is (1) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or (2) an institutional “accredited investor” (within the meaning of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act). (e) The Noteholder acknowledges that it has had the opportunity to speak with a representative of the Company Parties and to obtain and review information reasonably requested by the Noteholder from the Company Parties. (f) The Noteholder understands that (1) the exchange of its Existing Notes for New Notes is a speculative investment involving a high degree of risk, (2) no representation is being made as to the business, financial position, results of operations or prospects of the Company or the future value of the New Notes, (3) the economic benefits that may be derived from the New Notes are uncertain and (4) the total amount of the Noteholder’s investment could be lost. (g) The Noteholder understands that the Preferred Stock has New Notes have not been, and any other capital stock of the Company issuable upon conversion of any Preferred Stock, will not be, been registered under the Act, by reason of its issuance Securities Act or any state securities laws and that the New Notes are being offered and sold to it in a transaction exempt reliance on specific exemptions from the registration requirements of the ActSecurities Act and state securities laws and regulations and that the Company Parties are relying upon the truth and accuracy of, and that they must be held indefinitely unless a subsequent disposition thereof is registered under the Act or is exempt from registration. (c) Such Noteholder is an "accredited investor," as defined in Rule 501 (Noteholder’s compliance with, the provisions of which are known to such Noteholder) promulgated under the Act representations, warranties, agreements, acknowledgments and has been advised by individuals with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Company, has the ability to bear the economic risks of its investment for an indefinite period of time, has been furnished with and has had access to such information as reasonably requested and has had the opportunity to ask, and has received satisfactory answers for, questions understandings of the Company. (d) Such Noteholder has all requisite power set forth herein in order to determine the availability of such exemptions and authority the eligibility of the Noteholder to enter into this Agreement, to perform its or his obligations hereunder, and to consummate acquire the transactions contemplated herebyNew Notes. Such The Noteholder has not been organized, reorganized or recapitalized specifically understands that there is no established market for the purpose of investing in New Notes and that no public market for the Company. (e) Such Noteholder has taken all requisite corporate, partnership or other action necessary to authorize its or his execution and delivery of this Agreement, its or his performance of its or his obligations hereunder, and its or his consummation of the transactions contemplated hereby. This Agreement has been executed and delivered by an officer or duly authorized representative of each Noteholder in accordance with such authorization. This Agreement constitutes valid and binding obligations of such Noteholder, enforceable in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, and similar laws affecting creditors' rights generally and to general principles of equity. (f) No person or entity acting on behalf or under the authority of such Noteholder is or will be entitled to any broker's, finder's, or similar fee or commission in connection with the transactions contemplated hereby which would become an obligation of the Company.New Notes may