Common use of REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE Clause in Contracts

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE. Purchaser. --------- 5.1. The Purchaser represents and warrants to, and covenants with, the Company, as of the date hereof and as of the Closing Date, that: (i) the Purchaser is an "accredited investor" as defined in Regulation D under the United States Securities Act of 1933, as amended (the "Securities Act"); and also is knowledgeable and experienced in making investments in private placement transactions such as the purchase of the Preferred Shares; (ii) the Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by companies comparable to the Company, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Shares; (iii) the Purchaser is acquiring the Shares set forth above for its own account for investment and with no present intention of distributing any of such Shares, and no arrangement or understanding exists with any other person regarding the distribution of any of such Shares; (iv) the Purchaser will not, directly or indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except (a) in the event the Shares are registered pursuant to an effective registration statement under the Securities Act, (b) upon delivery of an opinion of counsel (which shall be in form and substance reasonably satisfactory to the Company) that such registration is not required, (c) in connection with a sale, transfer or other disposition made pursuant to Section 144(k) of the Securities Act or (d) to an Affiliate of the Purchaser provided that (i) in each of cases (a), (c) and (d) set forth above no opinion of counsel shall be required and (ii) such offer, sale, pledge or transfer does not otherwise violate the terms of this Agreement; and (v) the Purchaser has had an opportunity to ask questions and receive answers from the management of the Company regarding the Company, its business and the offering of the Shares. 5.2. The Purchaser further represents and warrants to, and covenants with, the Company that (i) the Purchaser has full right, power, authority and capacity to enter into this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Registration Rights Agreement, and (ii) upon the execution and delivery of this Agreement and the Registration Rights Agreement, this Agreement and the Registration Rights Agreement shall constitute valid and binding obligations of the Purchaser enforceable in accordance with their terms. 5.3. The Purchaser acknowledges and understands that there is no public market for the Shares and that the Purchaser must bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The certificates representing the Shares issued to Purchaser will bear a legend in substantially the following form: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL (WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY), THAT SUCH REGISTRATION IS NOT REQUIRED, UNLESS SUCH SALE, TRANSFER OR OTHER DISPOSITION IS MADE PURSUANT TO RULE 144(K) OF THE SECURITIES ACT, IN WHICH CASE SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY BE MADE AND NO OPINION OF COUNSEL SHALL BE REQUIRED. The Company agrees to remove such legend from the certificates representing the Shares issued to Purchaser at such time as such Shares may be legally sold under Rule 144 of the Securities Act (or any successor rule) without registration under the Securities Act, at the request of the Purchaser and upon receipt from the Purchaser of an opinion, which shall be in form and substance reasonably satisfactory to the Company, that such legend may be removed. The Purchaser agrees that any sale, transfer, pledge, hypothecation or other disposition of the Shares shall be made in compliance with such legend and the requirements set forth in Section 2.2.

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE. Purchaser. ---------The Borrower hereby represents, warrants and covenants for itself (unless otherwise provided): 5.1. The Purchaser represents (a) It is duly organized and warrants tovalidly existing under the laws of the jurisdiction of its organization and in good standing (or its equivalent), except where the failure to be so duly organized, validly existing and in good standing, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, and covenants with, it is duly qualified to do business in each jurisdiction where the Company, as of the date hereof failure to do so would have a material adverse effect upon its financial condition and as of the Closing Date, that: business; (ib) the Purchaser is an "accredited investor" as defined in Regulation D under the United States Securities Act of 1933, as amended (the "Securities Act"); and also is knowledgeable and experienced in making investments in private placement transactions such as the purchase of the Preferred Shares; (ii) the Purchaser is knowledgeable, sophisticated and experienced in makingIt has power, and is qualified duly authorized, to make, decisions with respect to investments in securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by companies comparable to the Companyexecute and deliver this Amendment, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision is authorized to purchase the Shares; (iii) the Purchaser is acquiring the Shares set forth above for perform its own account for investment and with no present intention of distributing any of such Shares, and no arrangement or understanding exists with any other person regarding the distribution of any of such Shares; (iv) the Purchaser will not, directly or indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except (a) in the event the Shares are registered pursuant to an effective registration statement obligations under the Securities Act, (b) upon delivery of an opinion of counsel (which shall be in form and substance reasonably satisfactory to the Company) that such registration is not required, this Amendment; (c) in connection with a saleThe execution, transfer delivery and performance of this Amendment does not and will not require any consent or approval of any Governmental Authority or any other disposition made pursuant to Section 144(k) of the Securities Act Person which has not already been obtained or is being obtained herein; (d) to an Affiliate This Amendment, when duly executed and delivered by the parties hereto, shall be, legal, valid and binding obligations of the Purchaser provided that Borrower and the Guarantor (ias applicable), enforceable against the Borrower and the Guarantor (as applicable) in each of cases (a), (c) and (d) accordance with the terms set forth above herein; (e) No Default or Event of Default has occurred and is continuing and no opinion Default or Event of counsel Default shall be required and (ii) such offer, sale, pledge or transfer does not otherwise violate the terms occur as a result of this Agreement; and (v) the Purchaser has had an opportunity to ask questions and receive answers from the management of the Company regarding the Company, its business and the offering of the Shares. 5.2. The Purchaser further represents and warrants to, and covenants with, the Company that (i) the Purchaser has full right, power, authority and capacity to enter into this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Amendment; and (f) It hereby confirms that each of the conditions precedent to the amendment to the Credit Agreement and the Registration Rights Agreementhas been, and (ii) upon or contemporaneously with the execution and delivery of this Agreement and the Registration Rights AgreementAmendment will be, this Agreement and the Registration Rights Agreement shall constitute valid and binding obligations of the Purchaser enforceable in accordance with their termssatisfied. 5.3. The Purchaser acknowledges and understands that there is no public market for the Shares and that the Purchaser must bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The certificates representing the Shares issued to Purchaser will bear a legend in substantially the following form: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL (WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY), THAT SUCH REGISTRATION IS NOT REQUIRED, UNLESS SUCH SALE, TRANSFER OR OTHER DISPOSITION IS MADE PURSUANT TO RULE 144(K) OF THE SECURITIES ACT, IN WHICH CASE SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY BE MADE AND NO OPINION OF COUNSEL SHALL BE REQUIRED. The Company agrees to remove such legend from the certificates representing the Shares issued to Purchaser at such time as such Shares may be legally sold under Rule 144 of the Securities Act (or any successor rule) without registration under the Securities Act, at the request of the Purchaser and upon receipt from the Purchaser of an opinion, which shall be in form and substance reasonably satisfactory to the Company, that such legend may be removed. The Purchaser agrees that any sale, transfer, pledge, hypothecation or other disposition of the Shares shall be made in compliance with such legend and the requirements set forth in Section 2.2.

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE. Purchaser. --------- 5.1. 5.1 The Purchaser represents and warrants to, and covenants with, the Company, as of the date hereof and as of the Closing Date, Company that: (i) the Purchaser is an "accredited investor" as defined in Regulation D under the United States Securities Act of 1933, as amended (the "Securities Act"); and also is knowledgeable and experienced in making investments in private placement transactions such as the purchase of the Preferred Shares; (ii) the Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities presenting shares representing an investment decision like that involved in the purchase of the Shares, including investments in securities issued by companies comparable to the Company, and has requested, received, reviewed and considered all information it deems necessary and relevant in making an informed decision to purchase the Shares; (iiiii) the Purchaser is acquiring the number of Shares set forth in Section 2 above in the ordinary course of its business and for its own account for investment purposes only and with no present intention of distributing any of such Shares, and no arrangement or understanding exists with any other person persons regarding the distribution of such Shares (this representation and warranty not limiting the Purchaser's right to sell pursuant to the Registration Statement or, other than with respect to any claims arising out of such Sharesa breach of this representation and warranty, the Purchaser's right to indemnification under Section 7.3); (iviii) the Purchaser will not, directly or indirectly, voluntarily offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except (a) in compliance with the event Securities Act and the Rules and Regulations nor will the Purchaser engage in any short sale that results in a disposition of any of the Shares are registered pursuant to an effective registration statement under the Securities Act, (b) upon delivery of an opinion of counsel (which shall be by Purchaser in form and substance reasonably satisfactory to the Company) that such registration is not required, (c) in connection with a sale, transfer or other disposition made pursuant to Section 144(k) violation of the Securities Act and the Rules and Regulations; (iv) the Purchaser has completed or (d) caused to an Affiliate be completed the Registration Statement Questionnaire attached hereto as part of Appendix I, for use in preparation of ---------- the Registration Statement, and the information in such Registration Statement Questionnaire is true and correct as of the Purchaser date hereof and will be true and correct as of the effective date of the Registration Statement (provided that (i) in each of cases (a), (c) and (d) set forth above no opinion of counsel Purchaser shall be required and (ii) entitled to update such offer, sale, pledge or transfer does not otherwise violate information prior to the terms effective date of this Agreementthe Registration Statement); and (v) the Purchaser has had an opportunity has, in connection with its decision to ask questions purchase the number of Shares set forth in Section 2 above, relied solely upon the SEC Filings, the PPM, the draft Registration Statement and receive answers from the management representations and warranties of the Company contained herein; and (vi) the Purchaser has completed or caused to be completed the Investor Suitability Questionnaire attached hereto as part of Appendix I, ---------- the information in such Investor Suitability Questionnaire is true and correct as of the date hereof and will be true and correct as of the Closing, and the Purchaser is an "accredited investor" within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act; and (vii) the Purchaser agrees to notify the Company immediately of any change in any of the foregoing information until such time as the Purchaser has sold all of its Shares or the Company is no longer required to keep the Registration Statement effective. 5.2 The Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act, the Rules and Regulations and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser's compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Shares. 5.3 The Purchaser understands that any information provided to the Purchaser by the Company is strictly confidential and proprietary to the Company and has been prepared from the Company's publicly available documents and other information and is being submitted to the Purchaser solely for such Purchaser's confidential use. The Purchaser agrees to use such information for the sole purpose of evaluating a possible investment in the Shares and the Purchaser hereby acknowledges that it is prohibited from reproducing or distributing such information, this Purchase Agreement, or any other offering materials, in whole or in part, or divulging or discussing any of their contents except for use internally and by its legal counsel and except as required by law or legal process. Further, the Purchaser understands that the existence and nature of all conversations and presentations, if any, regarding the CompanyCompany and this offering must be kept strictly confidential until such time as the Company makes a public announcement of the sale of Shares, which will occur no later than two business days following the Closing Date. The Purchaser understands that the federal securities laws impose restrictions on trading based on information regarding this offering. In addition, the Purchaser hereby acknowledges that unauthorized public disclosure of information regarding this offering may cause the Company to violate Regulation FD. 5.4 The Purchaser understands that its investment in the Shares involves a significant degree of risk and that the market price of the Common Stock has been and continues to be volatile and that no representation is being made as to the future value of the Common Stock. The Purchaser has the knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the offering Shares and has the ability to bear the economic risks of an investment in the Shares. 5.5 The Purchaser understands that no Governmental Authority has passed upon or made any recommendation or endorsement of the Shares. 5.25.6 The Purchaser understands that, until such time as the Shares may be sold by non-affiliates of the Company pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Shares): "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act"), or under the securities laws of any other jurisdiction. The securities may not be sold, transferred or assigned in the absence of an effective registration statement for the securities under the Act and applicable state securities laws, or an opinion of counsel, in form, substance and scope reasonably acceptable to the Company, that registration is not required under the Act or any applicable state securities laws or unless sold pursuant to Rule 144 under the Act." 5.7 The Purchaser's principal executive offices are in the jurisdiction set forth immediately below the Purchaser's name on the signature pages hereto. 5.8 The Purchaser hereby covenants with the Company not to make any sale of the Shares under the Registration Statement without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Purchaser acknowledges and agrees that such Shares are not transferable on the books of the Company unless the certificate submitted to the transfer agent evidencing the Shares is accompanied by a separate Purchaser's Certificate of Subsequent Sale: (i) in the form of Appendix II hereto, (ii) ----------- executed by an officer of, or other authorized person designated by, the Purchaser, and (iii) to the effect that (A) the Shares have been sold in accordance with the Registration Statement, the Securities Act and any applicable state securities or blue sky laws and (B) the requirement of delivering a current prospectus has been satisfied. 5.9 The Purchaser further represents and warrants to, and covenants with, the Company that (i) the Purchaser has full right, power, authority and capacity to enter into this Agreement and the Registration Rights Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Registration Rights Agreement, and (ii) upon the execution and delivery of this Agreement Agreement, and assuming the Registration Rights Agreementvalid execution thereof by the Company, this Agreement and the Registration Rights Agreement shall constitute a valid and binding obligations obligation of the Purchaser Purchaser, enforceable in accordance with their its terms. 5.3. The Purchaser acknowledges and understands that there is no public market for the Shares and that the Purchaser must bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act and, therefore, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. The certificates representing the Shares issued to Purchaser will bear a legend in substantially the following form: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL (WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY), THAT SUCH REGISTRATION IS NOT REQUIRED, UNLESS SUCH SALE, TRANSFER OR OTHER DISPOSITION IS MADE PURSUANT TO RULE 144(K) OF THE SECURITIES ACT, IN WHICH CASE SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY BE MADE AND NO OPINION OF COUNSEL SHALL BE REQUIRED. The Company agrees to remove such legend from the certificates representing the Shares issued to Purchaser at such time except as such Shares enforceability may be legally sold under Rule 144 limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' and contracting parties' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the Securities Act (or any successor rule) without registration under the Securities Act, at the request indemnification agreements of the Purchaser and upon receipt from the Purchaser of an opinion, which shall be in form and substance reasonably satisfactory to the Company, that such legend Section 7.3 hereof may be removed. The Purchaser agrees that any sale, transfer, pledge, hypothecation or other disposition held violative of the Shares shall be made in compliance with such legend public policy and the requirements set forth in Section 2.2therefore legally unenforceable.