Common use of The Lender Clause in Contracts

The Lender. (i) if a natural person, represents that the Lender has reached the age of 21 and has full power and authority to execute and deliver this Subscription Agreement, the Warrant Agreement and the Security Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof (collectively referred to herein as the "SUBSCRIPTION DOCUMENTS"); (ii) if a corporation, partnership, limited liability company or partnership, association, joint stock company, trust, unincorporated organization or other entity, either such entity was not formed for the specific purpose of acquiring the Note, the Warrants and the Conversion Shares or all of the equity owners of such entity meet the requirement of at least one of the suitability standards for an "accredited investor" as set forth on the Accredited Investor Certification contained herein, such entity is duly organized, validly existing and in good standing under the laws of the state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and deliver the Subscription Documents and all other related agreements or certificates and to carry out the provisions hereof and thereof and to acquire and hold the Note, the Warrants and the Conversion Shares, the execution and delivery of the Subscription Documents have been duly authorized by all necessary action, the Subscription Documents have been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; and (iii) if executing this Subscription Agreement in a representative or fiduciary capacity, the undersigned has full power and authority to execute and deliver the Subscription Documents in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or limited liability partnership, or other entity for whom the undersigned is executing the Subscription Documents, and such individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity has full right and power to perform pursuant to the Subscription Documents and make an investment in the Company, and that the Subscription Documents constitute legal, valid and binding obligations of such entity.

The Lender. AND THE BORROWER EACH HEREBY WAIVES ITS RIGHT TO RESOLVE DISPUTES, CLAIMS, AND CONTROVERSIES ARISING FROM THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY MATTER IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, CONTRACT DISPUTES AND TORT CLAIMS, THROUGH ANY COURT PROCEEDING OR LITIGATION AND ACKNOWLEDGES THAT ALL SUCH DISPUTES, CLAIMS AND CONTROVERSIES SHALL BE RESOLVED PURSUANT TO THIS SECTION, EXCEPT THAT EQUITABLE RELIEF AND CERTAIN OTHER RIGHTS AND REMEDIES SET FORTH BELOW MAY BE SOUGHT FROM ANY COURT OF COMPETENT JURISDICTION. THE BORROWER REPRESENTS TO THE LENDER AND THE LENDER REPRESENTS TO THE BORROWER THAT THIS WAIVER IS MADE KNOWINGLY AND VOLUNTARILY AFTER CONSULTATION WITH AND UPON ADVICE OF ITS COUNSEL AND IS A MATERIAL PART OF THIS AGREEMENT. ALL SUCH DISPUTES, CLAIMS AND CONTROVERSIES SHALL BE RESOLVED BY BINDING ARBITRATION PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION (i) if a natural person"AAA"). Any arbitration proceeding held pursuant to this arbitration provision shall be conducted in Dallas, represents that Texas or at any other place selected by mutual agreement of the Lender has reached the age of 21 and has full power and authority to execute and deliver this Subscription Agreement, the Warrant Agreement and the Security Agreement Borrower. No act to take or dispose of any collateral shall constitute a waiver of this arbitration agreement or be prohibited by this arbitration agreement. This arbitration provision shall not limit the right of either party during any dispute, claim or controversy to seek, use, and all other related agreements employ ancillary, or certificates and to carry out the provisions hereof and thereof (collectively referred to herein as the "SUBSCRIPTION DOCUMENTS"); (ii) if a corporationpreliminary rights and/or remedies, partnershipjudicial or otherwise, limited liability company or partnership, association, joint stock company, trust, unincorporated organization or other entity, either such entity was not formed for the specific purpose purposes of acquiring realizing upon, preserving, protecting, foreclosing upon or proceeding under forcible entry and detainer for possession of, any real or personal property, and any such action shall not be deemed an election of remedies. Such remedies include, without limitation, obtaining injunctive relief or a temporary restraining order, invoking a power of sale under any deed of trust or mortgage, obtaining a writ of attachment or imposition of a receivership, or exercising any rights relating to personal property, including exercising the Noteright of set-off, the Warrants and the Conversion Shares or all of the equity owners taking or disposing of such entity meet the requirement of at least one of the suitability standards for an "accredited investor" as set forth on the Accredited Investor Certification contained herein, such entity is duly organized, validly existing and in good standing under the laws of the state of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law property with or its charter or other organizational documents, such entity has full power and authority to execute and deliver the Subscription Documents and all other related agreements or certificates and to carry out the provisions hereof and thereof and to acquire and hold the Note, the Warrants and the Conversion Shares, the execution and delivery of the Subscription Documents have been duly authorized by all necessary action, the Subscription Documents have been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; and (iii) if executing this Subscription Agreement in a representative or fiduciary capacity, the undersigned has full power and authority to execute and deliver the Subscription Documents in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or limited liability partnership, or other entity for whom the undersigned is executing the Subscription Documents, and such individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity has full right and power to perform without judicial process pursuant to the Subscription Documents Uniform Commercial Code. Any disputes, claims or controversies concerning the lawfulness or reasonableness of an act, or exercise of any right or remedy concerning any collateral, including any claim to rescind, reform, or otherwise modify any agreement relating to the collateral, shall also be arbitrated; provided, however that no arbitrator shall have the right or the power to enjoin or restrain any act of either party. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction. The statute of limitations, estoppel, waiver, laches and make similar doctrines which would otherwise be applicable in an investment action brought by a party shall be applicable in the Companyany arbitration proceeding, and that the Subscription Documents constitute legalcommencement of an arbitration proceeding shall be deemed the commencement of any action for these purposes. The federal arbitration act (Title 9 of the United States Code) shall apply to the construction, valid interpretation, and binding obligations enforcement of such entitythis arbitration provision.