Common use of Representations and Warranties of Placement Agent Clause in Contracts

Representations and Warranties of Placement Agent. The Placement Agent represents, warrants and covenants to the Company that: 5.1 The Placement Agent is a member in good standing of the NASDR., and is duly registered as a broker-dealer under the Exchange Act, and under the laws of each state in which we propose to offer the Securities, except where such registration would not be required by law. 5.2 Each purchaser of Securities will execute the Subscription Agreement in the form attached as Exhibit B to the Term Sheet. The Placement Agent will have no reason to believe that the persons executing such Agreement do not have the qualifications set forth therein. 5.3 This Agreement when accepted and approved will be duly authorized, executed and delivered by the Placement Agent and is a valid and binding agreement on its part in accordance with its terms, except as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally. 5.4 The consummation of the transactions contemplated by the Term Sheet related to the offering will not result in any beach of any of the terms or conditions of or constitute a default under any indenture, agreement or other instrument to which the Placement Agent is a party, or violate any order applicable to the Placement Agent of any federal or state regulatory body or administrative agency having jurisdiction over it or its property. 5.5 Until the termination of this Agreement, if any event affecting the Company or the Placement Agent shall occur which, in the opinion of counsel to the Company, should be set forth in a supplement or amendment to the Term Sheet, the Placement Agent agrees to distribute each supplement or amendment to the Term Sheet to each person who has previously received a copy of the Term Sheet from the Company or the Placement Agent and further agrees to include each supplement or amendment in all future deliveries of the Term Sheet. 5.6 In recommending to an investor the purchase of the Securities, the Placement Agent shall: (a) have reasonable grounds to believe, on the basis of information obtained from the investor concerning his investment objectives, other investments, financial situation and needs, any and other information known by it, that: (1) the investor is or will be in a financial position appropriate to enable him to realize to a significant extent the benefits described in the Term Sheet. (2) the investor is an accredited investor and able to sustain the risks inherent in the investment in the Securities, including loss of investment and lack of liquidity; and (3) the investment is otherwise suitable for the investor; and (b) maintain in the Placement Agent's files for a period of six years following the Closing documents disclosing the basis upon which the determination of suitability was reached as to each investor. 5.7 The Placement Agent shall not execute any transaction relating to the Company in a discretionary account without prior written approval of the transaction by the customer. 5.8 The Placement Agent has reasonable grounds to believe, based on information made available to it by the Company through the Term Sheet or other materials, that all material facts are adequately and accurately disclosed and provide a basis for evaluating the Company. 5.9 Prior to executing a purchase transaction the Placement Agent shall inform the prospective investor of all pertinent facts relating to the liquidity and marketability of the Securities during the term of the investment.

Representations and Warranties of Placement Agent. The You, as Placement Agent representsAgent, warrants represent and covenants warrant to the Company that: 5.1 The Placement Agent is (a) You are a member member, in good standing standing, of the NASDR.National Association of Securities Dealers, Inc. ("NASD"), and is are duly registered as a broker-dealer under the Securities Exchange ActAct of 1934, and under the laws of each state in which we you propose to offer the SecuritiesNotes, except where such registration would not be required by law. 5.2 (b) Each purchaser of Securities Notes will execute the Subscription a Note Purchase Agreement substantially in the form attached as Exhibit Appendix B to the Term SheetPPM. The Placement Agent You will have no sufficient reason to believe that the persons executing such the Note Purchase Agreement do not have the qualifications set forth therein. 5.3 (c) This Agreement when accepted and approved will be duly authorized, executed and delivered by the Placement Agent you and is a valid and binding agreement on its part of the Placement Agent, enforceable in accordance with its terms, except as to the extent that enforceability may be limited by general equitable principles, (i) bankruptcy, insolvency, moratorium, liquidation, reorganization, moratorium or other similar laws affecting creditors' rights generally, regardless of whether such enforceability is considered in equity or at law, (ii) general equity principles, and (iii) limitations imposed by federal and state securities laws or the public policy underlying such laws regarding the enforceability of indemnification or contribution provisions. 5.4 (d) The consummation of the transactions contemplated by the Term Sheet related PPM relating to the offering Offering will not result in any beach of any of the terms or conditions of violate or constitute a breach of, or default under under, your articles of incorporation or bylaws, or any indenturematerial instrument, agreement agreement, or other instrument indenture to which the Placement Agent is you are a party, or violate any order applicable to the Placement Agent you of any federal or state regulatory body or administrative agency having jurisdiction over it you or its your property. 5.5 (e) Until the termination of this Agreement, if any event affecting the PPM, the Company or the Placement Agent you shall occur which, in the opinion of counsel to the Company, should be set forth in a supplement or amendment to the Term SheetPPM, the Placement Agent agrees you agree to distribute each supplement or amendment to of the Term Sheet PPM to each person who has previously received a copy of the Term Sheet PPM from the Company or the Placement Agent you and you further agrees agree to include each such supplement or amendment in all future deliveries of the Term SheetPPM. 5.6 In (f) You represent that in recommending to an investor the purchase of the SecuritiesNotes, the Placement Agent you shall: (ai) have reasonable grounds to believe, on the basis of information obtained from the investor concerning his investment objectives, other investments, financial situation and needs, sophistication and experience in making similar investments and any and other information known by ityou, that: (1A) the investor is or will be in a financial position appropriate to enable him to realize to a significant extent invest in the benefits Notes as described in the Term Sheet.PPM; (2B) the investor is an accredited investor and able has a fair market net worth sufficient to sustain the risks inherent in the investment in the SecuritiesNotes, including loss of investment and lack of liquidity; and (3C) the investor meets all suitability requirements contained in the Note Purchase Agreement; and (D) the investment is otherwise suitable for the investor; and (bii) maintain in the Placement Agent's your files for a period of six four years following the Closing Closing, documents disclosing that confirm the basis upon which the determination of suitability was reached as to each investor. 5.7 The Placement Agent (g) Notwithstanding the provisions of subsection 3.(f) above, you shall not execute any transaction relating to an investment in the Company in Notes from a discretionary account without prior written approval of the transaction by the customer. 5.8 The Placement Agent has reasonable grounds (h) You represent that you will not engage in general advertising or general solicitation within the meaning of Rule 502(c) under the 1933 Act, or otherwise engage in any activities which would render unavailable to believethe company an exemption from (i) the registration requirements of the 1933 Act, based on information made available pursuant to it by Section 3(b) or 4(c) thereof or Regulation D thereunder and (ii) the Company through the Term Sheet securities laws of any state or other materials, that all material facts jurisdiction in which the Notes and the Conversion Shares are adequately and accurately disclosed and provide a basis for evaluating the Companyoffered or sold. 5.9 Prior to executing a purchase transaction the Placement Agent shall inform the prospective investor of all pertinent facts relating to the liquidity and marketability of the Securities during the term of the investment.