Common use of Representations of Lender Clause in Contracts

Representations of Lender. 5.1 Lender's representations in this Agreement are complete and accurate to the best of Lender's knowledge, and the Company may rely upon them. 5.2 Lender is able to bear the economic risk of an investment in the Note and the underlying common stock (individually and collectively, the "Securities") can afford the loss of the entire investment in the Securities, and will, after making an investment in the Securities, have sufficient means of providing for Lender's current needs and possible future contingencies. 5.3 The Securities will not be sold by Lender without registration under applicable securities acts or a proper exemption from such registration. 5.4 The Securities subscribed for herein are being acquired for Lender's own account and risk, for investment purposes, and not on behalf of any other person or with a view to, or for resale in connection with, any distribution thereof within the meaning of the Securities Act of 1933. Lender is aware that there are substantial restrictions on the transferability of the Securities. 5.5 Lender has had access to any and all information concerning the Company that Lender and his financial, tax and legal advisors required or considered necessary to make a proper evaluation of this investment. Specifically, Lender has had the opportunity to review the Company's annual report on Form 10-KSB for the fiscal year ended December 31, 2004 and all subsequent filings by the Company with the Securities and Exchange Commission. The Company does not have sufficient assets to repay the Loan and has had minimal operations in past years. In making the decision to acquire the Securities, the Lender and his advisers have relied solely upon their own independent investigations, and fully understand that there are no guarantees, assurances or promises in connection with any investment hereunder and understand that the particular tax consequences arising from this investment in the Company will depend upon his individual circumstances. Lender further understands that no opinion is being given as to any securities or tax matters involving the offering. 5.6 Lender also understands and agrees that stop transfer instructions relating to the Securities will be placed in the Company's transfer ledger, and that the Securities will bear a legend in substantially the following form: THIS SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH ACT. 5.7 Lender knows that the Securities are offered and sold pursuant to exemptions from registration under the Securities Act of 1933, and state securities law based, in part, on these warranties and representations, which are the very essence of this Agreement, and constitute a material part of the bargained-for consideration without which this Agreement would not have been executed. 5.8 Lender has the capacity to protect Lender's own interest in connection with this transaction or has a pre-existing personal or business relationship with the Company or one or more of its officers, directors or controlling persons consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent purchaser to be aware of the character, business acumen and general business and financial circumstances of such person with whom such relationship exists. 5.9 This Agreement when fully executed and delivered by the Company will constitute a valid and legally binding obligation of Lender, enforceable in accordance with its terms. Lender was not formed or organized for the specific purpose of acquiring the Securities. In the event Lender is an entity, the purchase of the Securities by Lender is a permissible investment in accordance with Lender's Articles of Incorporation or other similar charter document, and has been duly approved by all requisite action by the entity's owners, directors, officers or other authorized managers. The person signing this document and all documents necessary to consummate the purchase of the Securities has all requisite authority to sign such documents on behalf of Lender. 5.10 Lender represents that Lender is a sophisticated and an "accredited investor" as defined under Rule 501 of Regulation D.

Representations of Lender. 5.1 Lender's representations in this Agreement are complete Lender hereby represents and accurate warrants to the best of Lender's knowledge, and the Company may rely upon them.Borrower as follows: 5.2 A. Lender is able to bear the economic risk of an investment in the Note and the underlying common stock (individually and collectively, the "Securities") can afford the loss of the entire investment in the Securities, and will, after making an investment in the Securities, have sufficient means of providing for Lender's current needs and possible future contingencies. 5.3 The Securities will not be sold by Lender without registration under applicable securities acts or a proper exemption from such registration. 5.4 The Securities subscribed for herein are being acquired for Lender's own account and risk, for investment purposes, and not on behalf of any other person or with a view to, or for resale in connection with, any distribution thereof within the meaning of the Securities Act of 1933. Lender is aware that there are substantial restrictions on the transferability of the Securities. 5.5 Lender has had access to any and all information concerning the Company that Lender and his financial, tax and legal advisors required or considered necessary to make a proper evaluation of this investment. Specifically, Lender has had the opportunity to review the Company's annual report on Form 10-KSB for the fiscal year ended December 31, 2004 and all subsequent filings by the Company with the Securities and Exchange Commission. The Company does not have sufficient assets to repay the Loan and has had minimal operations in past years. In making the decision to acquire the Securities, the Lender and his advisers have relied solely upon their own independent investigations, and fully understand that there are no guarantees, assurances or promises in connection with any investment hereunder and understand that the particular tax consequences arising from this investment in the Company will depend upon his individual circumstances. Lender further understands that no opinion is being given Accredited Investor as to any securities or tax matters involving the offering. 5.6 Lender also understands and agrees that stop transfer instructions relating to the Securities will be placed in the Company's transfer ledger, and that the Securities will bear a legend in substantially the following form: THIS SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH ACT. 5.7 Lender knows that the Securities are offered and sold pursuant to exemptions from registration defined under the Securities Act of 1933, as amended (the "Act"). Lender has been provided with and state securities law basedreviewed the SEC Filings and has made its own independent due diligence investigation of Borrower; provided, however, that such investigation shall not impact in partany manner Borrower's responsibility for the representations and warranties made hereunder. Lender is qualified to analyze the merits of an investment in Borrower. B. Lender acknowledges that the Term Loans and any Shares received by it upon conversion of the Term Loans and/or Commitments have not been registered under the Act and may not be transferred, on these warranties and representationsassigned or resold unless registered pursuant to the Act or pursuant to an exemption under the Act; provided, which are however, that the very essence of foregoing shall not impact in any manner Borrower's obligations under the Act. C. Lender has entered into this Agreement, issued the Commitments to make the Term Loans and constitute acquired the Conversion rights hereunder without a material part view towards sale or distribution thereof; provided, however, that, as set forth in Section 8.03 hereof, the distribution of any Shares acquired after Conversion of the bargained-for consideration without which this Agreement would not have been executed. 5.8 Lender has Term Loans and/or Commitments shall be in the capacity to protect Lender's own interest in connection with this transaction or has a pre-existing personal or business relationship with the Company or one or more of its officers, directors or controlling persons consisting of personal or business contacts of a nature sole control and duration such as would enable a reasonably prudent purchaser to be aware of the character, business acumen and general business and financial circumstances of such person with whom such relationship exists. 5.9 This Agreement when fully executed and delivered by the Company will constitute a valid and legally binding obligation of Lender, enforceable in accordance with its terms. Lender was not formed or organized for the specific purpose of acquiring the Securities. In the event Lender is an entity, the purchase of the Securities by Lender is a permissible investment in accordance with Lender's Articles of Incorporation or other similar charter document, and has been duly approved by all requisite action by the entity's owners, directors, officers or other authorized managers. The person signing this document and all documents necessary to consummate the purchase of the Securities has all requisite authority to sign such documents on behalf discretion of Lender. 5.10 D. On each date of Conversion of the Term Loans and/or Commitments pursuant to Article X hereof, the representations and warranties of Lender represents that Lender is a sophisticated and an "accredited investor" as defined under Rule 501 of Regulation D.contained in this Article XI shall be deemed repeated.

Representations of Lender. 5.1 Lender hereby represents and warrants to Borrower as follows: (a) Lender understands that the investment in the Promissory Note (and the securities issued hereunder and issuable on conversion of the Promissory Note) is a speculative investment and represents that Lender is aware of the business affairs and financial condition of Borrower and has acquired sufficient information about Borrower to reach an informed and knowledgeable decision to acquire the Promissory Note. Moreover Lender acknowledges that the Promissory Note is being acquired for investment for Lender's representations in this Agreement are complete own account, not as a nominee or agent, and accurate not with a view to the best resale or distribution of any part thereof, and that Lender has no present intention of selling, granting any participation in, or otherwise distributing the same. Lender further understands that the Promissory Note has not been registered under the Securities Act of 1933, as amended (the "Act"), or applicable state securities laws by reason of specific exemptions therefrom, which exemptions depend on, among other things, the bona fide nature of Lender's knowledge, and the Company may rely upon theminvestment intent as expressed herein. 5.2 (b) Lender acknowledges that he has received and reviewed the Promissory Note and all the information Lender considers necessary or appropriate for deciding whether to make the investment contemplated herein and accept the Promissory Note. Lender further represents that Lender has had an opportunity to ask questions and receive answers from Borrower regarding the business, properties, prospects and financial condition of Borrower. (c) Lender is able to an investor in securities of companies in the development stage and acknowledges that he can bear the economic risk of an investment in the Note and the underlying common stock (individually and collectively, the "Securities") can afford the loss of the entire investment in the Securitiesits investment, and will, after making an investment has such knowledge and experience in financial or business matters that he is capable of evaluating the Securities, have sufficient means merits and risks of providing for Lender's current needs and possible future contingenciesthis investment. 5.3 The Securities will not be sold by (d) Lender without registration under applicable securities acts or a proper exemption from such registration. 5.4 The Securities subscribed for herein are being acquired for Lender's own account and risk, for investment purposes, and not on behalf of any other person or with a view to, or for resale in connection with, any distribution thereof is an "accredited investor" within the meaning of the Securities Act of 1933. Lender is aware that there are substantial restrictions on the transferability of the Securities. 5.5 Lender has had access to any and all information concerning the Company that Lender and his financial, tax and legal advisors required or considered necessary to make a proper evaluation of this investment. Specifically, Lender has had the opportunity to review the Company's annual report on Form 10-KSB for the fiscal year ended December 31, 2004 and all subsequent filings by the Company with the U.S. Securities and Exchange Commission. The Company does Commission ("SEC") Rule 501 of Regulation D, as presently in effect. (e) Lender understands that the securities issuable on conversion of the Promissory Note will be characterized as "restricted securities" under the United States federal securities laws inasmuch as they would be acquired from Borrower in a transaction not have sufficient assets to repay involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Loan and has had minimal operations Act only in past yearscertain limited circumstances. In making this connection, Lender represents that Lender is familiar with SEC Rule 144, as presently in effect, and understands the decision resale limitations imposed thereby and by the Act. Lender understands and acknowledges that Borrower has no obligation to acquire insure that Lender will be afforded the Securitiesrights set forth in Rule 144, and specifically acknowledges that Borrower will have no obligation to insure that public information is available with respect to Borrower. (f) It is understood that the certificates evidencing the securities issuable hereunder and upon conversion of the Promissory Note may bear , inter alia, the Lender and his advisers have relied solely upon their own independent investigations, and fully understand that there are no guarantees, assurances or promises in connection with any investment hereunder and understand that the particular tax consequences arising from this investment in the Company will depend upon his individual circumstances. Lender further understands that no opinion is being given as to any securities or tax matters involving the offering. 5.6 Lender also understands and agrees that stop transfer instructions relating to the Securities will be placed in the Company's transfer ledger, and that the Securities will bear a legend in substantially the following formlegend: THIS "THESE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDEDAMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE THE SECURITIES UNDER SUCH THE ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH THE ACT. 5.7 Lender knows that the Securities are offered and sold pursuant to exemptions from registration under the Securities Act of 1933, and state securities law based, in part, on these warranties and representations, which are the very essence of this Agreement, and constitute a material part of the bargained-for consideration without which this Agreement would not have been executed. 5.8 Lender has the capacity to protect Lender's own interest in connection with this transaction or has a pre-existing personal or business relationship with the Company or one or more of its officers, directors or controlling persons consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent purchaser to be aware of the character, business acumen and general business and financial circumstances of such person with whom such relationship exists. 5.9 This Agreement when fully executed and delivered by the Company will constitute a valid and legally binding obligation of Lender, enforceable in accordance with its terms. Lender was not formed or organized for the specific purpose of acquiring the Securities. In the event Lender is an entity, the purchase of the Securities by Lender is a permissible investment in accordance with Lender's Articles of Incorporation or other similar charter document, and has been duly approved by all requisite action by the entity's owners, directors, officers or other authorized managers. The person signing this document and all documents necessary to consummate the purchase of the Securities has all requisite authority to sign such documents on behalf of Lender. 5.10 Lender represents that Lender is a sophisticated and an "accredited investor" as defined under Rule 501 of Regulation D.

Representations of Lender. 5.1 Lender's representations in Lender represents and warrants to the Borrower that: (a) Lender is acting for its own account, and has made its own independent decision to enter into the Agreement and as to whether the Agreement is appropriate or proper for it based upon its own judgment and upon advice of such advisors as it deems necessary. Lender acknowledges and agrees that it is not relying, and has not relied, upon any communication (written or oral) of Borrower or any affiliate of Borrower with respect to the legal, accounting, tax or other implications of the Agreement and that it has conducted its own analyses of the legal, accounting, tax and other implications of the Agreement; it being understood that information and explanations related to the terms and conditions of the Agreement shall not be considered investment advice or a recommendation to enter into the Agreement. The Lender hereby represents that it has consulted its own legal, tax and accounting advisors with respect to any legal, tax or accounting implications of the Agreement, has consulted ▇▇▇▇▇ ▇▇▇▇ LLP with respect to any tax implications of this Agreement are complete and accurate has not relied on Borrower or any of its affiliates in any manner with respect to the best legal, tax or accounting implications of the Agreement. The foregoing representations and warranties are in addition to Lender's knowledge’s representations contained in Section 10.2 and 10.3 of the Agreement. (b) Lender is entering into the Agreement with a full understanding of all of the terms and risks of the Agreement (economic and otherwise) and is capable of evaluating and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks. Lender is also capable of assuming (financially and otherwise), and assumes, those risks. (c) Lender acknowledges that neither Borrower nor any affiliate of Borrower is acting as a fiduciary for or an advisor to Lender in respect of the Agreement. 4. Section 10.6 of the Agreement is hereby amended by adding the following at the end of the sentence: “For the avoidance of doubt, the Securities borrowed by Borrower from Lender that are held by Borrower pursuant the Pledge Agreement shall continue to be “Eligible Collateral” as defined in the Pledge Agreement. 5. Section 11.1(b) of the Agreement shall be deleted in its entirety. 6. A new Section 28 is added to the Agreement as follows: 28. Netting and Set-off (a) If on any date cash would otherwise be payable or Shares (as defined in the Confirmation between Lender and Borrower dated as of March 22, 2006 and the Supplemental Confirmation dated April 19, 2006, (Reference: NY-22087) setting forth the terms and conditions of a forward transaction between the parties, as amended from time to time (together with the Agreement, as defined therein, the “Transaction Agreement”)), or other property would otherwise be deliverable, pursuant to the Agreement, the Transaction Agreement or the Pledge Agreement by and between Lender and Borrower dated as of March 22, 2006, as amended from time to time (the “Pledge Agreement”), by Borrower to Lender and by Lender to Borrower and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation upon the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount. (b) In addition to and without limiting any termination rights and rights of set-off that a party to the Agreement may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Event of Default, Additional Event of Default, Termination Event or Additional Termination Event (each as defined in the Transaction Agreement) or an event giving rise to a payment obligation under the Transaction Agreement pursuant to Section 9.7 of the Equity Definitions (as defined in the Transaction Agreement), Borrower shall have the right to terminate, liquidate and otherwise close out the transactions contemplated by the Agreement, the Transaction Agreement, each outstanding Confirmation (as defined in the Transaction Agreement) and the Pledge Agreement pursuant to the terms hereof and thereof, and to set off any obligation that Borrower or any affiliate of Borrower may have to Lender, including without limitation any obligation to make any release, delivery or payment to Lender pursuant to the Pledge Agreement or the Agreement, against any right Borrower or any of its affiliates may have against Lender, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement or the Transaction Agreement. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by Borrower and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by Borrower) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares (as defined in the Transaction Agreement) or right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time. If an obligation or right is unascertained at the time of any such set-off, Borrower may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the Company may rely upon them. 5.2 Lender is able to bear the economic risk of an investment in the Note and the underlying common stock (individually and collectively, the "Securities") can afford the loss of the entire investment in the Securities, and will, after making an investment in the Securities, have sufficient means of providing for Lender's current needs and possible future contingencies. 5.3 The Securities will not be sold by Lender without registration under applicable securities acts or a proper exemption from such registration. 5.4 The Securities subscribed for herein are being acquired for Lender's own relevant party shall account and risk, for investment purposes, and not on behalf of any other person or with a view to, or for resale in connection with, any distribution thereof within the meaning of the Securities Act of 1933. Lender is aware that there are substantial restrictions on the transferability of the Securities. 5.5 Lender has had access to any and all information concerning the Company that Lender and his financial, tax and legal advisors required or considered necessary to make a proper evaluation of this investment. Specifically, Lender has had the opportunity to review the Company's annual report on Form 10-KSB for the fiscal year ended December 31, 2004 and all subsequent filings by the Company with the Securities and Exchange Commission. The Company does not have sufficient assets to repay the Loan and has had minimal operations in past years. In making the decision to acquire the Securities, the Lender and his advisers have relied solely upon their own independent investigations, and fully understand that there are no guarantees, assurances or promises in connection with any investment hereunder and understand that the particular tax consequences arising from this investment in the Company will depend upon his individual circumstances. Lender further understands that no opinion is being given as to any securities or tax matters involving the offering. 5.6 Lender also understands and agrees that stop transfer instructions relating to the Securities will be placed in other party at the Company's transfer ledger, and that the Securities will bear a legend in substantially the following form: THIS SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF SUCH ACTtime such obligation or right is ascertained. 5.7 Lender knows that the Securities are offered and sold pursuant to exemptions from registration under the Securities Act of 1933, and state securities law based, in part, on these warranties and representations, which are the very essence of this Agreement, and constitute a material part of the bargained-for consideration without which this Agreement would not have been executed. 5.8 Lender has the capacity to protect Lender's own interest in connection with this transaction or has a pre-existing personal or business relationship with the Company or one or more of its officers, directors or controlling persons consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent purchaser to be aware of the character, business acumen and general business and financial circumstances of such person with whom such relationship exists. 5.9 This Agreement when fully executed and delivered by the Company will constitute a valid and legally binding obligation of Lender, enforceable in accordance with its terms. Lender was not formed or organized for the specific purpose of acquiring the Securities. In the event Lender is an entity, the purchase of the Securities by Lender is a permissible investment in accordance with Lender's Articles of Incorporation or other similar charter document, and has been duly approved by all requisite action by the entity's owners, directors, officers or other authorized managers. The person signing this document and all documents necessary to consummate the purchase of the Securities has all requisite authority to sign such documents on behalf of Lender. 5.10 Lender represents that Lender is a sophisticated and an "accredited investor" as defined under Rule 501 of Regulation D.