THE NOTE SHARES AND THE WARRANT
SHARES HAVE BEEN DULY AND VALIDLY RESERVED FOR ISSUANCE.
WHEN ISSUED IN
COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT, THE CHARTER, THE NOTE AND THE
WARRANTS, THE SECURITIES WILL BE VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE,
AND WILL BE FREE OF ANY LIENS OR ENCUMBRANCES; PROVIDED, HOWEVER, THAT THE
SECURITIES MAY BE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER STATE AND/OR FEDERAL
SECURITIES LAWS AS SET FORTH HEREIN OR AS OTHERWISE REQUIRED BY SUCH LAWS AT THE
TIME A TRANSFER IS PROPOSED.
(D)
AUTHORIZATION; BINDING OBLIGATIONS.
ALL
CORPORATE, PARTNERSHIP OR LIMITED LIABILITY COMPANY, AS THE CASE MAY BE, ACTION
ON ITS AND ITS SUBSIDIARIES' PART (INCLUDING THEIR RESPECTIVE OFFICERS AND
DIRECTORS) NECESSARY FOR THE AUTHORIZATION OF THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS, THE PERFORMANCE OF ALL OF ITS AND ITS SUBSIDIARIES' OBLIGATIONS
HEREUNDER AND UNDER THE ANCILLARY AGREEMENTS ON THE CLOSING DATE AND, THE
AUTHORIZATION, ISSUANCE AND DELIVERY OF THE NOTES AND THE WARRANT HAS BEEN TAKEN
OR WILL BE TAKEN PRIOR TO THE CLOSING DATE.
THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS, WHEN EXECUTED AND DELIVERED AND TO THE EXTENT IT IS A PARTY THERETO,
WILL BE ITS AND ITS SUBSIDIARIES' VALID AND BINDING OBLIGATIONS ENFORCEABLE
AGAINST EACH SUCH PERSON IN ACCORDANCE WITH THEIR TERMS, EXCEPT:
(I)
AS LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS; AND
(II)
GENERAL PRINCIPLES OF EQUITY THAT RESTRICT
THE AVAILABILITY OF EQUITABLE OR LEGAL REMEDIES.
The issuance of the Notes and the subsequent conversion of the Notes into Note
Shares are not and will not be subject to any preemptive rights or rights of
first refusal that have not been properly waived or complied with.
The issuance
of the Warrants and the subsequent exercise of the Warrants for Warrant Shares
are not and will not be subject to any preemptive rights or rights of first
refusal that have not been properly waived or complied with.
(E)
LIABILITIES.
IT HAS NO LIABILITIES, EXCEPT
CURRENT LIABILITIES INCURRED IN THE ORDINARY COURSE OF BUSINESS, LIABILITIES
DISCLOSED IN ANY EXCHANGE ACT FILINGS AND LIABILITIES NOT REQUIRED TO BE
DISCLOSED IN ANY EXCHANGE ACT FILINGS BECAUSE OF THE SIZE OR NATURE THEREOF.
(F)
AGREEMENTS; ACTION.
EXCEPT AS SET FORTH
ON SCHEDULE 12(F) OR AS DISCLOSED IN ANY EXCHANGE ACT FILINGS:
(I)
THERE ARE NO AGREEMENTS, UNDERSTANDINGS,
INSTRUMENTS, CONTRACTS, PROPOSED TRANSACTIONS, JUDGMENTS, ORDERS, WRITS OR
DECREES TO WHICH IT OR ANY OF ITS SUBSIDIARIES IS
14
A PARTY OR TO ITS KNOWLEDGE BY WHICH IT IS BOUND WHICH MAY INVOLVE:
(I) OBLIGATIONS (CONTINGENT OR OTHERWISE) OF, OR PAYMENTS TO, IT OR ANY OF ITS
SUBSIDIARIES IN EXCESS OF $50,000 (OTHER THAN OBLIGATIONS OF, OR PAYMENTS TO, IT
OR ANY OF ITS SUBSIDIARIES ARISING FROM (1) PURCHASE OR SALE AGREEMENTS ENTERED
INTO IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE) AND/OR
(2) AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS IN CONNECTION
WITH TRANSPORTATION, FREIGHT FORWARDING OR OTHER VALUE ADDED SERVICES PURCHASED