NON-ASSESSABLE.
THERE ARE NOT OUTSTANDING
ANY OPTIONS TO PURCHASE, OR ANY RIGHTS OR WARRANTS TO SUBSCRIBE FOR, OR ANY
COMMITMENTS OR AGREEMENTS TO ISSUE OR SELL, OR ANY SECURITIES OR OBLIGATIONS
CONVERTIBLE INTO, OR ANY POWERS OF ATTORNEY RELATING TO, SHARES OF THE CAPITAL
STOCK OF BORROWER, EXCEPT AS SET FORTH ON SCHEDULE 4.4.
EXCEPT AS SET FORTH ON
SCHEDULE 4.4, THERE ARE NO OUTSTANDING AGREEMENTS OR INSTRUMENTS KNOWN TO
BORROWER THAT ARE BINDING UPON ANY OF BORROWER'S SHAREHOLDERS RELATING TO THE
OWNERSHIP OF ITS SHARES OF CAPITAL STOCK.
4.5
BINDING OBLIGATIONS.
THIS AGREEMENT DOES, AND THE OTHER LOAN
DOCUMENTS TO WHICH BORROWER IS A PARTY UPON THEIR CREATION, ISSUANCE, EXECUTION
AND DELIVERY WILL, CONSTITUTE VALID AND BINDING OBLIGATIONS OF BORROWER,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS EXCEPT TO THE EXTENT THAT SUCH
ENFORCEMENT MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY AND OTHER
SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY OR BY PRINCIPLES OF EQUITY
PERTAINING TO THE AVAILABILITY OF EQUITABLE REMEDIES.
4.6
NO LEGAL BAR; NO LIEN.
(A)
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS TO WHICH
BORROWER IS A PARTY DO NOT AND WILL NOT VIOLATE ANY PROVISIONS OF ITS
CERTIFICATE OF FORMATION OR BY-LAWS, OR ANY CONTRACT, AGREEMENT, INSTRUMENT OR
GOVERNMENTAL REQUIREMENT TO WHICH BORROWER IS SUBJECT.
(B)
NEITHER THE EXECUTION, DELIVERY, NOR PERFORMANCE OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS SHALL CREATE, OR CONSTITUTE CAUSE FOR THE CREATION
OF, ANY LIEN ON ANY ASSET OF BORROWER, OTHER THAN THE LIENS GRANTED IN FAVOR OF
LENDER.
4.7
NO CONSENT.
EXCEPT FOR THE CONSENT OF THE SBA PROVIDED UNDER THE
MULTI-PARTY AGREEMENT, BORROWER'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND EACH OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY DO NOT REQUIRE
THE CONSENT OR APPROVAL OF ANY OTHER PERSON (UNLESS SUCH CONSENT HAS OTHERWISE
BEEN OBTAINED), INCLUDING ANY REGULATORY AUTHORITY OR GOVERNMENTAL BODY OF THE
UNITED STATES OF AMERICA OR ANY STATE THEREOF OR ANY POLITICAL SUBDIVISION OF
THE UNITED STATES OF AMERICA OR ANY STATE THEREOF.
4.8
LIABILITIES; LITIGATION.
BORROWER DOES NOT HAVE, AS OF THE
CLOSING DATE, ANY MATERIAL (INDIVIDUALLY OR IN THE AGGREGATE) LIABILITIES,
DIRECT OR CONTINGENT, EXCEPT AS DISCLOSED IN SCHEDULE 4.8.
EXCEPT AS DISCLOSED
IN SCHEDULE 4.8, AS OF THE CLOSING DATE, THERE IS NO LITIGATION, LEGAL,
ADMINISTRATIVE OR ARBITRAL PROCEEDING, INVESTIGATION OR OTHER ACTION OF ANY
NATURE PENDING
32
OR, TO THE ACTUAL KNOWLEDGE OF BORROWER, THREATENED AGAINST OR AFFECTING
BORROWER THAT COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
CHANGE.
4.9
TAXES; GOVERNMENTAL CHARGES.
AS OF THE CLOSING DATE OR THE DATE
EACH ADVANCE IS REQUESTED BY BORROWER, AS APPLICABLE,
BORROWER HAS FILED ALL
TAX RETURNS AND REPORTS REQUIRED TO BE FILED PRIOR TO SUCH DATE AND HAS PAID ALL
TAXES, ASSESSMENTS, FEES AND OTHER GOVERNMENTAL CHARGES LEVIED UPON IT OR ITS
INCOME WHICH ARE DUE AND PAYABLE, INCLUDING INTEREST AND PENALTIES, OR HAS
PROVIDED ADEQUATE RESERVES FOR THE PAYMENT THEREOF.
4.10
DEFAULTS.
BORROWER IS NOT IN DEFAULT NOR HAS ANY EVENT