THE SEC, THERE ARE NO OUTSTANDING, ISSUED OR AUTHORIZED
OPTIONS, WARRANTS, PURCHASE AGREEMENTS, PARTICIPATION AGREEMENTS, SUBSCRIPTION
RIGHTS, CONVERSION RIGHTS, EXCHANGE RIGHTS OR OTHER SECURITIES, CONTRACTS,
ARRANGEMENTS, UNDERSTANDINGS OR COMMITMENTS THAT COULD REQUIRE BORROWER ISSUE,
SELL OR OTHERWISE CAUSE TO BECOME OUTSTANDING ANY OF THEIR RESPECTIVE AUTHORIZED
BUT UNISSUED SHARES OR ANY SECURITIES CONVERTIBLE INTO, EXCHANGEABLE FOR OR
CARRYING A RIGHT OR OPTION TO PURCHASE ANY SHARE, OR TO CREATE, AUTHORIZE,
ISSUE, SELL OR OTHERWISE CAUSE TO BECOME OUTSTANDING ANY NEW CLASS OF STOCK.
EXCEPT FOR THE WARRANTS AND THIS AGREEMENT, THERE ARE NO OUTSTANDING
STOCKHOLDERS' AGREEMENTS, REGISTRATION RIGHTS AGREEMENTS, OR RIGHTS OF FIRST
REFUSAL PERTAINING TO THE SHARES OF BORROWER. NONE OF THE ISSUED AND OUTSTANDING
SHARES OF COMMON STOCK OF BORROWER HAVE BEEN ISSUED IN VIOLATION OF ANY RIGHTS
OF ANY PERSON OR IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF ANY APPLICABLE
SECURITIES LAW.
10
(C)
ALL SHARES AND OTHER SECURITIES ISSUED BY
BORROWER PRIOR TO THE DATE HEREOF HAVE BEEN ISSUED IN ACCORDANCE WITH THE
REQUIREMENTS OF THE SECURITIES ACT, OR IN TRANSACTIONS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT, ALL APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS,
AND ANY SIMILAR LAW, RULE OR REGULATION OF ANY OTHER JURISDICTION.
BORROWER HAS
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE PROVISIONS OF THE
SECURITIES ACT, ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, OR ANY
SIMILAR LAW, RULE OR REGULATION OF ANY OTHER JURISDICTION IN CONNECTION WITH THE
ISSUANCE OF ANY SHARES OR OTHER SECURITIES PRIOR TO THE DATE HEREOF.
4.5.
AUTHORIZATION.
(A)
THE EXECUTION AND DELIVERY BY BORROWER OF
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, AND THE
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER, AS APPLICABLE, HAVE
BEEN DULY AUTHORIZED BY ALL REQUISITE CORPORATE ACTION ON THE PART OF BORROWER,
AND NO FURTHER AUTHORIZATION ON THE PART OF BORROWER IS NECESSARY TO AUTHORIZE
SUCH EXECUTION, DELIVERY AND PERFORMANCE.
(B)
THE ISSUANCE, SALE AND DELIVERY OF THE
WARRANTS AND THE NOTE HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE CORPORATE
ACTION ON THE PART OF BORROWER AND WHEN ISSUED, SOLD AND DELIVERED IN ACCORDANCE
WITH THIS AGREEMENT, WILL BE DULY AND VALIDLY ISSUED AND OUTSTANDING AND NOT
SUBJECT TO PREEMPTIVE OR ANY OTHER SIMILAR RIGHTS OF THE STOCKHOLDERS OF
BORROWER OR OTHERS.
4.6.
No Violations or Conflicts.
The execution and delivery of this Agreement
and the other Loan Documents by Borrower and the performance by it of its
obligations hereunder and thereunder do not and will not (a) violate any
provision of law, statute, rule or regulation, or any Order of any court,
administrative agency or other governmental body applicable to Borrower or any
of its properties or assets, as applicable; (b) conflict with or result in any
breach of any of the terms, conditions or provisions of, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
or give rise to any right of termination, cancellation or acceleration under or
result