FOREIGN
CORPORATION AND IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH THE NATURE OF
THE BUSINESS TRANSACTED BY IT OR THE CHARACTER OF THE PROPERTIES OWNED OR LEASED
BY IT REQUIRES SUCH LICENSING OR QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE
SO LICENSED OR QUALIFIED DOES NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
COMPANY'S BUSINESS OR FINANCIAL CONDITION. THE COMPANY HAS THE CORPORATE POWER
AND AUTHORITY TO OWN AND HOLD ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW
CONDUCTED AND AS PROPOSED TO BE CONDUCTED, TO EXECUTE, DELIVER AND PERFORM THIS
AGREEMENT AND THE SECURITY AND PLEDGE AGREEMENTS, AND TO ISSUE, SELL AND DELIVER
THE NOTES AND THE WARRANTS.
(B)
THE COMPANY HAS NO SUBSIDIARIES, OTHER THAN
AS SET FORTH ON SCHEDULE IV. THE COMPANY DOES NOT (I) OWN OF RECORD OR
BENEFICIALLY, DIRECTLY OR INDIRECTLY, (A) ANY SHARES OF CAPITAL STOCK OR
SECURITIES CONVERTIBLE INTO CAPITAL STOCK OF ANY OTHER CORPORATION OR (B) ANY
PARTICIPATING INTEREST IN ANY PARTNERSHIP, JOINT VENTURE OR OTHER NON-CORPORATE
BUSINESS ENTERPRISE OR (II) CONTROL, DIRECTLY OR INDIRECTLY, ANY OTHER ENTITY,
OTHER THAN AS SET FORTH ON SCHEDULE IV.
SECTION 2.02.
AUTHORIZATION OF AGREEMENTS,
ETC.
(A)
THE EXECUTION AND DELIVERY BY THE COMPANY
OF THIS AGREEMENT AND THE SECURITY AND PLEDGE AGREEMENTS, THE PERFORMANCE BY THE
COMPANY OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER, THE ISSUANCE, SALE AND
DELIVERY OF THE NOTES AND THE WARRANTS HAVE BEEN DULY AUTHORIZED BY ALL
REQUISITE CORPORATE ACTION AND WILL NOT (I) VIOLATE ANY PROVISION OF LAW, ANY
ORDER OF ANY COURT OR OTHER AGENCY OF GOVERNMENT, (II) VIOLATE THE CERTIFICATE
OF INCORPORATION OR THE BY-LAWS OF THE COMPANY, EACH AS AMENDED, (III) VIOLATE
ANY PROVISION OF ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT TO WHICH THE
COMPANY OR ANY OF ITS PROPERTIES OR ASSETS IS BOUND, (IV) CONFLICT WITH, RESULT
IN A BREACH OF OR CONSTITUTE (WITH DUE NOTICE OR LAPSE OF TIME OR BOTH) A
DEFAULT UNDER ANY SUCH INDENTURE, AGREEMENT OR OTHER INSTRUMENT, OR (V) RESULT
IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE, RESTRICTION, CLAIM OR
ENCUMBRANCE OF ANY NATURE WHATSOEVER UPON ANY OF THE PROPERTIES OR ASSETS OF THE
COMPANY, EXCEPT IN THE CASE OF CLAUSES (I), (III), (IV) AND (V), AS WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE COMPANY.
(B)
THE NOTES AND THE WARRANTS HAVE BEEN DULY
AUTHORIZED AND, WHEN ISSUED IN ACCORDANCE WITH THIS AGREEMENT, WILL BE FREE AND
CLEAR OF ALL LIENS, CHARGES, RESTRICTIONS, CLAIMS AND ENCUMBRANCES IMPOSED BY OR
THROUGH THE COMPANY. EXCEPT AS SET FORTH ON SCHEDULE IV, THE ISSUANCE, SALE AND
DELIVERY OF THE NOTES AND THE WARRANTS ARE NOT SUBJECT TO ANY PREEMPTIVE RIGHT
OF SHAREHOLDERS OF THE COMPANY OR TO ANY RIGHT OF FIRST REFUSAL OR OTHER RIGHT
IN FAVOR OF ANY PERSON.
SECTION 2.03.
VALIDITY. EACH OF THIS
AGREEMENT, THE SECURITY AND PLEDGE AGREEMENTS AND THE NOTES AND THE WARRANTS
HAVE BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTE THE LEGAL,
VALID AND BINDING OBLIGATIONS OF THE