EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN
EARLIER DATE.
ALL OF THE CERTIFICATES AND OTHER DOCUMENTS AND PAPERS REFERRED TO IN THIS
SECTION 4, UNLESS OTHERWISE SPECIFIED, SHALL BE DELIVERED TO THE COMPANY AND
SHALL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY.
5.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
IN ORDER TO INDUCE THE NOTEHOLDERS TO ENTER INTO THIS AGREEMENT AND TO
ACQUIRE THE WARRANTS, THE COMPANY MAKES THE FOLLOWING REPRESENTATIONS AND
WARRANTIES, ALL OF WHICH SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE ACQUISITION OF THE WARRANTS:
5.1.
CORPORATE STATUS.
THE COMPANY AND EACH OF ITS
SUBSIDIARIES (A) IS A DULY ORGANIZED AND VALIDLY EXISTING CORPORATION IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION AND HAS THE
CORPORATE POWER AND AUTHORITY TO OWN ITS PROPERTY AND ASSETS AND TO TRANSACT THE
BUSINESS IN WHICH IT IS ENGAGED AND PRESENTLY PROPOSES TO ENGAGE AND (B) HAS
DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING IN EACH JURISDICTION WHERE
IT IS REQUIRED TO BE SO QUALIFIED AND WHERE THE FAILURE TO BE SO QUALIFIED IS
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
5.2.
CORPORATE POWER AND AUTHORITY.
THE COMPANY
HAS THE CORPORATE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS UNDER EACH OF THE DOCUMENTS TO WHICH IT
8
IS A PARTY AND HAS TAKEN ALL NECESSARY CORPORATE ACTION TO AUTHORIZE THE
EXECUTION, DELIVERY AND PERFORMANCE OF THE DOCUMENTS TO WHICH IT IS A PARTY. THE
COMPANY HAS DULY EXECUTED AND DELIVERED TO THE NOTEHOLDERS EACH DOCUMENT TO
WHICH IT IS A PARTY AND EACH SUCH DOCUMENT CONSTITUTES THE LEGAL, VALID AND
BINDING OBLIGATION OF SUCH PERSON ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
5.3.
NO VIOLATION.
NEITHER THE EXECUTION, DELIVERY
AND PERFORMANCE BY THE COMPANY OF THE DOCUMENTS TO WHICH IT IS A PARTY NOR
COMPLIANCE WITH THE TERMS AND PROVISIONS THEREOF (A) WILL CONTRAVENE ANY
APPLICABLE PROVISION OF ANY LAW, STATUTE, RULE, REGULATION, ORDER, WRIT,
INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL INSTRUMENTALITY, EXCEPT AS
WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, (B) WILL CONFLICT OR BE INCONSISTENT
WITH OR RESULT IN ANY BREACH OF, ANY OF THE MATERIAL TERMS, COVENANTS,
CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER, OR RESULT IN THE
CREATION OR IMPOSITION OF (OR THE OBLIGATION TO CREATE OR IMPOSE) ANY LIEN UPON
ANY OF THE PROPERTY OR ASSETS OF THE COMPANY PURSUANT TO THE TERMS OF, ANY
INDENTURE, MORTGAGE, DEED OF TRUST, AGREEMENT OR OTHER INSTRUMENT TO WHICH SUCH
PERSON IS A PARTY OR BY WHICH IT OR ANY OF ITS PROPERTY OR ASSETS ARE BOUND OR
TO WHICH IT MAY BE SUBJECT OR (C) WILL VIOLATE ANY PROVISION OF THE CERTIFICATE
OF INCORPORATION, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENT OF THE COMPANY.
5.4.
CAPITALIZATION. THE AUTHORIZED CAPITAL STOCK
OF THE COMPANY CONSISTS OF 85,000,000 SHARES OF COMMON STOCK, OF WHICH
45,881,329 ARE ISSUED AND OUTSTANDING, AND 15,000,000 SHARES OF UNDESIGNATED
PREFERRED STOCK, $0.001 PAR