in the creation of any Encumbrances upon any of the properties or assets
of Borrower under, (i) Borrower's organizational documents, or (ii) any note,
indenture, mortgage, lease agreement, permit, license, grant of authority or
other contract, agreement or instrument to which Borrower is a party or by which
Borrower or any of its properties is bound or affected, except where any such
violation, conflict, breach or suspension described in this subsection would
not, individually or in the aggregate, result in a Material Adverse Effect.
4.7.
Consents and Approvals.
Except as set forth on Schedule 4.7
(collectively, the "Required Consents"), and except for filings required by
applicable securities laws, no consent, approval or authorization of, or
declaration to or filing or registration with, any Governmental Authority or
other Person, is required to be made or obtained by Borrower in connection with
the valid execution, delivery and performance of this Agreement and the other
Loan Documents, including the issuance, sale and delivery of the Warrants and
the shares issuable thereunder.
4.8.
FINANCIAL STATEMENTS; DISCLOSURE.
(A)
BORROWER HAS DELIVERED TO LENDER TRUE,
COMPLETE AND CORRECT COPIES OF THE CONSOLIDATED BALANCE SHEET ("BALANCE SHEET")
OF BORROWER AS OF DECEMBER 31, 2006 ("BALANCE SHEET DATE") AND THE RELATED
STATEMENTS OF OPERATIONS AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED (THE
"FINANCIAL STATEMENTS").
THE FINANCIAL STATEMENTS FAIRLY AND ACCURATELY PRESENT
IN ALL MATERIAL RESPECTS THE FINANCIAL POSITION, LIABILITIES AND OBLIGATIONS AND
THE RESULTS OF OPERATIONS AS OF THE DATES AND FOR THE PERIODS INDICATED, AND IN
ACCORDANCE WITH GAAP.
EXCEPT AS DISCLOSED ON THE BALANCE SHEET OR THE FINANCIAL
STATEMENTS OR ON SCHEDULE 4.8(A), AS OF THE BALANCE SHEET DATE AND THE DATE
HEREOF (X) BORROWER HAS HAD NO OR HAS NO LIABILITIES (WHETHER MATURED OR
UNMATURED, FIXED OR CONTINGENT, LIQUIDATED
11
OR UNLIQUIDATED OR OTHERWISE), OR OBLIGATIONS, EXCEPT AS MAY HAVE BEEN INCURRED
IN THE ORDINARY COURSE OF BUSINESS FOLLOWING THE BALANCE SHEET DATE, AND (Y)
BORROWER HAD OR HAS RESERVED OR DISCLOSED ALL LIABILITY RESERVES THAT ARE
REQUIRED TO BE RESERVED OR DISCLOSED IN ACCORDANCE WITH GAAP.
(B)
NONE OF THE INFORMATION (FINANCIAL OR
OTHERWISE) FURNISHED BY OR ON BEHALF OF BORROWER TO LENDER HEREUNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO
STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS CONTAINED HEREIN OR
THEREIN NOT MISLEADING IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH SUCH
STATEMENTS WERE MADE.
EXCEPT AS SET FORTH ON SCHEDULE 4.8(B), TO THE KNOWLEDGE
OF BORROWER, THERE ARE NO FACTS THAT COULD RESULT, INDIVIDUALLY OR IN THE
AGGREGATE, IN A MATERIAL ADVERSE EFFECT AND HAVE NOT BEEN SET FORTH IN THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR IN OTHER DOCUMENTS DELIVERED TO LENDER
IN CONNECTION HEREWITH.
4.9.
Absence of Changes.
Except as set forth on Schedule 4.9, since the
Balance Sheet Date to the date hereof and other than pursuant to transactions
contemplated by this Agreement and