MAXIM OIL & GAS, INC.
LOAN AGREEMENT
MAXIM OIL 84
GAS, INC.
9400
GROGAN'S MILL ROAD, SUITE 205 •:.THE WOODLANDS, TX
77380
PHONE:
281.466.1530 FAX: 281.466.1531 -,..
www.maximtep.com
FIRST AMENDED
AND RESTATED LOAN AGREEMENT
This FIRST AMENDED AND RESTATED LOAN
AGREEMENT dated as of June 30, 2009 (this
"Agreement") is entered into by and between MAXIM
TEP, INC., a Texas corporation dlb/a Maxim Oil & Gas, Inc.
"Borrower" or the "Company"), and
GREATER EUROPE FUND LIMITED ("Lender"), a limited
liability company organized and existing under the laws of Jersey,
with its registered office at Kleinwort Benson House, PO Box 76,
Wests Centre, St, Helier, Jersey, JE4 8PQ, Channel Islands.
Borrower and Lender may be referred to herein collectively as the
"Parties" and individually as a
"Party."
WHEREAS, the Parties desire to amend
and restate that certain Loan Agreement dated as of March 20, 2009
by and between Borrower and Lender (the "Original
Agreement");
WHEREAS, the Original Agreement
provides for an uncommitted credit facility under which Lender has
not extended any loans to Borrower;
WHEREAS, Borrower has requested that
Lender extend a Loan to Borrower in a total aggregate principal
amount of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,500,000.00) (the "Loan Amount");
WHEREAS, Lender, in reliance upon
the representations of Borrower in this Agreement, has agreed to
extend the Loan Amount to Borrower upon the terms and conditions
hereinafter set forth.
NOW,'THEREFORE, the Parties hereby
amend and restate the Original Agreement in its entirety and agree
as follows:
ARTICLE I
DEFINITIONS
Definitions. As used in this
Agreement, the following terms shall have the meaning set forth
below:
"Act of Partial
Release" has the
meaning set forth in 4.1(a)(ii).
"Agreement"
has the meaning set forth in the
preamble hereto.
"Applicable
Law" means the Law in
effect from time to time and applicable to the transactions between
Lender and Borrower pursuant to this Agreement and which lawfully
permits the charging and collection of the highest permissible
lawful non-usurious rate of interest on such
transactions.
"Applicable
Rate" means a per
annum rate of interest, computed on the basis of the actual number
of days elapsed (including the first but excluding the last day)
over a year of 365 or 366 days, as the case may be, equal to
fifteen percent (15%).
"Assignment of Overriding Royalty
Interest" has the
meaning set forth in 4.1(a)(vi).
"Balloon Payment" has the meaning set forth in Section
5.21.
"Bankruptcy Code" means the U.S. Bankruptcy Code of 1978, as
amended from time to time.
"Borrower" has the meaning set forth in the preamble
hereto.
"Business Day"
means any day on which banks are
open for general banking business in the State of Texas, other than
on Saturday, Sunday, a legal holiday, or any other day on which
banks in the State of Texas are required or authorized by Law or
executive order to close.
"Closing Shares" has the meaning set forth in Section
2.7(a).
"Common Stock" means shares of common stock, par value
¶0.00001 per share, of Borrower.
"Default Percentage
Merest" means the
percentage of all of the issued and outstanding shares of capital
stock of Borrower computed on a fully diluted basis (as if all
instruments convertible into or exchangeable for Common Stock are
so converted or exchanged) represented by the Default Shares as of
the date of this Agreement.
"Default Rate"
means the lesser of (a) the
Applicable Rate plus 3%, and (b) the Maximum Rate.
"Default
Shares" means
30,000,000 shares of Common Stock, as such number may be increased
pursuant to Section 5.17.
"Delhi Field"
means the oil and gas leasehold
interest described in Annex A hereto insofar as such
leasehold interests cover the Mengel sand.
"Diluting Event" has the meaning set forth in Section
5.17.
"Equity
Interest" means (a)
with respect to a corporation, any and all, shares of capital stock
of such corporation, (b) with respect to a partnership, limited
liability company, trust, or similar Person, any and all units,
interests, or other partnership/limited liability company
interests, and (c) any other direct or indirect equity ownership or
participation in a Person.
"Environmental
Laws" shall mean all
applicable laws, regulations, enforceable requirements that have
the effect of law, orders, decrees, judgments or injunctions
issued, promulgated or entered into by any governmental authority
pertaining to the protection of human health or the environment,
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act, 42 U.S.C. § 9601
et seq., the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the
Federal Water Pollution Control Act, as amended by the Clean Water
Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C.
§ 7401 et seq., the Toxic Substances Control Act, 15
U.S.C. § 2601 et seq., and any similar state or local
statutes.
"Event of Default" has the meaning set forth in Section
6.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"GAAP"
means generally accepted accounting
principles in the United States, as amended and in effect from time
to time.
"Hazardous
Material" shall mean
(a) any substance or material that is listed, defined or otherwise
designated as a "hazardous substance" under Section 101(14) of
CERCLA, 42 U.S.C. § 9601(14), (b) any petroleum or petroleum
products, and (c) any other chemical, substance or waste that is
regulated under any Environmental Law.
"Hedging
Contract" means (a)
any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity oi- equity index swaps
or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), and (b)
any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other
master agreement, including any obligations or liabilities under
any such master agreement.
"Hydrocarbons"
shall mean oil, gas and other
minerals (of every kind and character and whether similar or
dissimilar to the aforementioned minerals).
"Law"
means any applicable federal or
state law, ordinance, code, rule, regulation, injunction, judgment,
order, statute or treaty enacted, adopted, promulgated, or applied
by any governmental authority or regulatory agency, each as amended
and now in effect.
"Lender" has the meaning set forth in the preamble
hereto.
"Lien"
means any mortgage, pledge, lien
(including any federal or state tax lien), encumbrance, or security
interest.
"Loan" has the meaning set forth in Section
2.1.
"Loan Amount" has the meaning set forth in the recitals
hereto. "Loan Date" has the meaning set forth in
Section 2.1.
"Loan
Documents" means this
Agreement, the Note, the Assignment of Overriding Royalty Interest,
the Act of Partial Release, the Registration Rights Agreement and
any other document, agreement, certificate, or instrument delivered
pursuant hereto or thereto.
"Material Adverse
Effect" means a
material adverse effect on (a) the business, operations, property,
prospects, or condition (financial or otherwise) of Borrower and
its Subsidiaries (taken as a whole), (b) the ability of Borrower to
pay or perform its obligations under this Agreement and the other
Loan Documents, or (c) the validity or enforceability of this
Agreement or any other Loan Document, or the rights or remedies of
Lender hereunder or thereunder.
"Maturity Date" means June 30, 2010.
"Maximum
Amount" shall mean
Four Million Five Hundred Thousand and No/100 Dollars
04,500,000.00).
"Maximum Rate"
means an interest rate equal to a
per annum rate of 3% plus the Applicable Rate so long as such
Maximum Rate is non-usurious under Applicable Law.
"McGowan" means McGowan Working Partners, Inc., a
Mississippi corporation.
"Note" means the promissory note of even date herewith
in the maximum aggregate principal amount of ONE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS (31,500,000.00), executed by
Borrower payable to the order of Lender, which Note shall bear
interest at the Applicable Rate, together with all modifications,
renewals and extensions thereof or of any part thereof
"Organizational
Documents" means the
articles of incorporation, charter, bylaws, articles of formation,
regulations, operating agreement, certificate of limited
partnership, partnership agreement, and all other similar
documents, instruments or certificates executed, adopted, or filed
in connection with the creation, formation, or organization of a
Person, including any amendments thereto.
"Original Agreement" has the meaning set forth in the recitals
hereto,
"Override Balance"
means, as of any time, the total
amount of payments (i) made by or on behalf of Borrower to Lender
and/or, as applicable, the successors and assigns of Lender, in
respect of the overriding royalty interest as of such time (net of
severance and ad valorem taxes), plus (ii) amounts paid by or on
behalf of Borrower on the Note (principal and interest).
"Party" and "Parties" have the meaning set forth
in the preamble hereto.
"Percentage Interest"
means the percentage of all of the
issued and outstanding shares of capital stock of Borrower computed
on a fully diluted basis (as if all instruments convertible
into or exchangeable for Common Stock are so converted or
exchanged) represented by the Closing Shares and other shares of
Common Stock held by Lender (other than the Default Shares), Maxim
TEP Limited or any affiliate thereof as of the date of this
Agreement.
"Person" means an individual or entity, including any
corporation, association, joint stock company, trust; joint
venture, general or limited partnership, limited liability company,
unincorporated organization, or governmental entity (or any
department, agency or political subdivision thereof).
"Preferred Stock"
means shares of Series A convertible
preferred stock, par value 50.00001 per share, of
Borrower.
"Registration Rights Agreement"
has the meaning set forth in
Section 4.1(a)(v).
"SEC" means the Securities and Exchange Commission of
the United States or any other U.S. federal agency at the time
administering the Securities Act.
"SEC Filings"
means the forms, reports, schedules,
statements, and other documents filed with the SEC by Borrower
pursuant to the Securities Act and the Exchange Act.
"Securities Act" means the U,S. Securities Act of 1933, as
amended.
"Subsidiary"
means with respect to a Person, any
corporation, partnership, joint venture, limited liability company,
or other business entity of which a majority of the Equity
Interests having ordinary voting power for the election of
directors or other governing body (other than Equity Interests
having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is
otherwise controlled directly or indirectly through one or more
intermediaries, or both, by such Person.
ARTICLE II
LOAN
2.1 Loan. Subject to the terms and conditions of
this Agreement, the Lender agrees to extend a single advance loan
to the Borrower in the maximum aggregate principal amount of ONE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS (S1,500,000.00)
(the "Loan). The Loan shall be funded by Lender on
even date herewith (the "Loan Date") and shall be evidenced by the
Note_
2.2 Interest. The unpaid principal amount of the
Loan shall bear interest prior to maturity at a rate equal to the
Applicable Rate. If an Event of Default has occurred and is
continuing all unpaid principal of and interest on the Loan shall
bear interest at the Default Rate from the due date thereof until
paid in full
2.3 Repayment of Principal and Interest. On the
Maturity Date, Borrower shall repay to Lender the entire
outstanding principal amount of the Loan plus all interest accrued
on the outstanding principal amount of the Loan. Notwithstanding
the foregoing, (a) accrued interest shall be due and payable in
full by Borrower to Lender upon the prepayment of any portion of
the Loan, and (b) the entire outstanding principal amount of the
Loan and all accrued interest thereon shall be immediately due and
payable in full upon the maturity of the Loan, whether by
acceleration or otherwise.
2.4 Payments. If a payment date is not a
Business Day, payment may be made on the next succeeding day that
is a Business Day and interest shall continue to accrue during such
extension. All payments on or in respect of the Loan shall be made
to Lender in immediately available funds at Kleinwort Benson House,
PO Box 76, Wests Center, St. Helier, Jersey, JE4 8PQ, Channel
Islands, or such other place of payment designated by Lender in
writing to Borrower from time to time, without setoff or
counterclaim and free and clear of and without any deduction of any
kind for any taxes, levies, fees, deductions, withholdings,
restrictions, or conditions of any nature, unless Borrower is
compelled by Law to make any such deduction or
withholding.
2.5 Voluntary Prepayment. Borrower shall have
the right and privilege of prepaying any outstanding principal
amount of the Loan and accrued interest to the date of prepayment,
in whole or in part, at any time or from time to time without
premium or penalty or notice to Lender. All amounts prepaid shall
be applied first to earned, accrued, and unpaid interest and the
balance, if arty, shall be applied to the payment of the
outstanding principal amount of the Loan.
2.6 Use of Proceeds. The proceeds of the Loan
shall be used to pay expenses and remediation in connection with
the Delhi Field litigation, to pay for a workover program in the
Delhi Field and for working capital.
2.7 Issuance of Shares and Royalty Interest,
As an inducement for Lender to extend the Loan to Borrower,
among other things, Borrower agrees:
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On the Loan
Date, to issue to Lender, in reliance on the representations,
warranties, and covenants of Lender set forth herein, Two Million
(2,000,000) shares of stock (restricted) of Borrower (the
"C7osing Shares").
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On the Loan
Date, to grant to Lender a term assignment of an overriding royalty
interest in the Delhi Field equal to fifteen percent of
eight-eighths (15% of 8/8") of all Hydrocarbons produced and saved
from or attributable or allocable to the Delhi Field net of
severance taxes owing with respect thereto (and, to the extent paid
by Borrower, ad valorem taxes against the overriding royalty
interest). The
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term of said assignment of overriding royalty
interest shall commence with Hydrocarbons produced on and after
July 1, 2009 at 7:00 A.M., local time where the Delhi Field
is located and shall terminate on the earlier of the following: (i)
7:00 A.M., local time where the Delhi Field is located, the first
day of the month following the date that the Override Balance
equals the Maximum Amount; and (ii) 7:00 A.M., local time
where the Delhi Field is located., on December 31, 2011.
Notwithstanding the foregoing, in the event the Balloon Payment is
due and payable by Borrower to Lender on December 31, 2011, the
Assignment of Overriding Royalty Interest shall remain in place and
effective until such time that the Balloon Payment is
paid.
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In the event
the outstanding principal and accrued unpaid interest on the Nate
has not been paid in full by the Maturity Date, then, in reliance
on the representations, warranties, and covenants of Lender set
forth herein, the Default Shares shall be deemed issued to Lender.
In the event the principal and accrued unpaid interest has been
paid in full by the Maturity Date, the Default Shares shall not be
deemed delivered and the certificate therefor shall be returned to
Borrower for destruction.
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ARTICLE
DT
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of
Borrower. To induce Lender to enter into this Agreement and
make the Loan to Borrower hereunder, Borrower hereby represents and
warrants to Lender that:
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Authority,
Existence. Borrower bas
the full and requisite power and authority to enter into and
perform its obligations under this Agreement and the other Loan
Documents. Each of Borrower and its Subsidiaries (a) is duly
formed, validly existing, and, except as noted herein, in good
standing under the Laws of its jurisdiction of formation, (b) has
all requisite power and authority to own its properties and carry
an its business as now being conducted, and (c) is qualified to do
business in all jurisdictions where the failure to so qualify might
reasonably be expected to have a Material Adverse Effect. Borrower
has filed necessary franchise tax returns for Texas and other
required' reports for Texas and Louisiana, but has not received
notification that it is currently in good standing.
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Due
Authorization. This
Agreement and the other Loan Documents have been duly authorized,
executed, and delivered by Borrower and constitutes the legal,
valid, and binding obligation of Borrower, enforceable against
Borrower in accordance with its terms except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
other Laws of general application affecting the enforcement of
creditors' rights generally, and (b) as limited by Laws relating to
the availability of specific performance, injunctive relief, or
other equitable remedies.
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(c)
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Na Conflict. The execution, delivery, and performance by
Borrower of this Agreement and the other Loan Documents will not
violate or conflict with the Organizational Documents thereof or
any Law, rule, or regulation or any order, writ, injunction, or
decree of any court, governmental authority, or arbitrator, and do
not and will not conflict with violate, result in a breach of, or
constitute a default under, any agreement by which Borrower or its
Subsidiaries or any of
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their respective properties or assets is bound.
Further, the Borrower specifically warrants that it has obtained
from McGowan, to the extent required, a consent by McGowan to
Borrower's execution of the Loan Documents or a waiver of required
consent by McGowan.
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(d)
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Approvals. Except for waiver from McGowan which will be
secured at or prior to the Loan Date, no authorization, approval,
or consent of, and no filing or registration with, any court or
governmental authority or third party is or will be necessary for
the execution, delivery, or performance by Borrower of this
Agreement and the other Loan Documents or for the validity or
enforceability hereof or thereof.
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(e)
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Assets. Borrower has good and
defensible title to not less than an undivided 95 percent interest
(on a unitized basis) to the leases in the Delhi Field insofar as
they cover the Mengel sand, and the overriding royalty interest to
be granted by Borrower to Lender as set forth herein is free and
clear of all Liens.
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(f)
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Taxes. Except as set forth in Schedule 3.1(f),
(1) Borrower and each of its Subsidiaries has filed all national,
state, and local tax returns and other reports required to be filed
by it, including all income, franchise, employment, property, and
sales taxes, and has paid or made adequate provision for payment of
all liability for such taxes, assessments, and other governmental
charges and levies that are due and payable, except for such tax
returns and taxes which if not filed or paid, as the case may be,
would not in the aggregate have a Material Adverse Effect, and (2)
Borrower knows of no pending investigation of Borrower or any of
its Subsidiaries by any taxing authority or of any pending but
unassessed tax liability of Borrower or any of its
Subsidiaries.
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(g)
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Compliance with Law. To the knowledge of Borrower, except as may be
noted in its most recent 10-Q filing, neither Borrower nor any of
its Subsidiaries is in violation in any material respect of any
Law, rule, regulation, order, or decree of any court, governmental
authority, or arbitrator.
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(h)
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Litigation. Except as set forth in Schedule 3.1(h),
(i) there is no action, suit, claim, hiss, contingency, litigation,
investigation, or proceeding before or by any court, governmental
authority, or arbitrator pending, or to the knowledge of Borrower,
threatened or imminent against or otherwise affecting Borrower or
any Subsidiary of Borrower that might reasonably be expected to
result in a Material Adverse Effect and (ii) there are no
outstanding judgments against Borrower. In addition, the Borrower
warrants that the litigation captioned "Thomas v. Ashley
Investment Company, at al". Docket No. 38,839, 5th
Judicial District Court, Richland Parish, has been settled
pursuant to a written settlement agreement signed by all plaintiffs
and defendants, and approved by the court.
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(i)
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Environmental Matters. Except as may relate to the Delhi Field, to the
knowledge of Borrower:
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(i) Neither Borrower, any Subsidiary of
Borrower, nor any prior owner of any property of Borrower or any
Subsidiary thereof, including the Delhi Field after giving effect
to proceeds of the Loan which will be used to defray certain Delhi
Field costs, has caused or permitted the generation, use,
treatment, storage, or disposal of Hazardous Materials at or on
any
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of such
property in violation of applicable Environmental Laws, except as
would not reasonably be expected to have a Material Adverse
Effect.
With respect to the current operation of the
properties of Borrower and each Subsidiary of Borrower, Borrower
and each Subsidiary of Borrower is in compliance with applicable
Environmental Laws, except for such non-compliance that would not
reasonably be expected to have a Material Adverse Effect
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All
environmental permits necessary to operate the properties of
Borrower and each Subsidiary of Borrower in the manner currently
operated have been duly obtained or filed and are in full force and
effect, and Borrower and each Subsidiary of Borrower is in
compliance with such environmental permits, except for such
non-compliance that would not reasonably be expected to have a
Material Adverse Effect.
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Except for
litigation relating to cleanup of certain properties in the Delhi
Field, there are no proceedings pending or threatened against
Borrower or any Subsidiary of Borrower that are based upon or arise
under any Environmental Law and that relate to the properties of
Borrower or any Subsidiary of Borrower.
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Except as would
not reasonably be expected to have an Environmental Material
Adverse Effect, there are no environmental actions or claims
pending or threatened by or before any court or any other
governmental authority directed against Borrower or any Subsidiary
of Borrower relating to the operation of the properties thereof
that pertain or relate to (A) any remedial actions under any
applicable Environmental Law, (B) violations by Borrower or any
Subsidiary of Borrower of any Environmental Law, or (C) personal
injury or property damage claims relating to a release of Hazardous
Materials.
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None of the
properties of Borrower or any Subsidiary of Borrower is encumbered
by a Lien arising or imposed under Environmental Laws.
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There are no
Hazardous Materials present in or on the soil, sediments, surface
water, or ground water on, Under,. or from or migrating froth any
of the properties of Borrower or any Subsidiary of Borrower in
amounts that are reasonably likely to give rise to an
obligation to conduct a remedial action other than the contemplated
remedial actions in the Delhi Field.
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There is no
ongoing remedial work at or on any of the properties of Borrower or
any Subsidiary of Borrower other than at the Delhi
Field.
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(j)
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Use of Proceeds. Neither Borrower nor any of its Subsidiaries is
engaged principally, or as one of its or their material activities,
in the business of extending credit for the purpose, whether
immediate, incidental, or ultimate, of buying or carrying margin
stock (within the meaning of Regulations T, U, or X of the Board of
Governors of the U.S. Federal Reserve). No part of the proceeds of
the Loan will be used for any purpose which violates the provisions
of Regulations T, U, or X of the Board of Governors of the U.S.
Federal Reserve.
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(k)
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Financial Statements. Borrower has delivered to Lender its most recent
10-Q filing, which filing contains Borrower's most recent financial
statements. The financial statements are complete in all material
respects and were prepared in accordance with Borrower's historical
accounting procedures, consistently applied, and present fairly in
all material respects the financial position and results of
operations of Borrower and each of its Subsidiaries as of the date
of and for the period involved. The financial statements make full
and adequate provision for all known obligations, liabilities, and
commitments (fixed and contingent) of Borrower and its Subsidiaries
as of the date of the financial statements. Except as set forth on
Schedule 3.1(k)., since the date of the financial
statements, there has been no material adverse change in the
business, properties, prospects, operation or condition (financial
or otherwise) of Borrower or any of its Subsidiaries.
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(l)
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Closing Shares and Default Shares.
Borrower has taken all corporate
action necessary to authorize the issuance and delivery of the
Closing Shares and the Default Shares. The Closing Shares when
issued in accordance with the provisions of this Agreement will be
validly issued, fully paid, and nonassessable, free and clear of
all Liens (except for restrictions on transfer imposed by
applicable federal. or state securities Laws or this Agreement)
and, assuming the accuracy of Lender's representations and
warranties set forth in Section 3.2, issued in compliance
with all applicable federal and state securities Laws. The Default
Shares, assuming the relevant contingency occurs to make them
issued in accordance with the provisions of this Agreement, will be
validly issued, fully paid, and nonassessable, free and clear of
all Liens (except for restrictions on transfer imposed by
applicable federal or state securities Laws or this Agreement) and,
assuming the accuracy of Lender's representations and warranties
set forth in Section 3.2, issued in compliance with all
applicable federal and state securities, Laws. Except for those
rights set forth in the Registration Rights Agreement, none of the
Closing Shares and Default Shares issued pursuant to this Agreement
will, upon issuance, be subject to any preemptive rights, rights of
first refusal, or other rights to purchase (whether in favor of
Lender or any other Person) pursuant to any contract or commitment
of Borrower.
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(m)
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Borrower Capitalization. The authorized capital stock of Borrower
consists solely of 250,000,000 shares of Common Stock and
50,000,000 shares of Preferred Stock. As of May 31, 2009,
135,229,205 shares of Common Stock were issued and outstanding,
5,454,545 shares of Preferred Stock were issued and outstanding,
and warrants to purchase up to an aggregate 4,399,156 shares of
Common Stock, each at an exercise price of $0.75 per share, and
options to purchase up to an aggregate 15,372,489 shares of Common
Stock, each at an exercise price of $0.75 per share, were
outstanding. All shares of Common Stock and Preferred Stock that
are issued and outstanding, have been validly issued and fully paid
and are non-assessable and were issued in accordance with the
registration or qualification provisions of the Securities Act and
any relevant state securities Laws, or pursuant to valid exemptions
therefrom. Except as set forth in this Section 3.1(m), as of
the date hereof: (a) there are no outstanding options, warrants,
convertible securities, calls, rights, preemptive rights,
agreements, arrangements, or other commitments of any character
obligating Borrower or its Subsidiaries (i) to issue, deliver, or
sell, or cause to be issued,
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delivered, or sold, additional shares of capital
stock of Borrower or any securities or obligations convertible into
or exchangeable for such shares, or (ii) to grant, extend or enter
into any such option, warrant, convertible security, call, right,
preemptive right, agreement, arrangement, or other commitments, (h)
no options, warrants, rights (including conversion or preemptive
rights), or other commitments exist with respect to the Equity
Interests of Borrower, except as may be contained in this
Agreement, (c) there are no contracts with respect to (or
which affects) the voting, giving Of written consents with
respect to the voting, transfer, conversion, issuance;' or
registration, of the Equity Interests of Borrower, and (d) there
are no outstanding obligations of Borrower or any of its
Subsidiaries to redeem, repurchase, or otherwise acquire any of its
Equity Interests. No stock plan, stock purchase, stock option, or
other agreement or understanding between Borrower or any of its
Subsidiaries and any holder of any Equity Interests of Borrower, or
rights exercisable or convertible therefor, provides for
acceleration or other changes in the vesting provisions or other
terms of such agreement or understanding, including adjustments to
or resets of the exercise price of any outstanding security of
Borrower, as the result of the consummation of the transactions
contemplated hereby.
(1) SEC Filings. Each SEC Filing, when
filed by Borrower with the SEC, complied in all material respects
with the requirements of the Securities Act, the Exchange Act and
the Sarbanes-Oxley Act of 2002, as applicable, and the rules and
regulations of the SEC thereunder applicable to the SEC Filings.
None of the SEC Filings (including any financial statements of
'Borrower or schedules included or incorporated by • reference
therein) contained, as of the respective dates thereof, any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which
they were made. Borrower filed in a timely manner all documents
that Borrower was required to file under the Exchange Act during
the twelve (12) months preceding the date of this
Agreement.
3.2
Representations and Warranties of Lender. To induce Borrower to
enter into this Agreement, Lender hereby represents and warrants to
Borrower that:
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