THAT BY REASON OF ITS BUSINESS OR FINANCIAL EXPERIENCE, NCN HAS THE CAPACITY TO
PROTECT ITS OWN INTERESTS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
REGAL SHALL CAUSE ITS AFFILIATED FOUNDING
15
MEMBER TO EXECUTE AND DELIVER, ON OR PRIOR TO THE CLOSING, A REPRESENTATION
LETTER (THE "FOUNDING MEMBER REPRESENTATION LETTER"), PURSUANT TO WHICH SUCH
FOUNDING MEMBER SHALL REPRESENT, WARRANT AND ACKNOWLEDGE TO THE COMPANY THE SAME
FOREGOING INVESTMENT REPRESENTATIONS MADE BY NCN.
4.2
Representations and Warranties of the Company.
The Company
represents and warrants to the other Parties as follows:
(A)
DUE ORGANIZATION.
THE COMPANY IS DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, AND HAS FULL POWER
AND AUTHORITY TO CONDUCT ITS BUSINESS CONSISTENT WITH THE JOINT VENTURE
PURPOSES.
THE COMPANY HAS FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT
AND THE OTHER JOINT VENTURE AGREEMENTS AND TO PERFORM ITS OBLIGATIONS HEREUNDER
AND THEREUNDER, INCLUDING BUT NOT LIMITED TO THE ISSUANCE OF UNITS CONTEMPLATED
HEREBY.
(B)
AUTHORIZATION AND VALIDITY OF AGREEMENT.
THE EXECUTION, DELIVERY
AND PERFORMANCE BY THE COMPANY OF THIS AGREEMENT AND THE OTHER JOINT VENTURE
AGREEMENTS AND THE CONSUMMATION BY THE COMPANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART
OF THE COMPANY. EACH OF THIS AGREEMENT AND THE OTHER JOINT VENTURE AGREEMENTS
HAS BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND, ASSUMING DUE EXECUTION
AND DELIVERY BY THE OTHER PARTIES THERETO, CONSTITUTES A VALID AND LEGALLY
BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, SUBJECT TO THE EFFECTS OF BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS RELATING TO OR AFFECTING
CREDITORS' RIGHTS GENERALLY, GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN
A PROCEEDING IN EQUITY OR AT LAW) AND AN IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING.
(C)
NO CONFLICT; NO GOVERNMENT APPROVALS OR NOTICES REQUIRED.
THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER JOINT
VENTURE AGREEMENTS BY THE COMPANY AND THE CONSUMMATION BY THE COMPANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WILL NOT (I) CONFLICT WITH OR
RESULT IN A BREACH OF ANY PROVISION OF THE CERTIFICATE OF FORMATION OR THE
COMPANY OPERATING AGREEMENT, (II) REQUIRE ANY GOVERNMENTAL APPROVAL, EXCEPT FOR
ANY FILING OR TERMINATION OF THE WAITING PERIOD OR OTHER APPROVAL UNDER THE HSR
ACT, TO THE EXTENT REQUIRED, (III) REQUIRE THE CONSENT OR APPROVAL OF ANY PERSON
(OTHER THAN A GOVERNMENTAL AUTHORITY) OR VIOLATE OR CONFLICT WITH, OR RESULT IN
A BREACH OF ANY PROVISION OF, CONSTITUTE A DEFAULT (OR AN EVENT WHICH WITH
NOTICE OR LAPSE OF TIME OR OTHERWISE WOULD BECOME A DEFAULT) OR GIVE TO ANY
THIRD PARTY ANY RIGHT OF TERMINATION, CANCELLATION, AMENDMENT OR ACCELERATION
UNDER, OR RESULT IN THE CREATION OF A LIEN OR ENCUMBRANCE ON ANY OF THE ASSETS
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, IF ANY, UNDER, ANY OF THE TERMS,
CONDITIONS OR PROVISIONS OF ANY AGREEMENT, CONTRACT, LICENSE