acceptable
to the Company, to the effect that such legend is not required under applicable
requirements of the 1933 Act, or (iii) such holder provides the Company with
reasonable assurance that the Securities can be sold, assigned or transferred
pursuant to Rule 144.
(K)
ORGANIZATION; VALIDITY; ENFORCEMENT.
SUCH
BUYER IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER
THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE,
LIMITED LIABILITY COMPANY OR PARTNERSHIP, AS APPLICABLE, POWER AND AUTHORITY TO
ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS
HEREUNDER AND THEREUNDER.
THIS AGREEMENT, THE AMENDED AND RESTATED PLEDGE
AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT, THE AMENDED AND RESTATED
SECURITIES ACCOUNT CONTROL AGREEMENT AND THE
5
CASH COLLATERAL ACCOUNT CONTROL AGREEMENT HAVE BEEN DULY AND VALIDLY AUTHORIZED,
EXECUTED AND DELIVERED ON BEHALF OF SUCH BUYER AND SHALL CONSTITUTE THE LEGAL,
VALID AND BINDING OBLIGATIONS OF SUCH BUYER, ENFORCEABLE AGAINST SUCH BUYER IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE
LIMITED BY GENERAL PRINCIPLES OF EQUITY OR TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, LIQUIDATION AND OTHER SIMILAR LAWS RELATING TO, OR
AFFECTING GENERALLY, THE ENFORCEMENT OF APPLICABLE CREDITORS' RIGHTS AND
REMEDIES AND EXCEPT THAT THE INDEMNIFICATION PROVISIONS UNDER THE REGISTRATION
RIGHTS AGREEMENT MAY FURTHER BE LIMITED BY PRINCIPLES OF PUBLIC POLICY.
(L)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF
THAT JURISDICTION SPECIFIED BELOW ITS ADDRESS ON THE SCHEDULE OF BUYERS.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth under the corresponding section of the disclosure schedule
supplied by the Company to each Buyer as of the date of this Agreement (the
"Disclosure Schedules"), the Company represents and warrants to each of the
Buyers that:
(A)
ORGANIZATION AND QUALIFICATION.
THE
COMPANY AND ITS "SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS AGREEMENT MEANS ANY
ENTITY, OTHER THAN AVII, IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS 10%
OR MORE OF THE CAPITAL STOCK OR HOLDS 10% OR MORE OF AN EQUITY OR SIMILAR
INTEREST) ARE CORPORATIONS DULY ORGANIZED AND VALIDLY EXISTING IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION IN WHICH THEY ARE INCORPORATED, AND HAVE THE
REQUISITE CORPORATE POWER AND AUTHORIZATION TO OWN THEIR PROPERTIES AND TO CARRY
ON THEIR BUSINESS AS NOW BEING CONDUCTED.
EACH OF THE COMPANY AND ITS
SUBSIDIARIES IS DULY QUALIFIED AS A FOREIGN CORPORATION TO DO BUSINESS AND IS IN
GOOD STANDING IN EVERY JURISDICTION IN WHICH ITS OWNERSHIP OF PROPERTY OR THE
NATURE OF THE BUSINESS CONDUCTED BY IT MAKES SUCH QUALIFICATION NECESSARY,
EXCEPT TO THE EXTENT THAT THE FAILURE TO BE SO QUALIFIED OR BE IN GOOD STANDING
WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
AS USED IN THIS AGREEMENT, "MATERIAL
ADVERSE EFFECT" MEANS ANY MATERIAL ADVERSE EFFECT ON THE BUSINESS, PROPERTIES,
ASSETS, OPERATIONS, RESULTS OF OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE)
OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, OR ON THE TRANSACTIONS
CONTEMPLATED HEREBY