TO THE INVESTORS IN ACCORDANCE WITH SECTION 4.6 HEREOF).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO EACH INVESTOR THAT, EXCEPT AS SET FORTH IN THE SEC
REPORTS (AS HEREINAFTER DEFINED) OR IN THE SCHEDULE OF EXCEPTIONS ATTACHED AS
EXHIBIT E TO THIS AGREEMENT, WHICH EXCEPTIONS SHALL BE DEEMED TO BE PART OF THE
REPRESENTATIONS AND WARRANTIES MADE HEREUNDER, THE FOLLOWING REPRESENTATIONS ARE
TRUE AND COMPLETE AS OF THE DATE HEREOF.
THE SCHEDULE OF EXCEPTIONS SHALL BE
ARRANGED IN SECTIONS CORRESPONDING TO THE NUMBERED AND LETTERED
4
SECTIONS AND SUBSECTIONS CONTAINED IN THIS SECTION 3, AND THE DISCLOSURES IN ANY
SECTION OR SUBSECTION OF THE SCHEDULE OF EXCEPTIONS SHALL QUALIFY OTHER SECTIONS
AND SUBSECTIONS IN THIS SECTION 3 ONLY TO THE EXTENT IT IS REASONABLY APPARENT
FROM A READING OF THE DISCLOSURE THAT SUCH DISCLOSURE IS APPLICABLE TO SUCH
OTHER SECTIONS AND SUBSECTIONS:
(A)
ORGANIZATION AND QUALIFICATION.
EACH OF THE COMPANY AND THE
SIGNIFICANT SUBSIDIARIES IS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR
ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE LEGAL AUTHORITY TO OWN AND USE
ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY SIGNIFICANT SUBSIDIARY IS IN VIOLATION OF ANY OF THE
PROVISIONS OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF INCORPORATION, BYLAWS OR
OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS.
EACH OF THE COMPANY AND THE
SIGNIFICANT SUBSIDIARIES IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD
STANDING AS A FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN WHICH
THE NATURE OF THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD
STANDING, AS THE CASE MAY BE, WOULD NOT REASONABLY BE EXPECTED TO INDIVIDUALLY
OR IN THE AGGREGATE, (I) MATERIALLY AND ADVERSELY AFFECT THE LEGALITY, VALIDITY
OR ENFORCEABILITY OF ANY TRANSACTION DOCUMENT, (II) HAVE OR RESULT IN A MATERIAL
ADVERSE EFFECT ON THE RESULTS OF OPERATIONS, ASSETS, BUSINESS OR FINANCIAL
CONDITION OF THE COMPANY AND THE SIGNIFICANT SUBSIDIARIES, TAKEN AS A WHOLE ON A
CONSOLIDATED BASIS OR (III) MATERIALLY AND ADVERSELY IMPAIR THE COMPANY'S
ABILITY TO PERFORM FULLY ON A TIMELY BASIS ITS OBLIGATIONS UNDER ANY OF THE
TRANSACTION DOCUMENTS (ANY OF (I), (II) OR (III), A "MATERIAL ADVERSE EFFECT").
(B)
SUBSIDIARIES.
OTHER THAN THE SIGNIFICANT SUBSIDIARIES AND THE
INSIGNIFICANT SUBSIDIARIES, THE COMPANY HAS NO OTHER DIRECT OR INDIRECT
SUBSIDIARIES.
THE COMPANY OWNS, DIRECTLY OR INDIRECTLY, ALL OF THE CAPITAL
STOCK OR COMPARABLE EQUITY INTERESTS OF EACH SUBSIDIARY FREE AND CLEAR OF ANY
LIEN (EXCEPT AS CONTEMPLATED BY THE GUARANTY AND SECURITY AGREEMENT), AND ALL
THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OR COMPARABLE EQUITY INTEREST
OF EACH SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY PAID, NON-ASSESSABLE AND
FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
NONE OF THE INSIGNIFICANT SUBSIDIARIES
(I) CARRIES ON ANY SUBSTANTIVE BUSINESS OPERATIONS OR ACTIVITIES OR (II)