3.
Representations and Warranties.
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
REPRESENTS AND WARRANTS TO AND AGREES WITH THE PREFERRED MEMBER THAT:
(A)
THE COMPANY AND EACH OF ITS SUBSIDIARIES HAS BEEN DULY FORMED AND
IS VALIDLY EXISTING IN GOOD STANDING AS A CORPORATION, PARTNERSHIP OR LIMITED
LIABILITY COMPANY, AS THE CASE MAY BE, UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION OR FORMATION WITH THE REQUISITE CORPORATE OR OTHER POWER AND
AUTHORITY TO OWN ITS PROPERTIES AND CONDUCT ITS BUSINESS AS NOW CONDUCTED AND IS
DULY QUALIFIED TO DO BUSINESS AS A FOREIGN CORPORATION IN GOOD STANDING IN ALL
JURISDICTIONS WHERE THE OWNERSHIP OR LEASING OF ITS PROPERTIES OR THE CONDUCT OF
ITS BUSINESS REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE
EFFECT ON THE GENERAL AFFAIRS, MANAGEMENT, BUSINESS, CONDITION (FINANCIAL OR
OTHER), PROPERTIES, PROSPECTS OR RESULTS OF OPERATIONS OF THE COMPANY AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE (ANY SUCH EVENT, A "MATERIAL ADVERSE EFFECT"); AS
OF THE CLOSING DATE, THE COMPANY WILL HAVE THE AUTHORIZED, ISSUED AND
OUTSTANDING MEMBERSHIP INTERESTS AS SET FORTH IN THE AMENDED MEMBERSHIP INTEREST
SCHEDULE; ALL OF THE ACQUIRED PREFERRED UNITS HAVE BEEN DULY AUTHORIZED AND
VALIDLY ISSUED, ARE FULLY PAID AND NONASSESSABLE AND WERE NOT ISSUED IN
VIOLATION OF ANY PREEMPTIVE OR SIMILAR RIGHTS AND ARE OWNED FREE AND CLEAR OF
ALL LIENS, ENCUMBRANCES, EQUITIES AND RESTRICTIONS (OTHER THAN THOSE IMPOSED BY
THE SECURITIES ACT AND THE STATE SECURITIES OR "BLUE SKY" LAWS); NO OPTIONS,
WARRANTS OR OTHER RIGHTS TO PURCHASE FROM THE COMPANY OR ANY SUBSIDIARY,
AGREEMENTS OR OTHER OBLIGATIONS OF THE COMPANY OR ANY SUBSIDIARY TO ISSUE OR
OTHER RIGHTS TO CONVERT ANY OBLIGATION INTO, OR EXCHANGE ANY SECURITIES FOR,
MEMBERSHIP INTERESTS OR OTHER OWNERSHIP INTERESTS IN THE COMPANY OR ANY
SUBSIDIARY ARE OUTSTANDING AND NO HOLDER OF MEMBERSHIP INTERESTS OR OTHER
OWNERSHIP INTERESTS IN THE COMPANY OR ANY SUBSIDIARY IS ENTITLED TO HAVE SUCH
MEMBERSHIP INTEREST REGISTERED UNDER THE SECURITIES ACT; AND THE ACQUIRED
PREFERRED UNITS CONSTITUTE ALL OF THE PREFERRED UNITS ISSUED OR AUTHORIZED FOR
ISSUANCE.
(B)
THE COMPANY HAS THE REQUISITE POWER AND AUTHORITY TO EXECUTE,
DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
THIS AGREEMENT HAS
BEEN DULY AND VALIDLY AUTHORIZED BY THE COMPANY AND CONSTITUTES A VALID AND
LEGALLY BINDING AGREEMENT OF THE COMPANY, ENFORCEABLE AGAINST THE COMPANY IN
ACCORDANCE WITH ITS TERMS.
THE ISSUANCE OF THE ACQUIRED PREFERRED UNITS HAS
BEEN DULY AND VALIDLY AUTHORIZED BY THE COMPANY AND, WHEN PAID FOR BY THE
PREFERRED MEMBER IN ACCORDANCE WITH THE TERMS HEREOF, THE ACQUIRED PREFERRED
UNITS WILL HAVE BEEN DULY ISSUED AND DELIVERED AND WILL CONSTITUTE VALID AND
LEGALLY BINDING OBLIGATIONS OF THE COMPANY, ENTITLED TO THE BENEFITS OF THE
AMENDED MEMBERSHIP INTEREST SCHEDULE AND ENFORCEABLE AGAINST THE COMPANY IN
ACCORDANCE WITH ITS TERMS.
(C)
NO CONSENT, APPROVAL, AUTHORIZATION, LICENSE, QUALIFICATION,
EXEMPTION OR ORDER OF ANY COURT OR GOVERNMENTAL AGENCY OR BODY OR THIRD PARTY IS
REQUIRED