AND ONLY BY, THE AGENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
ABOVE, THE FOREGOING SHALL NOT BE DEEMED TO WAIVE OR LIMIT SUCH BUYER'S LEGAL
REMEDIES AS A RESULT OF THE WILLFUL MISCONDUCT OR FRAUD OF THE AGENT OR ANY OF
ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, CONTROLLING PERSONS OR
AGENTS.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that, as of the date
hereof and as of the Closing Date:
(A)
ORGANIZATION AND QUALIFICATION.
EACH OF THE COMPANY AND ITS
"SUBSIDIARIES" (WHICH FOR PURPOSES OF THIS AGREEMENT MEANS ANY JOINT VENTURE OR
ANY ENTITY IN WHICH THE COMPANY, DIRECTLY OR INDIRECTLY, OWNS 50% OR MORE OF THE
CAPITAL STOCK OR AN EQUITY OR SIMILAR INTEREST) ARE ENTITIES DULY ORGANIZED AND
VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION IN WHICH
THEY ARE FORMED, AND HAVE THE REQUISITE 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 ENTITY 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 REASONABLY BE EXPECTED TO 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, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS OF THE COMPANY AND
ITS SUBSIDIARIES, TAKEN AS A WHOLE, OR ON THE TRANSACTIONS CONTEMPLATED HEREBY
OR IN THE OTHER TRANSACTION DOCUMENTS OR BY THE AGREEMENTS AND INSTRUMENTS TO BE
ENTERED INTO IN CONNECTION HEREWITH OR THEREWITH, OR ON THE AUTHORITY OR ABILITY
OF THE COMPANY TO PERFORM ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS (AS
DEFINED BELOW).
THE COMPANY HAS NO SUBSIDIARIES EXCEPT AS SET FORTH ON SCHEDULE
3(A).
6
(B)
AUTHORIZATION; ENFORCEMENT; VALIDITY.
THE COMPANY HAS THE
REQUISITE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT, THE IRREVOCABLE TRANSFER AGENT INSTRUCTIONS (AS DEFINED BELOW),
THE REGISTRATION RIGHTS AGREEMENT, THE NOTES, THE SECURITY DOCUMENTS AND EACH OF
THE OTHER AGREEMENTS ENTERED INTO BY THE PARTIES HERETO IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TRANSACTION
DOCUMENTS") AND TO ISSUE THE SECURITIES IN ACCORDANCE WITH THE TERMS HEREOF AND
THEREOF.
THE EXECUTION AND DELIVERY OF THE TRANSACTION DOCUMENTS BY THE COMPANY
AND THE CONSUMMATION BY THE COMPANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY, INCLUDING, WITHOUT LIMITATION, THE ISSUANCE OF THE NOTES, THE
RESERVATION FOR ISSUANCE AND THE ISSUANCE OF THE CONVERSION SHARES ISSUABLE UPON
CONVERSION OF THE NOTE AND THE GRANTING OF THE MORTGAGES, THE GUARANTEES AND THE
SECURITY INTEREST IN THE REAL PROPERTY COLLATERAL (AS DEFINED IN THE NOTES) HAVE
BEEN DULY AUTHORIZED BY THE COMPANY'S BOARD OF DIRECTORS AND NO FURTHER CONSENT
OR