APPROVAL WHERE, IN EACH OF THE FOREGOING CLAUSES
(I), (II) AND (III), THE FAILURE TO SO COMPLY WOULD BE REASONABLY EXPECTED TO
HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
THE TERM
"ENVIRONMENTAL LAWS" MEANS ALL FEDERAL, STATE, LOCAL OR FOREIGN LAWS RELATING TO
POLLUTION OR PROTECTION OF HUMAN HEALTH OR THE ENVIRONMENT (INCLUDING, WITHOUT
LIMITATION, AMBIENT AIR, SURFACE WATER, GROUNDWATER, LAND SURFACE OR SUBSURFACE
STRATA), INCLUDING, WITHOUT LIMITATION, LAWS RELATING TO EMISSIONS, DISCHARGES,
RELEASES OR THREATENED RELEASES OF CHEMICALS, POLLUTANTS, CONTAMINANTS, OR TOXIC
OR HAZARDOUS SUBSTANCES OR WASTES (COLLECTIVELY, "HAZARDOUS MATERIALS") INTO THE
ENVIRONMENT, OR OTHERWISE RELATING TO THE MANUFACTURE, PROCESSING, DISTRIBUTION,
USE, TREATMENT, STORAGE, DISPOSAL, TRANSPORT OR HANDLING OF HAZARDOUS MATERIALS,
AS WELL AS ALL AUTHORIZATIONS, CODES, DECREES, DEMANDS OR DEMAND LETTERS,
INJUNCTIONS, JUDGMENTS, LICENSES, NOTICES OR NOTICE LETTERS, ORDERS, PERMITS,
PLANS OR REGULATIONS ISSUED, ENTERED, PROMULGATED OR APPROVED THEREUNDER.
(EE)
SUBSIDIARY RIGHTS.
EXCEPT AS SET FORTH IN
SCHEDULE 3.1(EE), THE COMPANY OR ONE OF ITS SUBSIDIARIES HAS THE UNRESTRICTED
RIGHT TO VOTE, AND (SUBJECT TO LIMITATIONS IMPOSED BY APPLICABLE LAW) TO RECEIVE
DIVIDENDS AND DISTRIBUTIONS ON, ALL CAPITAL SECURITIES OF ITS SUBSIDIARIES AS
OWNED BY THE COMPANY OR SUCH SUBSIDIARY.
(FF)
TAX STATUS.
THE COMPANY AND EACH OF ITS
SUBSIDIARIES (I) HAS MADE OR FILED ALL FOREIGN, FEDERAL AND STATE INCOME AND ALL
OTHER TAX RETURNS, REPORTS AND DECLARATIONS REQUIRED BY ANY JURISDICTION TO
WHICH IT IS SUBJECT, (II) HAS PAID ALL TAXES AND OTHER GOVERNMENTAL ASSESSMENTS
AND CHARGES THAT ARE MATERIAL IN AMOUNT, SHOWN OR DETERMINED TO BE DUE ON SUCH
RETURNS, REPORTS AND DECLARATIONS, EXCEPT THOSE BEING CONTESTED IN GOOD FAITH
AND (III) HAS SET ASIDE ON ITS BOOKS PROVISION REASONABLY ADEQUATE FOR THE
PAYMENT OF ALL TAXES FOR PERIODS SUBSEQUENT TO THE PERIODS TO WHICH SUCH
RETURNS, REPORTS OR DECLARATIONS APPLY.
THERE ARE NO UNPAID TAXES IN ANY
MATERIAL AMOUNT CLAIMED TO BE DUE BY THE TAXING AUTHORITY OF ANY JURISDICTION,
AND THE OFFICERS OF THE COMPANY KNOW OF NO BASIS FOR ANY SUCH CLAIM.
3.2
REPRESENTATIONS AND WARRANTIES OF THE
INVESTORS.
EACH INVESTOR HEREBY, AS TO ITSELF ONLY AND FOR NO OTHER INVESTOR,
REPRESENTS AND WARRANTS TO THE COMPANY AS FOLLOWS:
(A)
ORGANIZATION; AUTHORITY.
SUCH INVESTOR IS
AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE OR
PARTNERSHIP POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT ITS
OBLIGATIONS HEREUNDER AND THEREUNDER.
THE PURCHASE BY SUCH INVESTOR OF THE
SECURITIES HEREUNDER HAS BEEN DULY AUTHORIZED BY
15
ALL NECESSARY ACTION ON THE PART OF SUCH INVESTOR.
THIS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY SUCH INVESTOR AND CONSTITUTES THE VALID AND BINDING
OBLIGATION OF SUCH INVESTOR, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS MAY BE LIMITED BY (I) APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION OR OTHER LAWS OF GENERAL APPLICATION RELATING TO OR AFFECTING THE
ENFORCEMENT OF CREDITORS RIGHTS GENERALLY, AND (II)