AND WARRANTIES
3.1.
REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
THE BORROWER HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND
WARRANTIES TO THE LENDER, WHICH ARE QUALIFIED BY THE DISCLOSURE SCHEDULE DATED
AS OF EVEN DATE HEREWITH.
5
(A)
SUBSIDIARIES.
THE BORROWER DOES NOT
DIRECTLY OR INDIRECTLY CONTROL OR OWN ANY INTEREST IN ANY OTHER CORPORATION,
PARTNERSHIP, JOINT VENTURE OR OTHER BUSINESS ASSOCIATION OR ENTITY (A
"SUBSIDIARY"), OTHER THAN THOSE LISTED IN DISCLOSURE SCHEDULE 3.1(A). EXCEPT AS
DISCLOSED IN DISCLOSURE SCHEDULE 3.1(A), THE BORROWER OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE CAPITAL STOCK OF EACH SUBSIDIARY FREE AND CLEAR OF ANY
LIEN, CHARGE, CLAIM, SECURITY INTEREST, ENCUMBRANCE, RIGHT OF FIRST REFUSAL OR
OTHER RESTRICTION (COLLECTIVELY, "LIENS"), AND ALL THE ISSUED AND OUTSTANDING
SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE VALIDLY ISSUED AND ARE FULLY
PAID, NON-ASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
(B)
ORGANIZATION AND QUALIFICATION.
EACH OF
THE BORROWER AND THE SUBSIDIARIES IS AN ENTITY DULY INCORPORATED OR OTHERWISE
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE
REQUISITE POWER AND AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO
CARRY ON ITS BUSINESS AS CURRENTLY CONDUCTED. NEITHER THE BORROWER NOR ANY
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 BORROWER AND EACH SUBSIDIARY IS DULY QUALIFIED TO
CONDUCT 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, COULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE OR REASONABLY BE EXPECTED TO RESULT IN
(I) AN ADVERSE EFFECT ON THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY
TRANSACTION DOCUMENT, (II) A MATERIAL AND ADVERSE EFFECT ON THE RESULTS OF
OPERATIONS, ASSETS, PROSPECTS, BUSINESS OR CONDITION (FINANCIAL OR OTHERWISE) OF
THE BORROWER AND THE SUBSIDIARIES, TAKEN AS A WHOLE, OR (III) AN ADVERSE
IMPAIRMENT TO THE BORROWER'S ABILITY TO PERFORM ON A TIMELY BASIS ITS
OBLIGATIONS UNDER ANY TRANSACTION DOCUMENT (ANY OF (I), (II) OR (III), A
"MATERIAL ADVERSE EFFECT"), EXCEPT (A) AS LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS, (B) GENERAL PRINCIPLES OF EQUITY
THAT RESTRICT THE AVAILABILITY OF EQUITABLE REMEDIES, AND (C) TO THE EXTENT THAT
THE ENFORCEABILITY OF THE INDEMNIFICATION PROVISIONS CONTAINED HEREIN OR IN THE
REGISTRATION RIGHTS AGREEMENT MAY BE LIMITED BY APPLICABLE LAWS.
(C)
AUTHORIZATION; ENFORCEMENT.
THE BORROWER
HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY EACH OF THE TRANSACTION DOCUMENTS AND OTHERWISE
TO CARRY OUT ITS OBLIGATIONS HEREUNDER. THE EXECUTION AND DELIVERY OF EACH OF
THE TRANSACTION DOCUMENTS BY THE BORROWER AND THE CONSUMMATION BY IT OF THE
TRANSACTIONS CONTEMPLATED HEREUNDER