MATERIAL ADVERSE CHANGE.
THE ABSENCE, SINCE
DECEMBER 31, 2004, OF ANY MATERIAL ADVERSE CHANGE IN ANY ASPECT OF THE BUSINESS,
OPERATIONS, PROPERTIES, PROSPECTS OR CONDITION (FINANCIAL OR OTHERWISE) OF ANY
NOTE PARTY, OR ANY EVENT OR CONDITION WHICH COULD REASONABLY BE EXPECTED TO
RESULT IN SUCH A MATERIAL ADVERSE CHANGE.
3.6
LITIGATION.
NO LITIGATION, INVESTIGATION OR
OTHER PROCEEDING SHALL BE PENDING OR THREATENED, (A) WITH RESPECT TO WHICH THERE
IS A REASONABLE POSSIBILITY OF AN ADVERSE DETERMINATION, AND THAT, IF ADVERSELY
DETERMINED, COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT
OR (B) THAT CHALLENGES OR PURPORTS TO CHALLENGE ANY ASPECT OF THE TRANSACTIONS.
3.7
FEES AND EXPENSES PAID.
THERE SHALL HAVE
BEEN PAID TO EACH OF THE PURCHASERS, FOR THEIR RESPECTIVE ACCOUNTS, ALL FEES
AND, TO THE EXTENT DOCUMENTED, REASONABLE EXPENSES (INCLUDING THE REASONABLE
LEGAL FEES OF OUTSIDE COUNSEL TO EACH OF THE PURCHASERS) DUE AND PAYABLE ON OR
BEFORE THE CLOSING DATE.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Purchasers to purchase the Notes, each of the Note
Parties, jointly and severally, makes the following representations, warranties,
covenants and agreements, in each case as of the Closing Date and both before
and after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the Notes:
4.1
EXISTENCE AND POWER.
EACH NOTE PARTY IS AN
ENTITY AS SPECIFIED ON SCHEDULE 4.1, IS DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION SPECIFIED ON SCHEDULE 4.1, HAS
THE SAME LEGAL NAME AS IT APPEARS IN SUCH
5
NOTE PARTY'S ORGANIZATIONAL DOCUMENTS AND AN ORGANIZATIONAL IDENTIFICATION
NUMBER (IF ANY), IN EACH CASE AS SPECIFIED ON SCHEDULE 4.1, AND HAS ALL POWERS
AND ALL GOVERNMENTAL LICENSES, AUTHORIZATIONS, REGISTRATIONS, PERMITS, CONSENTS
AND APPROVALS REQUIRED UNDER ALL APPLICABLE LAWS AND REQUIRED IN ORDER TO CARRY
ON ITS BUSINESS AS NOW CONDUCTED (COLLECTIVELY, "PERMITS"), EXCEPT WHERE THE
FAILURE TO HAVE SUCH PERMITS COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
EACH NOTE PARTY IS QUALIFIED TO DO BUSINESS AS A FOREIGN ENTITY
IN EACH JURISDICTION IN WHICH IT IS REQUIRED TO BE SO QUALIFIED, WHICH
JURISDICTIONS AS OF THE CLOSING DATE ARE SPECIFIED ON SCHEDULE 4.1, EXCEPT WHERE
THE FAILURE TO BE SO QUALIFIED COULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
EXCEPT AS SET FORTH ON SCHEDULE 4.1, NO NOTE PARTY
OVER THE FIVE (5) YEAR PERIOD PRECEDING THE CLOSING DATE, (A) HAS HAD ANY NAME
OTHER THAN ITS CURRENT NAME OR (B) WAS INCORPORATED OR ORGANIZED UNDER THE LAWS
OF ANY JURISDICTION OTHER THAN ITS CURRENT JURISDICTION OF INCORPORATION OR
ORGANIZATION.
4.2
ORGANIZATION AND GOVERNMENTAL AUTHORIZATION;
NO CONTRAVENTION.
THE EXECUTION, DELIVERY AND PERFORMANCE BY EACH NOTE PARTY OF
THE OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY ARE WITHIN ITS POWERS, HAVE BEEN
DULY AUTHORIZED BY ALL NECESSARY ACTION PURSUANT TO ITS ORGANIZATIONAL
DOCUMENTS, REQUIRE NO FURTHER ACTION BY OR IN RESPECT OF, OR FILING WITH, ANY
GOVERNMENTAL