LAWS OF THE
JURISDICTION OF ITS ORGANIZATION WITH THE REQUISITE CORPORATE, LIMITED LIABILITY
COMPANY OR PARTNERSHIP, AS APPLICABLE, POWER AND AUTHORITY TO ENTER INTO AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS TO WHICH
IT IS A PARTY AND OTHERWISE TO CARRY OUT ITS OBLIGATIONS HEREUNDER AND
THEREUNDER.
THIS AGREEMENT, THE PLEDGE AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE SECURITIES ACCOUNT CONTROL AGREEMENT HAVE BEEN DULY AND
VALIDLY AUTHORIZED, EXECUTED AND DELIVERED ON BEHALF OF SUCH BUYER AND SHALL
CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF SUCH BUYER, ENFORCEABLE
AGAINST SUCH BUYER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY GENERAL PRINCIPLES OF EQUITY OR TO APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION AND OTHER
SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY, THE ENFORCEMENT OF APPLICABLE
CREDITORS' RIGHTS AND REMEDIES AND EXCEPT THAT THE INDEMNIFICATION PROVISIONS
UNDER THE REGISTRATION RIGHTS AGREEMENT MAY FURTHER BE LIMITED BY PRINCIPLES OF
PUBLIC POLICY.
(L)
RESIDENCY.
SUCH BUYER IS A RESIDENT OF THAT JURISDICTION SPECIFIED BELOW
ITS ADDRESS ON THE SCHEDULE OF BUYERS.
5
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth under the corresponding section of the disclosure schedule
supplied by the Company to each Buyer as of the date of this Agreement (the
"Disclosure Schedules"), the Company represents and warrants to each of the
Buyers that:
(A)
ORGANIZATION AND QUALIFICATION.
THE COMPANY AND ITS "SUBSIDIARIES" (WHICH
FOR PURPOSES OF THIS AGREEMENT MEANS ANY ENTITY, OTHER THAN AVII, IN WHICH THE
COMPANY, DIRECTLY OR INDIRECTLY, OWNS 10% OR MORE OF THE CAPITAL STOCK OR HOLDS
10% OR MORE OF AN EQUITY OR SIMILAR INTEREST) ARE CORPORATIONS DULY ORGANIZED
AND VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION IN
WHICH THEY ARE INCORPORATED, AND HAVE THE REQUISITE CORPORATE 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 CORPORATION 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 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 OR CONDITION (FINANCIAL OR OTHERWISE) OF THE COMPANY AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, OR ON THE TRANSACTIONS CONTEMPLATED HEREBY AND
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.
THE
COMPANY HAS NO SUBSIDIARIES EXCEPT AS SET FORTH ON SCHEDULE 3(A).
NONE OF SUCH
SUBSIDIARIES IS MATERIAL TO THE COMPANY.
(B)
AUTHORIZATION; ENFORCEMENT; VALIDITY.
THE COMPANY HAS THE REQUISITE
CORPORATE POWER AND AUTHORITY TO ENTER INTO