EQUAL TO THE AMOUNT OF
INDEBTEDNESS SO CONVERTED AND RETIRED (WITH ANY AMOUNT NOT CONVERTIBLE INTO A
WHOLE NUMBER OF SHARES BEING SETTLED BY THE COMPANY IN CASH) PLUS WARRANTS
DETERMINED IN ACCORDANCE WITH THIS AGREEMENT.
(EE)
DISCLOSURE.
THE COMPANY CONFIRMS THAT NEITHER
IT NOR ANY PERSON ACTING ON ITS BEHALF HAS PROVIDED ANY INVESTOR OR ITS
RESPECTIVE AGENTS OR COUNSEL WITH ANY INFORMATION THAT THE COMPANY BELIEVES
CONSTITUTES MATERIAL, NON-PUBLIC INFORMATION EXCEPT INSOFAR AS THE EXISTENCE AND
TERMS OF THE PROPOSED TRANSACTIONS HEREUNDER MAY CONSTITUTE SUCH INFORMATION.
THE COMPANY UNDERSTANDS AND CONFIRMS THAT THE INVESTORS WILL RELY ON THE
FOREGOING REPRESENTATIONS AND COVENANTS IN EFFECTING TRANSACTIONS IN SECURITIES
OF THE COMPANY.
ALL DISCLOSURE PROVIDED TO THE INVESTORS REGARDING THE COMPANY,
ITS BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, FURNISHED BY OR ON BEHALF
OF THE COMPANY (INCLUDING THE COMPANY'S REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT) ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AND DO NOT
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(FF)
ENVIRONMENTAL LAWS.
THE COMPANY AND ITS
SUBSIDIARIES (I) ARE IN COMPLIANCE WITH ANY AND ALL ENVIRONMENTAL LAWS (AS
HEREINAFTER DEFINED), (II) HAVE RECEIVED ALL PERMITS, LICENSES OR OTHER
APPROVALS REQUIRED OF THEM UNDER APPLICABLE ENVIRONMENTAL LAWS TO CONDUCT THEIR
RESPECTIVE BUSINESSES AND (III) ARE IN COMPLIANCE WITH ALL TERMS AND CONDITIONS
OF ANY SUCH PERMIT, LICENSE OR APPROVAL WHERE, IN EACH OF THE FOREGOING CLAUSES
(I), (II) AND (III), THE
17
FAILURE TO SO COMPLY COULD 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.
3.2
REPRESENTATIONS AND WARRANTIES OF THE
INVESTORS.
EACH INVESTOR HEREBY, FOR ITSELF 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 APPLICABLE TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT
ITS OBLIGATIONS THEREUNDER. THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH
INVESTOR OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT HAVE BEEN DULY
AUTHORIZED BY ALL