IN THE
REGISTRATION STATEMENT IN AND THE PROSPECTUS, THE COMPANY OWNS, DIRECTLY OR
INDIRECTLY, ALL OF THE EQUITY INTERESTS OF THE SUBSIDIARY FREE AND CLEAR OF ANY
LIEN, CHARGE, SECURITY INTEREST, ENCUMBRANCE, RIGHT OF FIRST REFUSAL OR OTHER
RESTRICTION, AND ALL THE EQUITY INTERESTS OF THE SUBSIDIARY ARE VALIDLY ISSUED
AND ARE FULLY PAID, NONASSESSABLE AND FREE OF PREEMPTIVE AND SIMILAR RIGHTS.
6
(H)
NO VIOLATION OR DEFAULT.
NEITHER THE
COMPANY NOR ITS SUBSIDIARY ARE (I) IN VIOLATION OF ITS CHARTER OR BY-LAWS OR
SIMILAR ORGANIZATIONAL DOCUMENTS; (II) IN DEFAULT, AND NO EVENT HAS OCCURRED
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE SUCH A DEFAULT, IN
THE DUE PERFORMANCE OR OBSERVANCE OF ANY TERM, COVENANT OR CONDITION CONTAINED
IN ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN AGREEMENT OR OTHER AGREEMENT OR
INSTRUMENT TO WHICH THE COMPANY OR ITS SUBSIDIARY ARE A PARTY OR BY WHICH THE
COMPANY OR ITS SUBSIDIARY ARE BOUND OR TO WHICH ANY OF THE PROPERTY OR ASSETS OF
THE COMPANY OR ITS SUBSIDIARY ARE SUBJECT; OR (III) IN VIOLATION OF ANY LAW OR
STATUTE OR ANY JUDGMENT, ORDER, RULE OR REGULATION OF ANY COURT OR ARBITRATOR OR
GOVERNMENTAL OR REGULATORY AUTHORITY, EXCEPT, IN THE CASE OF EACH OF CLAUSES
(II) AND (III) ABOVE, FOR ANY SUCH VIOLATION OR DEFAULT THAT WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
TO THE COMPANY'S KNOWLEDGE, NO OTHER PARTY UNDER ANY MATERIAL
CONTRACT OR OTHER AGREEMENT TO WHICH IT OR A SUBSIDIARY IS A PARTY IS IN DEFAULT
IN ANY RESPECT THEREUNDER WHERE SUCH DEFAULT WOULD HAVE A MATERIAL ADVERSE
EFFECT.
(I)
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS
SET FORTH IN OR OTHERWISE CONTEMPLATED BY THE REGISTRATION STATEMENT (EXCLUSIVE
OF ANY AMENDMENT THEREOF) OR THE PROSPECTUS (EXCLUSIVE OF ANY SUPPLEMENT
THERETO), SINCE THE DATE OF THE MOST RECENT FINANCIAL STATEMENTS OF THE COMPANY
INCLUDED OR INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT AND THE
PROSPECTUS AND PRIOR TO EACH SETTLEMENT DATE, (I) THERE HAS NOT BEEN AND WILL
NOT HAVE BEEN ANY CHANGE IN THE CAPITAL STOCK OF THE COMPANY (EXCEPT FOR CHANGES
IN THE NUMBER OF OUTSTANDING SHARES OF COMMON STOCK OF THE COMPANY DUE TO THE
ISSUANCE OF SHARES UPON THE EXERCISE OR CONVERSION OF SECURITIES EXERCISABLE
FOR, OR CONVERTIBLE INTO, SHARES OF COMMON STOCK OUTSTANDING ON THE DATE HEREOF)
OR LONG-TERM DEBT OF THE COMPANY OR OF ITS SUBSIDIARY OR ANY DIVIDEND OR
DISTRIBUTION OF ANY KIND DECLARED, SET ASIDE FOR PAYMENT, PAID OR MADE BY THE
COMPANY ON ANY CLASS OF CAPITAL STOCK, THAT HAS RESULTED IN OR THAT WOULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT TO THE COMPANY AND
ITS SUBSIDIARY TAKEN AS A WHOLE; (II) OTHER THAN THIS AGREEMENT, NEITHER THE
COMPANY NOR ITS SUBSIDIARY HAVE ENTERED OR WILL ENTER INTO ANY TRANSACTION OR
AGREEMENT, NOT IN THE ORDINARY COURSE OF BUSINESS, THAT IS MATERIAL TO THE
COMPANY AND ITS SUBSIDIARY TAKEN AS A WHOLE OR INCURRED