Common use of Corporate Existence and Power; Subsidiaries Clause in Contracts

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and Bylaws"), have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole, on the transactions contemplated hereby or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of the Seller to perform its obligations hereunder or under the Related Documents. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "“Articles and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests, or is considered a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission under the Exchange Act. The Seller has no Subsidiaries other than the followingthose listed on Schedule 3.1 hereto, each of which, unless otherwise indicated, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), ) or results of operations or current prospects, taken as a whole. True and complete copies of the Seller's ’s Articles of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "“Articles and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole, on the transactions contemplated hereby or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of the Seller to perform its obligations hereunder or under the Related Documents. True and complete copies of the Seller's ’s Articles of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "“Articles and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests, or is considered a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission under the Exchange Act. The Seller has no Subsidiaries other than the followingthose listed on Schedule 3.1 hereto, each of which, unless otherwise indicated, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse EffectMATERIAL ADVERSE EFFECT" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles of Incorporation, as amendedamended (the "ARTICLES"), and Bylaws, as amendedamended (the "BYLAWS"), as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and BylawsARTICLES AND BYLAWS"), have previously been provided to the Purchasers. For purposes of this Agreement, the term "SubsidiarySUBSIDIARY" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingNational Coal Corporation, each of which, unless otherwise indicated, a Tennessee corporation which is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state jurisdictions in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's ’s Articles of Incorporation, as amendedamended (the “Articles”), and Bylaws, as amendedamended (the “Bylaws”), as currently in effect and as will be in effect on the Closing Date (collectively, the "“Articles and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingVelox Corporation, each of which, unless otherwise indicated, which is wholly-approximately 50% owned by the Seller:..

Corporate Existence and Power; Subsidiaries. The Seller Each of the Company and its the Significant Subsidiaries are corporations is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the state in which they are incorporated, jurisdiction of its incorporation and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are is duly qualified to do business as a foreign corporation and are in good standing in each additional jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified qualify would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, i) the assets, liabilities (including contingent liabilities), cash flows, financial condition, results of operations operations, or current prospects, business of the Company and the Significant Subsidiaries taken as a whole. True and complete copies whole or (ii) the ability of the Seller's Articles Company to consummate the transactions contemplated hereby (each, a "Material Adverse Effect"). The jurisdiction of Incorporation, incorporation of the Company and the Subsidiaries are set forth on Schedule 3.1 hereto. Except as amended, and Bylaws, as amended, as currently in effect and as will be in effect set forth on the Closing Date (collectivelySchedule 3.1 hereto, the "Articles and Bylaws"), have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller Company has no Subsidiaries Subsidiaries, nor are there any other businesses in which the Company has an equity stake, other than the followingSignificant Subsidiaries and inactive Subsidiaries. Each of the Company and the Significant Subsidiaries has all requisite power and authority (corporate and otherwise) to own its properties and to carry on its business as now being conducted and, each in the case of whichthe Company and XOXO, unless otherwise indicatedto execute, is wholly-deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. All of the issued and outstanding securities of XOXO are owned by ECI, and all of the issued and outstanding securities of ECI are owned by the Seller:Company.

Corporate Existence and Power; Subsidiaries. The Seller (a) Each of the Company and its Subsidiaries are corporations is a corporation duly incorporated, validly existing and in good standing under the laws Laws of its jurisdiction of incorporation. Each of the state in which they are incorporated, Company and have its Subsidiaries has all corporate powers and authority required to own, lease and operate its respective properties and other assets and to carry on their its business as now conducted. The Seller Company has all corporate powers and authority to execute and deliver this Agreement, to consummate the Merger and the other transactions contemplated hereby and to perform each of its obligations hereunder. (b) Each of the Company and its Subsidiaries are is duly qualified to do business as a foreign corporation and are is in good standing in each jurisdiction where the character of the property owned or leased by them it or the nature of their its activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified or be in good standing would not not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect Company. (c) The Company has made available to any person or entity, a material adverse effect on its Parent and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True Merger Sub true and complete copies of the Seller's Articles currently effective articles of Incorporationincorporation and bylaws or similar organizational and governing documents of the Company and its Subsidiaries. Neither the Company nor any of its Subsidiaries is in violation of its articles of incorporation or bylaws or similar organizational and governing documents. The Company has made available to Parent and Merger Sub true and complete copies of the minutes (or, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectivelycase of draft minutes, the "Articles and Bylaws"), have previously been provided to most recent drafts thereof as of the Purchasers. For purposes date of this Agreement) of all meetings of the Company Shareholders, the term "Subsidiary" or "Subsidiaries" meansCompany Board and each committee of the Company Board held since January 1, with respect 2006, other than the minutes of the meeting of the Company Board convened in order to evaluate the Merger and the other transactions contemplated by this Agreement and any entityissues related thereto. (d) Section 3.1 of the Disclosure Letter lists all of the Subsidiaries of the Company. All the outstanding shares of capital stock of, any corporation or other organization equity or voting interests in, each Subsidiary are duly authorized, validly issued, fully paid and nonassessable and are owned directly or indirectly by the Company, free and clear of which securities all Liens and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other ownership interests having ordinary voting power to elect a majority of interests). Except for the board of directors capital stock of, or other persons performing similar functions are directly equity or indirectly owned by such entity or voting interests in, its Subsidiaries, neither the Company nor any of which such entity is a partner or isits Subsidiaries owns, directly or indirectly, any stock, membership interest, partnership interest, joint venture interest, or other equity or voting interest in, or any interest convertible into, exercisable or exchangeable for any of the beneficial owner foregoing, and neither the Company nor any of 50% its Subsidiaries is under any current or more of prospective obligation to form or participate in, provide funds to, make any class of equity securities loan, capital contribution, guarantee, credit enhancement or equivalent profit participation interests. The Seller has no Subsidiaries other than the followinginvestment in, each of whichor assume any liability or obligation of, unless otherwise indicated, is wholly-owned by the Seller:any Person.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole, on the transactions contemplated hereby 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 hereunder or under the Related Documents. True and complete copies of the Seller's Articles of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and Bylaws"), have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:

Corporate Existence and Power; Subsidiaries. The Except as set forth in Section 3.1 of the Seller Disclosure Schedule previously delivered by the Seller to Purchaser (the "Seller Disclosure Schedule"), the Seller and each of its Subsidiaries are corporations is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the state in which they are incorporated, jurisdiction of its organization and have has all corporate powers required to carry on their its business as now conducted. The Seller and its Subsidiaries are is duly qualified to do business as a foreign corporation and are is in good standing in each jurisdiction where the character of the property owned or leased by them it or the nature of their its activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect on the Seller or any of its SubsidiariesSeller. For purposes of this Agreement, the term "Material Adverse Effect" means, when used in connection with respect any party, any change, effect, event, occurrence, condition or development or state of facts that is or would reasonably be expected to any person be materially adverse to the assets or entity, a material adverse effect on its financial condition of such party and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date amended (collectively, the "Articles Charter and Bylaws"), ) have previously been provided to the PurchasersPurchaser. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by as set forth in Exhibit 21 to the Seller:'s Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (the "2003 10-K").

Corporate Existence and Power; Subsidiaries. The Except as set forth in Section 3.1 of the Seller Disclosure Schedule previously delivered by the Seller to Purchaser (the “Seller Disclosure Schedule”), the Seller and each of its Subsidiaries are corporations is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the state in which they are incorporated, jurisdiction of its organization and have has all corporate powers required to carry on their its business as now conducted. The Seller and its Subsidiaries are is duly qualified to do business as a foreign corporation and are is in good standing in each jurisdiction where the character of the property owned or leased by them it or the nature of their its activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect on the Seller or any of its SubsidiariesSeller. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, when used in connection with respect any party, any change, effect, event, occurrence, condition or development or state of facts that is or would reasonably be expected to any person be materially adverse to the assets or entity, a material adverse effect on its financial condition of such party and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date amended (collectively, the "Articles “Charter and Bylaws"), ”) have previously been provided to the PurchasersPurchaser. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by as set forth in Exhibit 21 to the Seller:’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (the “2003 10-K”).

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse EffectMATERIAL ADVERSE EFFECT" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles of Incorporation, as amendedamended (the "ARTICLES"), and Bylaws, as amendedamended (the "BYLAWS"), as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and BylawsARTICLES AND BYLAWS"), have previously been provided to the PurchasersPurchaser. For purposes of this Agreement, the term "SubsidiarySUBSIDIARY" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingNational Coal Corporation, each of which, unless otherwise indicated, a Tennessee corporation which is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries (as defined below) are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's ’s Articles of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "“Articles and Bylaws"”), have previously been provided made available to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse EffectMATERIAL ADVERSE EFFECT" means, with respect to any person or entity, a material adverse effect on its and or its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), ) or results of operations or current prospectsoperations, taken as a whole. True and complete copies of the Seller's Articles Certificate of Incorporation, as amendedamended (the "CERTIFICATE"), and Bylaws, as amendedamended (the "BYLAWS"), as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and BylawsCERTIFICATE AND BYLAWS"), have previously been provided to the Purchasers. For purposes of this Agreement, the term "SubsidiarySUBSIDIARY" or "SubsidiariesSUBSIDIARIES" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than Subsidiaries. Therefore, all references in the following, each representations and warranties in this Article III to "the Seller and its Subsidiaries" or words of which, unless otherwise indicated, is wholly-owned by similar import shall be deemed to be references only to the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporatedincorporated or continued, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles “Certificate and Bylaws"”), have previously been provided or made available to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingas set forth on Schedule 3.1, each of which, unless otherwise indicatedindicated on Schedule 3.1, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller Company and its Subsidiaries (as defined below) are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller Company and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, result in (i) a material adverse effect on its and its Subsidiaries' condition the legality, validity or enforceability of any Transaction Document (financial or otherwiseas defined below), business, properties, assets, liabilities (including contingent liabilities), results ii) a material adverse effect on the business or financial condition of operations or current prospectsthe Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company's ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a "MATERIAL ADVERSE EFFECT"). True and complete copies of the SellerCompany's Articles of Incorporation, as amendedamended (the "CERTIFICATE"), and Bylaws, as amendedamended (the "BYLAWS"), as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles and BylawsCERTIFICATE AND BYLAWS"), have previously been provided made available to the Purchasers. For purposes of this Agreement, the term "SubsidiarySUBSIDIARY" or "SubsidiariesSUBSIDIARIES" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and or its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), and results of operations or current prospects, taken as a wholeoperations. True and complete copies of the Seller's Articles Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date amended (collectively, the "Articles Charter" and Bylaws"), ) have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by as set forth in Exhibit 21 to the Seller:'s annual report on Form 10-K for the fiscal year ended December 31, 2002.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospectsprospects as described in the Seller’s SEC Documents (as defined below) filed within the past year, taken as a wholeon the transactions contemplated hereby or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of the Seller to perform its obligations hereunder or under the Related Documents. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles “Certificate and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests, or is considered a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X promulgated by the Commission under the Exchange Act. The Seller has no Subsidiaries other than the followingthose listed on Schedule 3.19 hereto, each of which, unless otherwise indicated, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and each of its Subsidiaries are is duly qualified to do business as a foreign corporation and are is in good standing in each jurisdiction where the character of the property owned or leased by them it or the nature of their its activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its SubsidiariesEffect. For purposes of this Agreement, the term "“Material Adverse Effect" means, with respect to any person or entity, ” means a material adverse effect on its the Seller’s and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amendedamended (the “Certificate”), and Bylaws, as amendedamended (the “Bylaws”), as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles “Certificate and Bylaws"”), have previously been provided to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state jurisdiction in which they are incorporatedincorporated or continued, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles “Certificate and Bylaws"”), have previously been provided or made available to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingas set forth on Schedule 3.1, each of which, unless otherwise indicatedindicated on Schedule 3.1, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and or its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), and results of operations or current prospects, taken as a wholeoperations. True and complete copies of the Seller's Articles Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date amended (collectively, the "Articles Charter and Bylaws"), ) have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by as set forth in Exhibit 21 to the Seller:'s annual report on Form 10-K for the fiscal year ended December 31, 2002.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporated, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and or its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), and results of operations or current prospects, taken as a wholeoperations. True and complete copies of the Seller's Articles Certificate of Incorporation, as amendedamended (including without limitation the Certificate of Designation and Certificate of Increase with respect to the Series D Preferred Stock (as hereinafter defined)), and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date amended (collectively, the "Articles Charter" and Bylaws"), ) have previously been provided to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by as set forth in Exhibit 21 to the Seller:'s annual report on Form 10-K for the fiscal year ended December 31, 2002.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations duly incorporated, validly existing and in good standing under the laws of the state in which they are incorporatedincorporated or continued, and have all corporate powers required to carry on their business as now conducted. The Seller and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this Agreement, the term "Material Adverse Effect" means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles Certificate and Bylaws"), have previously been provided or made available to the Purchasers. For purposes of this Agreement, the term "Subsidiary" or "Subsidiaries" means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the followingas set forth on Schedule 3.1, each of which, unless otherwise indicatedindicated on Schedule 3.1, is wholly-owned by the Seller:.

Corporate Existence and Power; Subsidiaries. The Seller and its Subsidiaries are corporations or other organizations duly incorporatedincorporated or organized (as the case may be) and validly existing, validly existing and the Seller is in good standing standing, in each case under the laws of the state jurisdiction in which they are incorporated, incorporated or organized. The Seller and its Subsidiaries have all corporate powers required to carry on their business as now conducted. The Seller conducted and its Subsidiaries are duly qualified to do business as a foreign corporation and are in good standing in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller or any of its SubsidiariesSeller. For purposes of this Agreement, the term "“Material Adverse Effect" ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries' ’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller's Articles ’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the "Articles “Certificate and Bylaws"”), have previously been provided or made available to the Purchasers. For purposes of this Agreement, the term "“Subsidiary" ” or "“Subsidiaries" ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests. The Seller has no Subsidiaries other than the following, each of which, unless otherwise indicated, is wholly-owned by the Seller:.