THE SELLER FURNISHED PURSUANT TO
SECTION 7.4 OF THE AGREEMENT; AND
(B)
TO REPORT TO THE BUYER SALES MADE PURSUANT
TO THE REGISTRATION STATEMENT COVERING THE SUBMILESTONE SHARES.
5.
Representations of the Seller.
The
Seller and the Primary Member jointly and severally represent and warrant to the
Buyer that the statements contained in this Section 5 are true and correct as of
the date of this Agreement.
(A)
ORGANIZATION, QUALIFICATION AND CORPORATE
POWER.
THE SELLER IS A LIMITED LIABILITY COMPANY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS.
(B)
AUTHORIZATION OF TRANSACTION.
THE SELLER
HAS ALL REQUISITE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AMENDMENT AND
TO PERFORM ITS OBLIGATIONS HEREUNDER.
THE EXECUTION AND DELIVERY BY THE SELLER
OF THIS AMENDMENT AND THE PERFORMANCE BY THE SELLER OF THIS AMENDMENT AND THE
CONSUMMATION BY THE SELLER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY LIMITED LIABILITY COMPANY
ACTION ON THE PART OF THE SELLER.
THIS AMENDMENT HAS BEEN DULY AND VALIDLY
EXECUTED AND
2
DELIVERED BY THE SELLER AND CONSTITUTES A VALID AND BINDING OBLIGATION OF THE
SELLER, ENFORCEABLE AGAINST THE SELLER IN ACCORDANCE WITH ITS TERMS.
(C)
NONCONTRAVENTION.
NEITHER THE EXECUTION
AND DELIVERY BY THE SELLER OF THIS AMENDMENT NOR THE CONSUMMATION BY THE SELLER
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, WILL (A) CONFLICT WITH OR
VIOLATE ANY PROVISION OF THE CERTIFICATE OF ORGANIZATION OR THE OPERATING
AGREEMENT OF THE SELLER, (B) REQUIRE ON THE PART OF THE SELLER ANY NOTICE TO OR
FILING WITH, OR ANY PERMIT, AUTHORIZATION, CONSENT OR APPROVAL OF, ANY
GOVERNMENTAL ENTITY, (C) CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE (WITH
OR WITHOUT DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT UNDER, RESULT IN THE
ACCELERATION OF OBLIGATIONS UNDER, CREATE IN ANY PARTY THE RIGHT TO TERMINATE,
MODIFY OR CANCEL, OR REQUIRE ANY NOTICE, CONSENT OR WAIVER UNDER, ANY CONTRACT
OR INSTRUMENT TO WHICH THE SELLER IS A PARTY OR BY WHICH THE SELLER IS BOUND OR
TO WHICH ANY OF ITS ASSETS ARE SUBJECT, (D) RESULT IN THE IMPOSITION OF ANY
SECURITY INTEREST UPON ANY ASSETS OF THE SELLER OR (E) VIOLATE ANY ORDER, WRIT,
INJUNCTION, DECREE, STATUTE, RULE OR REGULATION APPLICABLE TO THE SELLER OR ANY
OF ITS PROPERTIES OR ASSETS.
(D)
SHARES.
(I) SELLER IS KNOWLEDGEABLE,
SOPHISTICATED AND EXPERIENCED IN MAKING, AND IS QUALIFIED TO MAKE, DECISIONS
WITH RESPECT TO INVESTMENTS IN SECURITIES REPRESENTING AN INVESTMENT DECISION
LIKE THAT INVOLVED IN THIS AMENDMENT, INCLUDING INVESTMENTS IN SECURITIES ISSUED
BY THE BUYER AND COMPARABLE ENTITIES, AND HAS HAD THE OPPORTUNITY TO REQUEST,
RECEIVE, REVIEW AND CONSIDER ALL INFORMATION IT DEEMS RELEVANT IN MAKING AN
INFORMED DECISION TO ACQUIRE THE SHARES; (II) SELLER IS ACQUIRING THE SHARES SET
FORTH HEREIN IN THE ORDINARY COURSE OF ITS BUSINESS AND FOR ITS OWN ACCOUNT FOR
INVESTMENT ONLY AND WITH NO PRESENT INTENTION OF DISTRIBUTING ANY OF SUCH SHARES
OR ANY ARRANGEMENT OR UNDERSTANDING WITH