the Membership Interests except in
compliance with the Securities Act and any applicable state securities laws or
pursuant to any exemption therefrom.
SECTION 4.6
FINANCING. BUYER HAS AVAILABLE, AND ON THE CLOSING DATE
WILL HAVE AVAILABLE, SUFFICIENT FUNDS, AVAILABLE LINES OF CREDIT OR OTHER
SOURCES OF IMMEDIATELY AVAILABLE FUNDS TO ENABLE IT TO PURCHASE THE MEMBERSHIP
INTERESTS ON THE TERMS AND CONDITIONS OF THIS AGREEMENT. BUYER'S OBLIGATIONS
HEREUNDER ARE NOT SUBJECT TO ANY CONDITIONS REGARDING BUYER'S ABILITY TO OBTAIN
FINANCING FOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN.
SECTION 4.7
LITIGATION. AS OF THE DATE HEREOF, THERE ARE NO ACTIONS
PENDING OR, TO THE KNOWLEDGE OF BUYER, THREATENED, AGAINST BUYER OR ANY OF ITS
ASSETS, AT LAW, IN EQUITY OR OTHERWISE, IN, BEFORE, BY, OR OTHERWISE INVOLVING,
ANY GOVERNMENTAL ENTITY, ARBITRATOR OR OTHER PERSON THAT IS REASONABLY LIKELY TO
QUESTION, CHALLENGE THE VALIDITY OF, OR HAVE THE EFFECT OF PREVENTING, DELAYING,
MAKING ILLEGAL OR OTHERWISE INTERFERING WITH, THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREIN OR ANY ACTION TAKEN OR PROPOSED TO BE TAKEN BY BUYER
PURSUANT HERETO OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN.
SECTION 4.8
BROKERS AND FINDERS. NO AGENT, BROKER, INVESTMENT
BANKER, INTERMEDIARY, FINDER, PERSON OR FIRM ACTING ON BEHALF OF BUYER OR WHICH
HAS BEEN RETAINED BY OR IS AUTHORIZED TO ACT ON BEHALF OF BUYER IS OR WOULD BE
ENTITLED TO ANY BROKER'S OR FINDER'S FEE OR ANY OTHER COMMISSION OR SIMILAR FEE,
DIRECTLY OR INDIRECTLY, FROM ANY OF THE PARTIES HERETO IN CONNECTION WITH THE
EXECUTION OF THIS AGREEMENT OR UPON CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN.
ARTICLE V
COVENANTS
SECTION 5.1
OPERATION OF THE COMPANY. EXCEPT FOR MATTERS SET FORTH
IN SCHEDULE 5.1 OF THE DISCLOSURE SCHEDULE, PRIOR TO THE CLOSING, EXCEPT AS
REQUESTED OR CONSENTED TO BY BUYER IN WRITING, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED, AND EXCEPT AS OTHERWISE EXPRESSLY CONTEMPLATED
IN THIS AGREEMENT, SELLER SHALL, AND COVENANTS AND AGREES TO CAUSE THE COMPANY
TO:
(A)
OPERATE THE COMPANY ONLY IN THE ORDINARY COURSE OF BUSINESS;
(B)
USE ITS COMMERCIALLY REASONABLE EFFORTS TO PRESERVE INTACT THE
BUSINESS OF THE COMPANY, KEEP AVAILABLE THE SERVICES OF THE CURRENT OFFICERS,
EMPLOYEES, AND AGENTS OF THE COMPANY, AND MAINTAIN THE RELATIONSHIPS AND
GOODWILL WITH SUPPLIERS, DISTRIBUTORS, SALES REPRESENTATIVES, CUSTOMERS,
CLIENTS, LANDLORDS, LESSORS, CREDITORS, EMPLOYEES, AGENTS, AND OTHERS HAVING
BUSINESS RELATIONSHIPS WITH THE COMPANY; PROVIDED, HOWEVER, THAT NEITHER THIS
SECTION 5.1
16
nor any other provision of this Agreement shall require Seller or the Company or
any of their Affiliates to make any payment in respect of the foregoing;
(C)
NOT TAKE ANY AFFIRMATIVE ACTION, OR FAIL TO TAKE ANY REASONABLE
ACTION WITHIN THEIR OR ITS CONTROL, AS A RESULT OF WHICH ANY OF THE CHANGES OR
EVENTS LISTED IN SECTION 3.7 IS REASONABLY LIKELY TO OCCUR;
(D)
SUBJECT TO, AND TO THE EXTENT PERMITTED BY, ANY APPLICABLE LAWS,
POLICIES, PRACTICES, PROCEDURES OR DIRECTION OF ANY GOVERNMENTAL ENTITY, CONFER
WITH BUYER CONCERNING OPERATIONAL MATTERS OF A MATERIAL NATURE;
(E)
PROVIDE TO BUYER