BUSINESS DAYS FOLLOWING SUCH DISCOVERY; PROVIDED THAT THE
FAILURE TO GIVE NOTICE WITHIN THREE BUSINESS DAYS DOES NOT PRECLUDE SUBSEQUENT
NOTICE.
SECTION 4.03
REPRESENTATIONS AND WARRANTIES OF LLC II.
(A)
REPRESENTATIONS AND WARRANTIES OF LLC II.
AS OF THE DATE HEREOF AND AS
OF THE TERMINATION DATE, LLC II HEREBY REPRESENTS AND WARRANTS TO, AND AGREES
WITH, COLUMBUS BANK THAT:
(I)
ORGANIZATION.
LLC II IS A LIMITED LIABILITY COMPANY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF NEVADA.
SCHEDULE 4.03(A) SETS FORTH AN ACCURATE AND COMPLETE LIST IDENTIFYING THE
FOLLOWING: (A) THE LLC II'S NAME AS IT APPEARS IN OFFICIAL FILINGS IN THE STATE
OF ITS ORGANIZATION; (B) THE TYPE OF ENTITY OF THE LLC II; (C) THE
ORGANIZATIONAL IDENTIFICATION NUMBER ISSUED BY THE LLC II'S STATE OF
ORGANIZATION OR A STATEMENT THAT NO SUCH NUMBER HAS BEEN ISSUED; AND (D) THE LLC
II'S STATE OF ORGANIZATION.
THE LLC II HAS ONLY ONE STATE OF ORGANIZATION.
(II)
CAPACITY; AUTHORITY; VALIDITY.
LLC II HAS ALL NECESSARY POWER AND
AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM ALL OF THE OBLIGATIONS TO
BE PERFORMED BY IT UNDER THIS AGREEMENT.
THIS AGREEMENT AND THE CONSUMMATION BY
LLC II OF THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE CONVEYANCE PAPERS HAVE
BEEN DULY
13
AND VALIDLY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF LLC II, AND THIS
AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY LLC II AND CONSTITUTES THE
VALID AND BINDING OBLIGATION OF LLC II AND IS ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS (EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY EQUITABLE LIMITATIONS ON
THE AVAILABILITY OF EQUITABLE REMEDIES AND BY BANKRUPTCY AND OTHER LAWS
AFFECTING THE RIGHTS OF CREDITORS GENERALLY).
(III)
CONFLICTS; DEFAULTS.
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT OR THE CONVEYANCE PAPERS BY LLC II NOR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE CONVEYANCE PAPERS BY LLC II,
WILL (I) CONFLICT WITH, RESULT IN THE BREACH OF, CONSTITUTE A DEFAULT UNDER, OR
ACCELERATE THE PERFORMANCE PROVIDED BY THE TERMS OF ANY CONTRACT, INSTRUMENT OR
COMMITMENT TO WHICH LLC II IS A PARTY OR BY WHICH IT IS BOUND, (II) VIOLATE THE
CERTIFICATE OF ORGANIZATION OR LIMITED LIABILITY COMPANY AGREEMENT, OR OTHER
EQUIVALENT ORGANIZATIONAL DOCUMENTS OF LLC II, (III) REQUIRE ANY CONSENT OR
APPROVAL UNDER ANY JUDGMENT, ORDER, WRIT, DECREE, PERMIT OR LICENSE TO WHICH LLC
II IS A PARTY OR BY WHICH IT IS BOUND, OR (IV) REQUIRE THE CONSENT OR APPROVAL
OF ANY OTHER PARTY TO ANY CONTRACT, INSTRUMENT OR COMMITMENT TO WHICH LLC II IS
A PARTY OR BY WHICH IT IS BOUND.
LLC II IS NOT SUBJECT TO ANY AGREEMENT WITH
ANY REGULATORY AUTHORITY WHICH WOULD PREVENT THE CONSUMMATION BY LLC II OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(IV)
LITIGATION.
THERE IS NO CLAIM, OR ANY LITIGATION, PROCEEDING,
ARBITRATION, INVESTIGATION OR CONTROVERSY PENDING, TO WHICH LLC II IS A PARTY
AND BY WHICH IT IS BOUND, WHICH ADVERSELY AFFECTS LLC