AUTHORITY; ENFORCEABILITY. BUYER HAS THE FULL
LEGAL RIGHT, REQUISITE CORPORATE POWER AND CORPORATE AUTHORITY AND HAS TAKEN ALL
CORPORATE ACTION NECESSARY IN ORDER TO EXECUTE, DELIVER AND PERFORM FULLY ITS
OBLIGATIONS UNDER THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREIN. THIS AGREEMENT IS A VALID AND BINDING AGREEMENT OF BUYER, ENFORCEABLE
AGAINST BUYER IN ACCORDANCE WITH ITS TERMS, SUBJECT TO THE BANKRUPTCY EXCEPTION.
SECTION 4.3
CONSENTS AND APPROVALS. EXCEPT AS SET FORTH IN SCHEDULE
3.4 OF THE DISCLOSURE SCHEDULE, AND ASSUMING THAT THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN SECTION 3.4 ARE TRUE AND CORRECT, NO NOTICES,
REPORTS, SUBMISSIONS, APPLICATIONS OR OTHER FILINGS ARE REQUIRED TO BE MADE BY
BUYER WITH, NOR ARE ANY CONSENTS, REGISTRATIONS, APPROVALS, DECLARATIONS,
PERMITS, EXPIRATION OF ANY APPLICABLE WAITING PERIODS OR AUTHORIZATIONS REQUIRED
TO BE OBTAINED BY BUYER FROM, ANY GOVERNMENTAL ENTITY, IN CONNECTION WITH THE
EXECUTION OR DELIVERY OF THIS AGREEMENT BY BUYER, THE PERFORMANCE BY BUYER OF
ITS OBLIGATIONS HEREUNDER OR THE CONSUMMATION BY BUYER OF THE TRANSACTIONS
CONTEMPLATED HEREIN THE FAILURE TO MAKE OR OBTAIN ANY OR ALL OF WHICH IS
REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT ON BUYER. IN ADDITION, THE
PARTIES HERETO ACKNOWLEDGE THAT BUYER WILL FILE ONE OR MORE CURRENT REPORTS ON
FORM 8-K WITH THE SEC RELATING TO THE TRANSACTIONS CONTEMPLATED HEREIN.
SECTION 4.4
NO VIOLATIONS. ASSUMING THE MAKING OF THE FILINGS AND
PROCUREMENT OF THE CONSENTS DESCRIBED IN SECTION 4.3, THE EXECUTION AND DELIVERY
OF THIS AGREEMENT BY BUYER DOES NOT, AND THE PERFORMANCE AND CONSUMMATION BY
BUYER OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN WILL NOT, DIRECTLY OR
INDIRECTLY (WITH OR WITHOUT THE GIVING OF NOTICE OR THE LAPSE OF TIME OR BOTH):
(A)
VIOLATE THE ARTICLES OF ORGANIZATION OR BY-LAWS OF BUYER;
(B)
CONTRAVENE, CONFLICT WITH, OR CONSTITUTE OR RESULT IN A BREACH OR
VIOLATION OF, OR A DEFAULT UNDER, OR THE CANCELLATION, MODIFICATION OR
TERMINATION OF, OR THE ACCELERATION OF, ANY PROVISION OF ANY CONTRACT BY WHICH
BUYER IS BOUND, OR TO WHICH ANY ASSETS OR PROPERTY OF BUYER IS SUBJECT;
(C)
REQUIRE BUYER TO OBTAIN THE CONSENT, WAIVER, AUTHORIZATION OR
APPROVAL OF, OR GIVE NOTICE TO, ANY PERSON UNDER ANY CONTRACT BY WHICH BUYER IS
BOUND, OR TO WHICH ANY ASSETS OR PROPERTY OF BUYER IS SUBJECT; OR
(D)
VIOLATE ANY APPLICABLE LAW,
except, in the case of each of (b) through (d), inclusive, which is not
reasonably likely to have a Material Adverse Effect on Buyer.
SECTION 4.5
SECURITIES ACT. BUYER IS ACQUIRING THE MEMBERSHIP
INTERESTS FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO THEIR DISTRIBUTION WITHIN
THE MEANING OF SECTION 2(11) OF THE
15
Securities Act. Buyer has not, directly or indirectly, offered the Membership
Interests to anyone or solicited any offer to buy the Membership Interests from
anyone, so as to bring such offer and sale of the Membership Interests by Buyer
within the registration requirements of the Securities Act. Buyer will not sell,
convey, transfer or offer for sale any of