THEIR RESPECTIVE JURISDICTIONS OF ORGANIZATION AND HAVE THE REQUISITE CORPORATE
POWER AND AUTHORITY (OR COMPARABLE ENTITY POWER AND AUTHORITY) TO OWN AND
OPERATE THEIR RESPECTIVE PROPERTIES AND TO CARRY ON THEIR RESPECTIVE BUSINESSES
AS THEY ARE NOW BEING CONDUCTED.
EACH OF THE ACQUIRED SUBSIDIARIES IS DULY
QUALIFIED TO DO BUSINESS OR DULY REGISTERED AS A FOREIGN BRANCH AND IS IN GOOD
STANDING IN EACH JURISDICTION IN WHICH THE NATURE OF ITS RESPECTIVE BUSINESSES
OR THE OWNERSHIP OR LEASING OF ITS RESPECTIVE PROPERTIES MAKES SUCH
QUALIFICATION OR REGISTRATION NECESSARY.
ALL OF THE OUTSTANDING SHARES OF
CAPITAL STOCK OF THE ACQUIRED SUBSIDIARIES, AND ALL OF THE OWNERSHIP INTERESTS
IN THE ACQUIRED SUBSIDIARIES THAT ARE NOT CORPORATIONS, HAVE BEEN DULY
AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE AND WERE NOT
ISSUED IN VIOLATION OF ANY PREEMPTIVE, PREFERENTIAL OR OTHER SIMILAR RIGHTS OF
ANY PERSON.
EXCEPT FOR THE CAPITAL STOCK OF, OR OWNERSHIP INTERESTS IN, THE
ACQUIRED SUBSIDIARIES, THE CORPORATION DOES NOT OWN OR CONTROL, DIRECTLY OR
INDIRECTLY, ANY INTEREST OR INVESTMENT IN ANY CORPORATION, PARTNERSHIP,
ASSOCIATION OR OTHER FORM OF BUSINESS ENTITY.
SECTION 4.23
BROKERS AND FINDERS.
EXCEPT FOR THE EVOLUTION GROUP, PLC
OR ENERGY CAPITAL SOLUTIONS, L.P., WHOSE FEES AND EXPENSES SHALL BE PAID IN
ACCORDANCE WITH SECTION 2.3 HEREOF, NO ACQUIRED ENTITY NOR ANY OF THE ACQUIRED
ENTITIES' OFFICERS, DIRECTORS OR EMPLOYEES HAS EMPLOYED ANY BROKER OR FINDER OR
INCURRED ANY LIABILITY FOR ANY BROKERAGE FEES, COMMISSIONS OR
35
FINDERS FEES IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
AND THE BUYER SHALL NOT HAVE ANY LIABILITY FOR ANY SUCH FEES OR COMMISSIONS.
SECTION 4.24
DISCLOSURE.
TO THE SELLERS' KNOWLEDGE, NO REPRESENTATION
OR WARRANTY OR OTHER STATEMENT MADE BY THE SELLERS IN THIS AGREEMENT, THE
CERTIFICATES DELIVERED BY OR ON BEHALF OF SELLERS PURSUANT TO SECTION 2.4 OR
SECTION 7.1 OF THIS AGREEMENT CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT
OR OMITS TO STATE A MATERIAL FACT NECESSARY TO MAKE ANY OF THEM, IN LIGHT OF THE
CIRCUMSTANCES IN WHICH IT WAS MADE, NOT MISLEADING.
SECTION 4.25
BOOKS AND RECORDS.
THE BOOKS OF ACCOUNT AND OTHER
FINANCIAL RECORDS OF THE ACQUIRED ENTITIES, ALL OF WHICH HAVE BEEN MADE
AVAILABLE TO THE BUYER, ARE COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS IN
RESPECT OF THE MATTERS DESCRIBED THEREIN, REPRESENT ACTUAL, BONA FIDE
TRANSACTIONS AND HAVE BEEN MAINTAINED IN ACCORDANCE WITH APPLICABLE LEGAL
REQUIREMENTS INCLUDING, SINCE DECEMBER 31, 2002, THE MAINTENANCE OF AN ADEQUATE
SYSTEM OF INTERNAL CONTROLS.
SECTION 4.26
CONDITION OF FACILITIES.
(A)
USE OF THE REAL PROPERTY FOR THE VARIOUS PURPOSES FOR WHICH IT IS
PRESENTLY BEING USED IS PERMITTED AS OF RIGHT UNDER ALL APPLICABLE ZONING LEGAL
REQUIREMENTS AND IS NOT SUBJECT TO "PERMITTED NONCONFORMING" USE OR STRUCTURE
CLASSIFICATIONS.
ALL IMPROVEMENTS TO REAL PROPERTY LEASED BY THE ACQUIRED
ENTITIES OR OTHERWISE USED IN THE ORDINARY COURSE OF BUSINESS BY THE ACQUIRED
ENTITIES ARE IN COMPLIANCE WITH ALL APPLICABLE LEGAL REQUIREMENTS, INCLUDING
THOSE PERTAINING TO ZONING AND BUILDING, AND ARE ACCEPTED AS IS.
TO THE