TANGIBLE OR INTANGIBLE, WHICH IS USED
IN THE ACQUIRED BUSINESS OR WITH THE ACQUIRED ASSETS, (B) HAS ANY CLAIM OR CAUSE
OF ACTION AGAINST THE SELLER WITH RESPECT TO THE ACQUIRED BUSINESS OR ACQUIRED
ASSETS, OR (C) OWES ANY MONEY TO, OR IS OWED ANY MONEY BY, THE SELLER WITH
RESPECT TO THE ACQUIRED BUSINESS.
SECTION 2.16 OF THE DISCLOSURE SCHEDULE
DESCRIBES ANY TRANSACTIONS OR RELATIONSHIPS BETWEEN THE SELLER AND ANY AFFILIATE
THEREOF WHICH OCCURRED OR HAVE EXISTED SINCE THE BEGINNING OF THE TIME PERIOD
COVERED BY THE FINANCIAL STATEMENTS.
2.17
BROKERS' FEES.
THE SELLER HAS NO LIABILITY OR
OBLIGATION TO PAY ANY FEES OR COMMISSIONS TO ANY BROKER, FINDER OR AGENT WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
2.18
DISCLOSURE.
NO REPRESENTATION OR WARRANTY BY THE
SELLER AND THE PRIMARY MEMBER CONTAINED IN THIS AGREEMENT, AND NO STATEMENT
CONTAINED IN THE DISCLOSURE SCHEDULE OR ANY OTHER DOCUMENT, CERTIFICATE OR OTHER
INSTRUMENT DELIVERED OR TO BE DELIVERED BY OR ON BEHALF OF THE SELLER PURSUANT
TO THIS AGREEMENT, CONTAINS OR WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMITS OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH IT WAS OR WILL BE MADE, IN ORDER TO MAKE THE
STATEMENTS HEREIN OR THEREIN NOT MISLEADING.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller and the Primary Member that the
statements contained in this Article III are true and correct as of the date of
this Agreement.
3.1
ORGANIZATION AND CORPORATE POWER.
THE BUYER
IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF DELAWARE.
THE BUYER HAS ALL REQUISITE CORPORATE POWER AND
AUTHORITY TO CARRY ON THE BUSINESSES IN WHICH IT IS ENGAGED AND TO OWN AND USE
THE PROPERTIES OWNED AND USED BY IT.
3.2
AUTHORIZATION OF THE TRANSACTION.
THE BUYER
HAS ALL REQUISITE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND
THE ANCILLARY AGREEMENTS AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND
THEREUNDER.
THE EXECUTION AND DELIVERY BY THE BUYER OF THIS AGREEMENT AND THE
ANCILLARY AGREEMENTS AND THE CONSUMMATION BY THE BUYER OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION ON THE PART OF THE BUYER.
THIS AGREEMENT HAS BEEN
DULY AND VALIDLY EXECUTED AND DELIVERED BY THE BUYER AND CONSTITUTES A VALID AND
BINDING OBLIGATION OF THE BUYER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS.
3.3
NONCONTRAVENTION.
NEITHER THE EXECUTION AND
DELIVERY BY THE BUYER OF THIS AGREEMENT OR THE ANCILLARY AGREEMENTS, NOR THE
CONSUMMATION BY THE BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
WILL (A) CONFLICT WITH OR VIOLATE ANY PROVISION OF THE CERTIFICATE OF
INCORPORATION OR BY-LAWS OF THE BUYER, (B) REQUIRE ON
11
THE PART OF THE BUYER ANY FILING WITH, OR PERMIT, AUTHORIZATION, CONSENT OR
APPROVAL OF, ANY GOVERNMENTAL ENTITY, EXCEPT FOR SUCH FILINGS WITH THE SEC AS
THE BUYER MAY