ESTABLISHED OR MAINTAINED ANY UNLAWFUL OR
UNRECORDED FUND OF CORPORATE MONIES OR OTHER ASSETS; (D) MADE ANY FALSE OR
FICTITIOUS ENTRIES ON THE BOOKS OR RECORDS OF ANY OF SUCH CORPORATIONS; (E) MADE
ANY BRIBE, PAYOFF, KICKBACK OR OTHER UNLAWFUL PAYMENT; OR (F) MADE ANY MATERIAL
FAVOR OR GIFT WHICH IS NOT, IN GOOD FAITH, BELIEVED BY SELLER TO BE FULLY
DEDUCTIBLE BY SELLER OR SELLER'S CONSOLIDATED GROUP FOR ANY INCOME TAX PURPOSES
AND WHICH WAS, IN FACT, SO DEDUCTED.
3.25
PRODUCTS LIABILITY.
EXCEPT AS SET FORTH ON SCHEDULE 3.13, THERE
ARE NO MATERIAL CLAIMS PRESENTLY PENDING OR, TO THE KNOWLEDGE OF SELLER,
THREATENED AGAINST SELLER THAT ARE (A) FOR PRODUCTS LIABILITY ON ACCOUNT OF ANY
EXPRESS OR IMPLIED WARRANTY, LAW, REGULATION OR OTHER THEORY OR (B) FOR PERSONAL
INJURY.
3.26
NO POWERS OF ATTORNEY.
SELLER HAS NOT GRANTED ANY GENERAL OR
SPECIAL POWERS OF ATTORNEY OR ANY OTHER AUTHORIZATIONS OF THIRD PARTIES TO ACT
AS AGENTS FOR SELLER EXCEPT FOR POWERS OF ATTORNEY GRANTED IN CONNECTION WITH
SELLER'S TAXES AND TAX RETURNS.
3.27
FULL DISCLOSURE.
NO REPRESENTATION OR WARRANTY BY SELLER IN THIS
AGREEMENT OR STATEMENT IN ANY SCHEDULE CONTAINS ANY UNTRUE STATEMENTS OF A
MATERIAL FACT OR OMITS TO STATE ANY MATERIAL FACT NECESSARY, IN ORDER TO MAKE
THE STATEMENTS MADE HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY WERE MADE, NOT MISLEADING.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF KERR AND PURCHASER
As an inducement to Seller to enter into this Agreement and to consummate the
Acquisition, each of Kerr and Purchaser jointly and severally represents and
warrants to Seller as follows:
29
4.1
ORGANIZATION AND QUALIFICATION.
KERR IS A CORPORATION AND
PURCHASER IS A LIMITED LIABILITY COMPANY, EACH DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE.
EACH OF KERR AND
PURCHASER IS DULY QUALIFIED OR LICENSED TO DO BUSINESS, AND IS IN GOOD STANDING,
IN EACH JURISDICTION WHERE THE CHARACTER OF THE PROPERTIES OWNED, LEASED OR
OPERATED BY IT OR THE NATURE OF ITS BUSINESS MAKES SUCH QUALIFICATION OR
LICENSING NECESSARY, EXCEPT FOR FAILURES TO BE SO QUALIFIED OR LICENSED AND IN
GOOD STANDING THAT DO NOT HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF KERR
AND PURCHASER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
4.2
AUTHORITY RELATIVE TO THIS AGREEMENT.
EACH OF KERR AND PURCHASER
HAS ALL NECESSARY CORPORATE OR LIMITED LIABILITY COMPANY POWER AND AUTHORITY TO
EXECUTE AND DELIVER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH
IT IS A PARTY, TO PERFORM ITS OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE
ACQUISITION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY BY EACH OF KERR AND PURCHASER AND
THE CONSUMMATION BY PURCHASER OF THE ACQUISITION HAVE BEEN DULY AND VALIDLY
AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF EACH OF KERR AND
PURCHASER, AND NO OTHER CORPORATE PROCEEDINGS ON THE PART OF KERR OR PURCHASER
ARE NECESSARY TO AUTHORIZE THIS AGREEMENT OR