RIGHT (BUT NOT THE OBLIGATION) TO TAKE ANY AND ALL
ACTION TO REMEDY THE BREACH AND MITIGATE THE CONSEQUENCES OF THE BREACH.
2.8
PAYMENTS.
ANY PAYMENTS REQUIRED UNDER THIS SECTION 2 SHALL BE
MADE BY WIRE TRANSFER OR IN OTHER IMMEDIATELY AVAILABLE FUNDS.
2.9
APPOINTMENT OF MEMBER AGENT.
EACH SELLER HEREBY APPOINTS RICH
SCHMELZER AS ITS AGENT AND ATTORNEY IN FACT TO TAKE ANY AND ALL ACTIONS ON
BEHALF OF THE SELLER UNDER THIS AGREEMENT.
THE MEMBER AGENT SHALL BE ENTITLED
TO RELY ON SUCH APPOINTMENT, AND EACH SELLER HEREBY RELEASES AND AGREES TO
INDEMNIFY AND HOLD HARMLESS THE MEMBER AGENT FROM ANY LIABILITY RESULTING FROM
THE MEMBER AGENT'S RELIANCE ON SUCH APPOINTMENT IN ACCORDANCE WITH THEIR
RESPECTIVE PERCENTAGE OWNERSHIP AMOUNTS.
3.
REPRESENTATIONS AND WARRANTIES CONCERNING TRANSACTION.
3.1
SELLERS' REPRESENTATIONS AND WARRANTIES.
EACH SELLER REPRESENTS
AND WARRANTS TO BUYER AS FOLLOWS:
(A)
ORGANIZATION OF CERTAIN SELLERS.
SELLER (IF A CORPORATION OR
OTHER ENTITY) IS DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING UNDER
THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR OTHER FORMATION.
(B)
AUTHORIZATION OF TRANSACTION.
SELLER HAS FULL POWER AND AUTHORITY
(INCLUDING FULL POWER AND AUTHORITY) TO EXECUTE AND DELIVER THIS AGREEMENT AND
TO PERFORM HIS, HER, OR ITS OBLIGATIONS HEREUNDER.
THIS AGREEMENT CONSTITUTES
THE VALID AND LEGALLY BINDING OBLIGATION OF SELLER, ENFORCEABLE IN ACCORDANCE
WITH ITS TERMS AND CONDITIONS EXCEPT AS MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM, AND OTHER LAWS OF GENERAL APPLICATION
AFFECTING ENFORCEMENT OF CREDITORS RIGHTS GENERALLY AND LAWS RELATING TO THE
AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE
REMEDIES.
EXCEPT AS HAS BEEN OBTAINED PRIOR TO THE DATE HEREOF, SELLER NEED NOT
GIVE ANY NOTICE TO, MAKE ANY FILING WITH, OR OBTAIN ANY AUTHORIZATION, CONSENT,
OR APPROVAL OF ANY GOVERNMENT OR GOVERNMENTAL AGENCY IN ORDER TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
THE EXECUTION, DELIVERY, AND
PERFORMANCE OF THIS AGREEMENT AND ALL OTHER AGREEMENTS CONTEMPLATED HEREBY HAVE
BEEN DULY AUTHORIZED BY SELLER.
(C)
NON-CONTRAVENTION.
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, WILL
(A) VIOLATE ANY CONSTITUTION, STATUTE, REGULATION, RULE, INJUNCTION, JUDGMENT,
ORDER, DECREE, RULING, CHARGE, OR OTHER RESTRICTION OF ANY GOVERNMENT,
GOVERNMENTAL AGENCY, OR COURT TO WHICH SELLER IS SUBJECT OR, IF SELLER IS AN
ENTITY, ANY PROVISION OF ITS CHARTER, BYLAWS, OR OTHER GOVERNING DOCUMENTS, (B)
CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE A DEFAULT UNDER, RESULT IN THE
ACCELERATION OF, CREATE IN ANY PARTY THE RIGHT TO ACCELERATE, TERMINATE, MODIFY,
OR CANCEL (ANY SUCH EVENT, A "CONFLICT"), OR REQUIRE ANY NOTICE THAT HAS NOT
BEEN GIVEN AS OF THE DATE OF THIS AGREEMENT UNDER ANY AGREEMENT, CONTRACT,
LEASE, LICENSE, INSTRUMENT, OR OTHER ARRANGEMENT TO WHICH SELLER IS A PARTY OR
BY WHICH HE, SHE, OR IT IS
12
BOUND OR TO WHICH ANY OF HIS, HER, OR ITS ASSETS ARE SUBJECT, OR (C) RESULT IN
THE IMPOSITION OR CREATION OF A LIEN UPON OR WITH RESPECT TO THE MEMBERSHIP
INTERESTS.
(D)
BROKERS' FEES.
NEITHER