(III) SOLD, TRANSFERRED, LICENSED OR LEASED ANY OF THE PURCHASED ASSETS EXCEPT
IN THE ORDINARY COURSE OF BUSINESS; (IV) SUFFERED ANY PHYSICAL DAMAGE,
DESTRUCTION OR LOSS (WHETHER OR NOT COVERED BY INSURANCE) TO THE PURCHASED
ASSETS CAUSING A MATERIAL ADVERSE EFFECT; (V) MADE OR SUFFERED ANY MATERIAL
AMENDMENT OF ANY MATERIAL CONTRACT; OR (VI) ENTERED INTO ANY AGREEMENT OR
OTHERWISE OBLIGATED ITSELF TO DO ANY OF THE FOREGOING.
2.21
DISCLOSURE.
TO SELLER'S KNOWLEDGE, NO
REPRESENTATION OR WARRANTY OF SELLER IN THIS AGREEMENT (AS QUALIFIED BY THE
DISCLOSURE SCHEDULE) CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS
OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH THEY WERE MADE, NOT MATERIALLY MISLEADING.
2.22
CLOSING WORKING CAPITAL.
AS OF THE CLOSE OF
BUSINESS ON THE BUSINESS DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE, THE
WORKING CAPITAL OF THE BUSINESS IS EQUAL TO OR GREATER THAN $1,000,000.
2.23
NO OTHER REPRESENTATIONS OR WARRANTIES.
EXCEPT
AS SPECIFICALLY SET FORTH IN THIS ARTICLE II, NEITHER SELLER NOR ANY OF ITS
OFFICERS,
15
DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR REPRESENTATIVES IS MAKING, AND EACH
OF THEM HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER AND GUARANTOR
Buyer and Guarantor hereby represent and warrant to Seller as follows:
3.1
ORGANIZATION AND QUALIFICATION.
EACH OF BUYER AND GUARANTOR IS AN
ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF
ITS JURISDICTION OF ORGANIZATION AND HAS THE POWER AND AUTHORITY TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT.
3.2
AUTHORIZATION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
EACH TRANSACTION AGREEMENT BY EACH OF BUYER AND GUARANTOR AND THE PERFORMANCE OF
EACH BUYER AND GUARANTOR OF ITS OBLIGATIONS HEREUNDER HAVE BEEN DULY AUTHORIZED
BY BUYER AND GUARANTOR AND NO OTHER ACTION OR APPROVAL BY BUYER OR GUARANTOR IS
NECESSARY FOR THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT AND EACH
TRANSACTION AGREEMENT BY EACH OF BUYER AND GUARANTOR, AS APPLICABLE.
EACH OF
BUYER AND GUARANTOR HAS FULL RIGHT, POWER, AUTHORITY AND CAPACITY TO EXECUTE AND
DELIVER THIS AGREEMENT AND EACH TRANSACTION AGREEMENT, AS APPLICABLE.
THIS
AGREEMENT AND EACH TRANSACTION AGREEMENT TO WHICH BUYER OR GUARANTOR IS A PARTY
HAS BEEN OR WILL BE DULY EXECUTED AND DELIVERED BY BUYER AND GUARANTOR, AS
APPLICABLE, AND IS OR WILL BE A VALID AND BINDING OBLIGATION OF EACH OF BUYER
AND GUARANTOR, AS APPLICABLE, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY (A) BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS NOW OR HEREAFTER IN
EFFECT RELATING TO OR LIMITING CREDITORS' RIGHTS GENERALLY, AND (B) GENERAL
PRINCIPLES OF EQUITY (WHETHER CONSIDERED IN AN ACTION IN EQUITY OR AT LAW).
3.3
NO CONFLICT.
EXCEPT AS DESCRIBED ON SCHEDULE 3.3, NEITHER THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY EACH OF BUYER AND GUARANTOR NOR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREUNDER WILL:
(A)
CONFLICT