then and as though the Closing Date were substituted for
the date of this Agreement throughout this Article V except to the extent any
representation or warranty expressly speaks only as of a different date), except
as set forth in the Disclosure Schedules attached hereto.
5.1
Existence and Good Standing; Authorization.
(A)
EACH OF PARENT AND BUYER IS ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS INCORPORATION, ORGANIZATION OR FORMATION.
(B)
EACH OF PARENT AND BUYER HAS ALL REQUISITE CORPORATE OR ORGANIZATIONAL
POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT, TO PERFORM ITS
OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE SALE AND THE OTHER TRANSACTIONS
CONTEMPLATED HEREBY.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
BY EACH OF PARENT AND BUYER, AND THE CONSUMMATION BY IT OF THE TRANSACTIONS
CONTEMPLATED HEREBY, HAVE BEEN DULY AUTHORIZED AND APPROVED BY ITS RESPECTIVE
BOARD OF DIRECTORS OR MEMBERS, AND NO OTHER CORPORATE, STOCKHOLDER,
ORGANIZATIONAL, MEMBER OR MANAGER ACTION ON THE PART OF PARENT OR BUYER IS
NECESSARY TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
BY PARENT OR BUYER AND THE CONSUMMATION THEREBY OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
PARENT AND BUYER AND, ASSUMING THE DUE EXECUTION OF THIS AGREEMENT BY THE
SELLERS, THIS AGREEMENT CONSTITUTES A VALID AND BINDING OBLIGATION OF EACH OF
PARENT AND BUYER ENFORCEABLE AGAINST PARENT AND BUYER IN ACCORDANCE WITH ITS
TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM,
RECEIVERSHIP AND SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY, AND GENERAL EQUITABLE PRINCIPLES.
5.2
Consents and Approvals; No Violations.
The execution and delivery of this
Agreement by Parent and Buyer and the consummation of the transactions
contemplated hereby do not and will not:
(A)
VIOLATE OR CONFLICT WITH ANY PROVISIONS OF THE ORGANIZATIONAL DOCUMENTS OF
PARENT OR BUYER;
(B)
VIOLATE ANY LEGAL REQUIREMENT OR ORDER TO WHICH PARENT OR BUYER IS SUBJECT
OR BY WHICH ANY OF THEIR RESPECTIVE MATERIAL PROPERTIES OR ASSETS ARE BOUND;
(C)
REQUIRE ANY PERMIT, CONSENT OR APPROVAL OF, OR THE GIVING OF ANY NOTICE TO,
OR FILING WITH ANY GOVERNMENT AUTHORITY ON OR PRIOR TO THE CLOSING DATE; AND
(D)
RESULT IN A MATERIAL VIOLATION OR BREACH OF, CONFLICT WITH, CONSTITUTE
(WITH OR WITHOUT DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT (OR GIVE RISE TO
ANY RIGHT OF TERMINATION, CANCELLATION, PAYMENT OR ACCELERATION) UNDER, OR
RESULT IN THE CREATION OF ANY ENCUMBRANCE UPON ANY OF THE MATERIAL PROPERTIES OR
ASSETS OF PARENT OR BUYER UNDER ANY OF THE MATERIAL TERMS,
35
CONDITIONS OR PROVISIONS OF ANY MATERIAL CONTRACT OR ANY OTHER INSTRUMENT OR
OBLIGATION TO WHICH PARENT OR BUYER IS A PARTY, OR BY WHICH IT OR ANY OF THEIR
RESPECTIVE MATERIAL PROPERTIES OR ASSETS MAY BE BOUND; EXCLUDING FROM THE
FOREGOING CLAUSES (B), (C) AND (D) PERMITS, CONSENTS, APPROVALS, NOTICES AND
FILINGS THE ABSENCE OF WHICH, AND VIOLATIONS, BREACHES, DEFAULTS AND
ENCUMBRANCES THE EXISTENCE OF WHICH, WOULD NOT, INDIVIDUALLY OR IN