IN
ALL MATERIAL RESPECTS WITH THE APPLICABLE SPECIFICATIONS AND WARRANTIES OF
SELLERS, ARE NOT OBSOLETE, AND ARE USABLE AND SALABLE IN THE ORDINARY COURSE OF
BUSINESS.
THE VALUES AT WHICH SUCH INVENTORIES ARE CARRIED ARE CONSISTENT WITH
THE PAST BUSINESS PRACTICES OF SELLERS.
5.1.22.
SERVICE WARRANTIES; LIABILITY.
SCHEDULE 5.1.22 INCLUDES
COPIES OF THE STANDARD TERMS AND CONDITIONS OF THE SALE FOR THE SERVICES OF
SELLERS (CONTAINING APPLICABLE GUARANTY, WARRANTY, AND INDEMNITY PROVISIONS).
EXCEPT AS DISCLOSED IN SCHEDULE 5.1.22, NONE OF SUCH SERVICES IS SUBJECT TO ANY
GUARANTY, WARRANTY, OR OTHER INDEMNITY BEYOND THE APPLICABLE STANDARD TERMS AND
CONDITIONS OF SALE OR LEASE.
5.1.23.
FINDERS' FEES.
THERE IS NO INVESTMENT BANKER, BROKER,
FINDER OR OTHER INTERMEDIARY WHICH HAS BEEN RETAINED BY OR IS AUTHORIZED TO ACT
ON BEHALF OF ANY SELLER WHO MIGHT BE ENTITLED TO ANY FEE OR OTHER COMMISSION IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OF THE
ANCILLARY AGREEMENTS, OTHER THAN ANY FINDER'S FEE PAYABLE TO CANACCORD CAPITAL
CORPORATION.
5.1.24.
SOLVENCY.
IMMEDIATELY AFTER GIVING EFFECT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS OF THE CLOSING DATE, (I) THE
AGGREGATE "FAIR SALEABLE VALUE" OF THE ASSETS OF EACH OF THE SELLERS, TAKEN AS A
WHOLE, AS OF SUCH DATE, EXCEEDS (A) THE VALUE OF ALL "LIABILITIES" OF SUCH
SELLER, TAKEN AS A WHOLE, ON ITS EXISTING DEBTS (INCLUDING CONTINGENT
LIABILITIES) AS SUCH DEBTS BECOME ABSOLUTE AND MATURED, (II) EACH SELLER, TAKEN
AS A WHOLE, DOES NOT HAVE, AS OF SUCH DATE, AN UNREASONABLY SMALL AMOUNT OF
CAPITAL FOR THE OPERATION OF ITS BUSINESSES IN WHICH IT IS ENGAGED OR PROPOSED
TO BE ENGAGED FOLLOWING SUCH DATE, (III) EACH SELLER, TAKEN AS A WHOLE, WILL BE
ABLE TO PAY ITS LIABILITIES, INCLUDING CONTINGENT AND OTHER LIABILITIES, AS THEY
MATURE, (IV) NONE OF THE SELLERS IS INSOLVENT OR UNABLE TO PAY ITS DEBTS WITHIN
THE MEANING OF THE INSOLVENCY LEGISLATION APPLICABLE TO SUCH SELLER AND (V) NO
SELLER HAS STOPPED PAYING ITS DEBTS AS THEY ARE DUE.
27
5.1.25.
DISCLOSURE.
NONE OF (I) THE INFORMATION CONTAINED IN THE
SCHEDULES, (II) ANY OTHER WRITTEN INFORMATION FURNISHED TO PURCHASER BY ANY
SELLER UNDER THIS AGREEMENT, OR (III) THE REPRESENTATIONS AND WARRANTIES OF EACH
SELLER CONTAINED IN THIS AGREEMENT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY
IN ORDER TO MAKE THE STATEMENTS CONTAINED THEREIN, IN LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE OR ARE MADE, NOT FALSE OR MISLEADING.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as of the Closing Date as follows:
6.1
CORPORATE EXISTENCE AND POWER.
PURCHASER IS
A LIMITED LIABILITY COMPANY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF TEXAS.
PURCHASER HAS ALL CORPORATE
POWER REQUIRED TO CARRY ON ITS BUSINESS AS NOW CONDUCTED.
PURCHASER IS DULY
QUALIFIED TO CONDUCT BUSINESS AS A FOREIGN CORPORATION AND IS IN GOOD STANDING
IN EACH JURISDICTION WHERE SUCH QUALIFICATION