UNDERSTOOD THAT ALL RIGHT, TITLE AND INTEREST IN THE ESCROW ACCOUNT AND ALL
MONIES OR OTHER PROPERTY IN THE ESCROW ACCOUNT SHALL REMAIN THE PROPERTY OF
BUYER UNTIL RELEASED TO SELLER FROM THE ESCROW ACCOUNT.
(B)
IN THE EVENT THAT ANY PORTION OF THE ESCROW FUND REMAINS IN THE
ESCROW ACCOUNT 12 (TWELVE) MONTHS AFTER THE CLOSING DATE AND THAT THERE ARE NO
CLAIMS BY BUYER PENDING PURSUANT TO THIS AGREEMENT, THE PORTION OF THE ESCROW
FUND REMAINING IN THE ESCROW ACCOUNT, IF ANY, SHALL BE RELEASED FROM THE ESCROW
ACCOUNT TO SELLER.
(C)
IN THE EVENT THAT THE ESCROW AMOUNT IS NOT SUFFICIENT TO SATISFY
BUYER'S CLAIM OR CLAIMS UNDER THIS AGREEMENT, SELLER SHALL CONTINUE TO BE LIABLE
FOR ANY SUCH EXCESS AMOUNT (EACH SUCH CLAIM, AN "EXCESS AMOUNT"), SUBJECT TO THE
LIMITS OTHERWISE PROVIDED BY THIS AGREEMENT AND THE ESCROW FUND SHALL BE
RELEASED FROM THE ESCROW ACCOUNT TO BUYER.
3.
REPRESENTATIONS AND WARRANTIES OF
SELLER AND GISH
Seller and Gish represent and warrant to Buyer as follows:
3.1.
ORGANIZATION AND GOOD STANDING.
(A)
GISH IS A CORPORATION ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITH FULL CORPORATE POWER
AND AUTHORITY TO CONDUCT ITS BUSINESS AS IT IS NOW BEING CONDUCTED, TO OWN OR
USE THE PROPERTIES AND ASSETS THAT IT PURPORTS TO OWN OR USE, AND TO PERFORM ALL
ITS OBLIGATIONS UNDER APPLICABLE CONTRACTS.
GISH IS DULY QUALIFIED TO DO
BUSINESS AS A FOREIGN CORPORATION AND IS IN GOOD STANDING UNDER THE LAWS OF EACH
STATE OR OTHER JURISDICTION IN WHICH EITHER THE OWNERSHIP OR USE OF THE
PROPERTIES OWNED OR USED BY IT, OR THE NATURE OF THE ACTIVITIES CONDUCTED BY IT,
REQUIRES SUCH QUALIFICATION.
(B)
SELLER HAS DELIVERED OR MADE AVAILABLE TO BUYER COPIES OF THE
ORGANIZATIONAL DOCUMENTS OF GISH, AS CURRENTLY IN EFFECT.
3.2.
AUTHORITY; NO CONFLICT.
(A)
THIS AGREEMENT CONSTITUTES THE LEGAL, VALID, AND BINDING
OBLIGATION OF EACH OF SELLER AND GISH, ENFORCEABLE AGAINST EACH OF SELLER AND
GISH IN ACCORDANCE WITH ITS TERMS.
UPON THE EXECUTION AND DELIVERY BY EACH OF
SELLER AND GISH OF THIS AGREEMENT AND THE AGREEMENTS CONTEMPLATED HEREBY, THIS
AGREEMENT (AND SUCH OTHER AGREEMENTS) WILL CONSTITUTE THE LEGAL, VALID, AND
BINDING OBLIGATIONS OF EACH OF SELLER AND GISH, ENFORCEABLE AGAINST EACH OF
SELLER AND GISH IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
EACH OF SELLER AND
GISH HAS THE ABSOLUTE AND UNRESTRICTED RIGHT, POWER, AND AUTHORITY TO EXECUTE
AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
17
(B)
EXCEPT AS SET FORTH IN PART 3.2 OF THE DISCLOSURE SCHEDULE,
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY EACH OF SELLER AND GISH
NOR THE CONSUMMATION OR PERFORMANCE BY EACH OF SELLER AND GISH OF ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY WILL GIVE ANY PERSON OR GOVERNMENTAL BODY THE
RIGHT TO (A) PREVENT, DELAY, OR OTHERWISE INTERFERE WITH DIRECTLY OR INDIRECTLY,
WITH OR WITHOUT NOTICE OR LAPSE OF TIME, THE PERFORMANCE OF THE TRANSACTIONS
CONTEMPLATED HEREBY,