|
SECTION 3.01. Power and Capacity. Each Seller and Beneficiary has the requisite power and
<br /> authority to execute,deliver,and perform its obligations under this Agreement and the Related Instruments
<br /> to which it is a party. This Agreement, the Related Instruments, and all other agreements to be executed
<br /> by such Seller and such Beneficiary in connection herewith or therewith (a) have been duly authorized,
<br /> executed, and delivered by such Seller, and(b) are valid, binding, and enforceable against such Seller and
<br /> such Beneficiary.
<br /> SECTION 3.02. Oreanization and Authority. The Company is a limited liability company duly
<br /> organized, validly existing, and in good standing under the laws of the State of Colorado and is duly
<br /> qualified to do business as a foreign limited liability company in good standing in each jurisdiction in which
<br /> the nature of its business or the character or the location of its properties owned or leased by it makes such
<br /> qualification necessary. ESCO Construction is a corporation duly formed, validly existing, and in good
<br /> standing under the laws of the State of Colorado and is duly qualified to do business as a foreign corporation
<br /> in good standing in each jurisdiction in which the nature of its business or the character or the location of
<br /> its properties owned or leased by it makes such qualification necessary. Each Seller has all requisite power
<br /> and authority to own or lease and operate its properties and assets and to carry on the Business.
<br /> SECTION 3.03. Ownership of Company; No Subsidiaries. Gabe Wallace and Eric Clark
<br /> directly own all of the issued and outstanding equity interests and voting rights in the Company and 87%
<br /> of the issued and outstanding capital stock of ESCO Construction, in each case, free and clear of all
<br /> Encumbrances, and there are no other contracts or obligations providing to any Person any economic or
<br /> voting interests or other rights in the Company or ESCO Construction (or any options or instruments
<br /> granting any Person any rights to obtain or convertible into the same). The Company does not own any
<br /> equity interests, directly or indirectly, in any Person (or any options or instruments granting the Company
<br /> any rights to obtain or convertible into the same). The Company is not now, nor has it ever been, required
<br /> to file with the Securities and Exchange Commission any periodic or other reports, or any registration
<br /> statement, pursuant to the Securities Act of 1933, as amended, and the rules and regulations promulgated
<br /> thereunder,or the Securities Exchange Act of 1934,as amended,and the rules and regulations promulgated
<br /> thereunder.
<br /> SECTION 3.04. No Conflicts; Consents. Except as set forth on Schedule 3.04, the execution,
<br /> delivery, and performance of this Agreement and the Related Instruments and the consummation of the
<br /> Transactions do not, and will not, (a) violate any provision of either Seller's articles of organization,
<br /> operating agreement or equivalent organizational and governing documents, as applicable, or any other
<br /> document governing such Seller's existence, governance, or operations or(b)create any Encumbrance on
<br /> any Asset or conflict with, or result in a breach of, create an event of default under, or give any third party
<br /> the right to accelerate any obligation under,any Acquired Contract,Acquired Permit,agreement,mortgage,
<br /> order, arbitration award,judgment, or decree to which any Seller is a party, or by which any Seller or any
<br /> Asset is bound or potentially subject,whether with or without the giving of notice,the passage of time, or
<br /> both. There is no pending or,to Sellers' knowledge,threatened Proceeding before,or by,any federal,state,
<br /> local, foreign governmental authority, tribe, agency, department, commission, board, bureau,
<br /> instrumentality, court,tribunal, or political subdivision(each, a"Governmental Authority"),to restrain or
<br /> prevent the Transactions or that could materially and adversely affect Buyer's ability to own or operate the
<br /> Assets or the Business following the Closing. Sellers have obtained all consents and approvals necessary
<br /> for or that arise as a result of or in connection with the consummation of the Transactions.
<br /> SECTION 3.05. Compliance with Law. Sellers have at all times complied in all material
<br /> respects with all laws applicable to the Assets and the Business, including all federal, state, tribal, local,
<br /> municipal, foreign, international, multinational, or other law, statute, constitution, principle of common
<br /> law, resolution, ordinance, code, edict, decree, rule, order, regulation, restriction, injunction, ruling, or
<br /> requirement issued, enacted, adopted, promulgated, implemented, or otherwise put into effect by or under
<br /> 9
<br />
|