EXECUTED BY BUYER;
(C)
THE INSTRUMENT OF ASSUMPTION, DULY EXECUTED BY BUYER;
(D)
THE LEASE ASSIGNMENT, DULY EXECUTED BY BUYER;
(E)
THE TRANSITION SERVICES AGREEMENT, DULY EXECUTED BY BUYER; AND
(F)
SUCH OTHER DOCUMENTS AND INSTRUMENTS AS ARE REQUIRED TO EVIDENCE
THE ASSUMPTION OF THE ASSUMED LIABILITIES BY BUYER.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer, subject to such exceptions and
disclosures as set forth in the Disclosure Letter supplied by Seller to Buyer on
the date hereof
(the "Disclosure Letter") (which exceptions and disclosures
will reference the appropriate section of this Article V to which they relate
and each of which exceptions and disclosures shall be deemed to be incorporated
by reference into such representations and warranties; provided, that any
information disclosed in the text of any section of the Disclosure Letter shall
be deemed disclosed and incorporated in any other section, subsection, clause or
paragraph hereof, as the case may be, where it is reasonably apparent from the
text of such disclosure that it is applicable to such other section, subsection,
clause or paragraph hereof, as the case may be), as follows:
5.1
ORGANIZATION AND STANDING.
SELLER IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE
OF ITS INCORPORATION.
SELLER IS DULY QUALIFIED TO DO BUSINESS AND IN GOOD
STANDING IN THE STATES OF THE UNITED STATES IN WHICH THE CHARACTER OF THE
PROPERTIES OWNED OR LEASED BY IT AND USED BY IT IN THE BUSINESS OR IN WHICH THE
CONDUCT OF THE BUSINESS REQUIRES IT TO BE SO QUALIFIED, EXCEPT FOR THOSE
JURISDICTIONS WHERE FAILURE TO BE SO QUALIFIED WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, CONSTITUTE OR REASONABLY BE LIKELY TO CONSTITUTE A SELLER MATERIAL
ADVERSE EFFECT.
6
5.2
AUTHORITY, VALIDITY AND EFFECT.
SELLER HAS ALL REQUISITE CORPORATE
POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS TO WHICH IT IS A PARTY AND TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
THIS AGREEMENT AND EACH OF
THE ANCILLARY AGREEMENTS TO WHICH SELLER IS PARTY HAS BEEN DULY EXECUTED AND
DELIVERED BY SELLER.
THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS TO
WHICH SELLER IS PARTY IS THE LEGAL, VALID AND BINDING OBLIGATION OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS RESPECTIVE TERMS, EXCEPT AS
LIMITED BY (I) APPLICABLE BANKRUPTCY, REORGANIZATION, INSOLVENCY, MORATORIUM OR
OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY FROM
TIME TO TIME IN EFFECT, (II) THE AVAILABILITY OF EQUITABLE REMEDIES (REGARDLESS
OF WHETHER ENFORCEABILITY IS CONSIDERED IN A PROCEEDING AT LAW OR IN EQUITY) OR
(III) RULES CONCERNING SPECIFIC PERFORMANCE (THE "GENERAL ENFORCEABILITY
EXCEPTIONS").
5.3
NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(A)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY
ANCILLARY AGREEMENT BY SELLER, NOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, NOR COMPLIANCE BY SELLER WITH ANY
OF THE PROVISIONS HEREOF OR THEREOF, WILL (I) CONFLICT WITH OR