EXCISE, STAMP, STAMP DUTY, STAMP DUTY RESERVE
TAX (SDRT), OR OTHER TAXES IMPOSED BY REASON OF THE TRANSFER OF THE PURCHASED
ASSETS PROVIDED HEREUNDER ("TRANSFER TAXES") AND ANY DEFICIENCY, INTEREST OR
PENALTY ASSERTED WITH RESPECT THERETO.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer and Guarantor as follows as of May 7,
2008 (or, in the case of a representation or warranty made as of a specific
other date, as of such other date), subject to such exceptions as are disclosed
in a disclosure schedule delivered by Seller to Buyer contemporaneously with the
execution of this Agreement (the "Disclosure Schedule").
The Disclosure
Schedule exceptions shall be arranged according to specific sections in this
Article II and shall provide exceptions to, or otherwise qualify, the
corresponding section in this Article II and any other section in this
Article II where it is reasonably apparent that the disclosure is relevant to
such other section.
2.1
ORGANIZATION.
SELLER IS A CORPORATION, DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE
OF DELAWARE AND HAS THE POWER AND AUTHORITY TO CONDUCT THE BUSINESS AS IT IS
PRESENTLY BEING CONDUCTED AND TO SELL AND CONVEY THE PURCHASED ASSETS TO BUYER.
2.2
AUTHORIZATION.
THE EXECUTION AND DELIVERY
OF THIS AGREEMENT AND EACH AGREEMENT, INSTRUMENT, CERTIFICATE AND DOCUMENT BEING
OR TO BE EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT (EACH A "TRANSACTION
AGREEMENT") BY SELLER AND THE PERFORMANCE OF ALL OBLIGATIONS HEREUNDER AND
THEREUNDER BY SELLER HAVE BEEN DULY AUTHORIZED AND NO OTHER ACTION OR APPROVAL
IS NECESSARY FOR THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT AND
EACH TRANSACTION AGREEMENT BY SELLER.
SELLER HAS THE REQUISITE CORPORATE POWER
AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND EACH TRANSACTION
AGREEMENT.
THIS AGREEMENT AND EACH TRANSACTION AGREEMENT TO WHICH SELLER IS A
PARTY HAS BEEN OR WILL BE DULY EXECUTED AND DELIVERED BY SELLER AND IS OR WILL
BE A VALID AND BINDING OBLIGATION OF SELLER, ENFORCEABLE AGAINST SELLER IN
ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY
(A) BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS NOW
OR HEREAFTER IN EFFECT, RELATING TO OR LIMITING CREDITORS' RIGHTS GENERALLY AND
(B) GENERAL PRINCIPLES OF EQUITY (WHETHER CONSIDERED IN AN ACTION IN EQUITY OR
AT LAW).
2.3
NO CONFLICT.
EXCEPT FOR THE FILINGS AS MAY
BE REQUIRED UNDER, AND OTHER APPLICABLE REQUIREMENTS OF, THE EXCHANGE ACT,
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY TRANSACTION
AGREEMENT BY SELLER, NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREUNDER, WILL:
(A)
RESULT IN THE CREATION OR IMPOSITION OF ANY
ENCUMBRANCE UPON THE PURCHASED ASSETS, OTHER THAN PERMITTED ENCUMBRANCES;
6
(B)
EXCEPT AS SET FORTH ON SCHEDULE 2.3(B),
(I) REQUIRE THE CONSENT, APPROVAL OR AUTHORIZATION OF, OR DECLARATION, FILING OR
REGISTRATION WITH ANY GOVERNMENTAL ENTITY OR OTHER PERSON TO BE MADE OR OBTAINED
BY SELLER OR A PURCHASED SUBSIDIARY, OR (II) CONSTITUTE (WITH THE GIVING OF
NOTICE OR LAPSE OF TIME, OR BOTH) A DEFAULT