INCLUDED IN, OR WILL TIMELY FILE OR BE INCLUDED IN, ALL MATERIAL TAX
RETURNS REQUIRED TO BE FILED BY IT OR IN WHICH IT IS TO BE INCLUDED WITH RESPECT
TO TAXES FOR ANY PERIOD ENDING ON OR BEFORE THE CLOSING DATE, (B) ALL MATERIAL
TAXES THAT ARE DUE WITH RESPECT TO PARENT AND SELLERS HAVE BEEN PAID EXCEPT TO
THE EXTENT SUCH TAXES ARE BEING CONTESTED IN GOOD FAITH, (C) NO DEFICIENCY FOR
ANY MATERIAL AMOUNT OF TAX HAS BEEN ASSERTED OR ASSESSED BY A TAX AUTHORITY
AGAINST PARENT OR EITHER SELLER OR FOR WHICH PARENT OR EITHER SELLER MAY BE
LIABLE, (D) THERE ARE NO JUDICIAL PROCEEDINGS WITH RESPECT TO MATERIAL TAXES DUE
FROM PARENT OR EITHER SELLER; AND (E) THERE IS NO CONTRACT, AGREEMENT, PLAN OR
ARRANGEMENT COVERING ANY PERSON THAT, INDIVIDUALLY OR COLLECTIVELY, COULD GIVE
RISE TO THE PAYMENT OF ANY AMOUNT THAT WOULD NOT BE DEDUCTIBLE BY REASON OF
SECTION 280G OF THE CODE.
SECTION 3.20
BROKERS.
EXCEPT FOR BEAR STEARNS & CO.
INC., WHOSE FEES WILL BE PAID BY PARENT OR THE SELLERS, THERE IS NO BROKER,
FINDER, INVESTMENT BANKER OR OTHER INTERMEDIARY THAT HAS BEEN RETAINED BY OR IS
AUTHORIZED TO ACT ON BEHALF OF PARENT OR EITHER SELLER WHO OR THAT MIGHT BE
ENTITLED TO ANY FEE OR COMMISSION FROM BUYER OR ANY OF ITS AFFILIATES IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ANCILLARY
AGREEMENTS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Parent and Sellers as follows:
SECTION 4.01
CORPORATE EXISTENCE AND POWER.
BUYER IS
A CORPORATION DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF NEW YORK AND HAS ALL CORPORATE POWERS AND ALL GOVERNMENTAL
LICENSES, AUTHORIZATIONS, PERMITS, CONSENTS AND APPROVALS REQUIRED TO CARRY ON
ITS BUSINESS AS NOW CONDUCTED.
SECTION 4.02
CORPORATE AUTHORIZATION
(A)
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS BY BUYER, THE PERFORMANCE BY BUYER OF ITS
OBLIGATIONS HEREUNDER AND THEREUNDER AND THE CONSUMMATION BY BUYER OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY ARE WITHIN BUYER'S CORPORATE POWERS
AND HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE CORPORATE ACTION ON THE PART OF
BUYER.
(B)
THIS AGREEMENT HAS BEEN, AND AT THE CLOSING
EACH ANCILLARY AGREEMENT WILL BE, DULY EXECUTED AND DELIVERED BY BUYER.
THIS
AGREEMENT (ASSUMING DUE AUTHORIZATION, EXECUTION AND DELIVERY BY PARENT AND EACH
SELLER) CONSTITUTES, AND EACH ANCILLARY AGREEMENT TO WHICH BUYER WILL BE A PARTY
WILL CONSTITUTE WHEN EXECUTED AND DELIVERED BY BUYER, THE LEGAL, VALID AND
BINDING OBLIGATION OF BUYER, ENFORCEABLE AGAINST BUYER IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, FRAUDULENT CONVEYANCE, MORATORIUM OR OTHER SIMILAR
LAWS AFFECTING OR RELATING TO ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN
A PROCEEDING AT LAW OR IN EQUITY).
29
SECTION 4.03
GOVERNMENTAL AUTHORIZATION.
THE
EXECUTION, DELIVERY AND PERFORMANCE BY BUYER OF THIS AGREEMENT AND EACH
ANCILLARY AGREEMENT