AND ANY SALES OR OTHER TAXES IMPOSED BY REASON OF
THE TRANSFERS OF ASSETS PROVIDED HEREUNDER AND ANY DEFICIENCY, INTEREST OR
PENALTY ASSERTED WITH RESPECT THERETO.
SELLER SHALL PAY THE FEES AND COSTS OF
RECORDING OR FILING ALL APPLICABLE CONVEYANCE INSTRUMENTS, AND SHALL PAY THE
FEES AND COSTS OF RECORDING OR FILING ALL UCC TERMINATION STATEMENTS AND OTHER
RELEASES OF LIENS NECESSARY TO DELIVER THE ASSETS AS CONTEMPLATED HEREIN.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF SELLER.
SELLER REPRESENTS AND
WARRANTS TO BUYER AS FOLLOWS:
3.1
AUTHORIZATION.
SELLER IS DULY INCORPORATED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF CALIFORNIA.
SELLER HAS THE POWER
AND AUTHORITY TO OWN, OPERATE, LEASE, POSSESS OR DISPOSE OF THE PROPERTIES,
INCLUDING THE ASSETS, THAT IT PURPORTS TO OWN, OPERATE, POSSESS OR LEASE AND TO
OWN AND OPERATE ITS BUSINESS AS CURRENTLY CONDUCTED.
SELLER HAS THE POWER,
AUTHORITY AND LEGAL RIGHT TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER
THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY.
EACH TRANSACTION DOCUMENT
EXECUTED AND DELIVERED BY SELLER HAS BEEN DULY EXECUTED AND DELIVERED THEREBY,
AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF SELLER, ENFORCEABLE
AGAINST SELLER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS (EXCEPT AS LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR
LAWS NOW OR HEREAFTER IN EFFECT RELATING TO OR AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO THE LIMITATIONS IMPOSED BY GENERAL EQUITABLE PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING AT LAW,
IN EQUITY OR IN ARBITRATION)).
3.2
CONSENTS; NO CONFLICTS.
NO CONSENT, APPROVAL, WAIVER OF, NOTICE TO,
OR FILING WITH, ANY OTHER PERSON IS REQUIRED ON BEHALF OF SELLER IN CONNECTION
WITH THE EXECUTION, DELIVERY OR PERFORMANCE BY IT OF THE TRANSACTION DOCUMENTS
EXECUTED AND DELIVERED BY SELLER, OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY.
THE EXECUTION AND DELIVERY BY SELLER OF THE TRANSACTION
DOCUMENTS EXECUTED AND DELIVERED BY SELLER DO NOT, AND THE PERFORMANCE BY SELLER
OF ITS OBLIGATIONS THEREUNDER AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY DO NOT (A) VIOLATE OR CONFLICT WITH ANY PROVISION OF
SELLER'S CERTIFICATE OF INCORPORATION OR BYLAWS, (B) VIOLATE OR BREACH, OR (WITH
OR WITHOUT THE GIVING OF NOTICE OR LAPSE OF TIME OR BOTH) CONSTITUTE A DEFAULT
(OR GIVE RISE TO ANY RIGHT OF TERMINATION OR CANCELLATION) UNDER, OR GIVE RISE
TO OR ACCELERATE ANY MATERIAL OBLIGATION UNDER, ANY CONTRACT TO WHICH SELLER IS
A PARTY OR BY WHICH SELLER OR ANY OF ITS ASSETS ARE BOUND; OR (C) VIOLATE ANY
LAW.
4
3.3
TITLE TO ASSETS.
THE SELLER OWNS AND HAS GOOD, VALID AND MARKETABLE
TITLE TO ALL OF THE ASSETS, INCLUDING WITHOUT LIMITATION ALL OF THE INTELLECTUAL
PROPERTY RIGHTS INCLUDED IN THE ASSETS.
ALL OF THE ASSETS ARE OWNED BY THE
SELLER FREE AND CLEAR OF ANY LIENS.
FOLLOWING THE CLOSING, BUYER WILL HAVE GOOD
AND VALID TITLE TO THE ASSETS, FREE AND CLEAR OF ALL TITLE DEFECTS, OBJECTIONS
OR LIENS AND LIABILITIES.
NONE OF THE ASSETS ARE BEING LEASED