MISSTATEMENTS.
NEITHER THIS AGREEMENT OR THE RELATED DOCUMENTS,
NOR ANY OTHER DOCUMENT, CERTIFICATE OR WRITTEN STATEMENT PREPARED OR FURNISHED
BY SELLER OR ITS REPRESENTATIVES AND FURNISHED TO BUYER OR BUYER'S
REPRESENTATIVES IN CONNECTION HEREWITH OR THEREWITH, CONTAIN ANY UNTRUE
STATEMENT OF MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED HEREIN AND THEREIN NOT MISLEADING AS OF THE
DATE HEREOF OR THEREOF.
3.31
SECTION 167 RELATED REPRESENTATIONS.
IN SELLING THE ASSETS AS SET
FORTH IN THIS AGREEMENT, SELLER IS MAKING A SUPPLY (I.E., A SALE) OF "A
BUSINESS" OR "PART OF A BUSINESS".
SELLER FURTHER REPRESENTS THAT THE BUSINESS
WAS CARRIED ON BY SELLER.
BUYER WILL BE ACQUIRING OWNERSHIP AND USE OF "ALL OR
SUBSTANTIALLY ALL" OF THE PROPERTY THAT CAN REASONABLY BE REGARDED AS BEING
"NECESSARY" FOR BUYER TO BE CAPABLE OF CARRYING ON THE BUSINESS.
SELLER WILL
MAKE A JOINT ELECTION IN PRESCRIBED FORM UNDER SECTION 167 AND ASSIST BUYER IN
FILING SUCH ELECTION.
TERMS AND PHRASES IN THIS SECTION 3.31 NOT OTHERWISE
DEFINED SHALL HAVE THE MEANING GIVEN UNDER SECTION 167 OF THE ETA.
14
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Seller as follows:
4.1
ORGANIZATION; AUTHORITY.
BUYER IS A CORPORATION DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE,
AND HAS ALL REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND
PERFORM ITS OBLIGATIONS HEREUNDER.
4.2
AUTHORITY RELATIVE TO AGREEMENT.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE RELATED AGREEMENTS BY BUYER AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREIN, HAVE BEEN DULY
AND VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION OF BUYER.
THIS
AGREEMENT AND THE RELATED AGREEMENTS HAVE BEEN DULY EXECUTED AND DELIVERED AND
CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF BUYER, EACH ENFORCEABLE
IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS LIMITED BY BANKRUPTCY,
INSOLVENCY, OR OTHER LAWS OF GENERAL APPLICATION RELATING TO THE ENFORCEMENT OF
CREDITOR'S RIGHTS.
BUYER IS NOT ENGAGED IN OR A PARTY TO, OR TO BUYER'S
KNOWLEDGE, THREATENED WITH ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING, AND IS
NOT SUBJECT TO ANY JUDGMENT, ORDER, WRIT, INJUNCTION, STIPULATION OR DECREE OF
ANY COURT OR GOVERNMENTAL AGENCY RESTRICTING THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE RELATED AGREEMENTS OR THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREIN.
4.3
NO CONFLICT WITH OTHER INSTRUMENTS OR AGREEMENTS.
THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT OR THE RELATED AGREEMENTS BY BUYER
WILL NOT RESULT IN A MATERIAL BREACH OR VIOLATION OF, OR CONSTITUTE A MATERIAL
DEFAULT UNDER, BUYER'S CERTIFICATE OF INCORPORATION, BYLAWS OR ANY AGREEMENT TO
WHICH BUYER IS A PARTY OR BY WHICH BUYER IS BOUND OR TO WHICH ANY OF BUYER'S
PROPERTY IS SUBJECT AND, TO THE BEST OF BUYER'S KNOWLEDGE, WILL NOT BE IN
VIOLATION OF ANY STATUTE, JUDGMENT, ORDER, RULE OR REGULATION IN EFFECT AT THE
DATE HEREOF OF ANY COURT OR FEDERAL, STATE OR OTHER