SELLER OF SUCH TELOS SELLER'S
PORTION OF THE PURCHASE PRICE DUE AND PAYABLE TO SUCH TELOS
38
SELLER UPON THE CLOSING BY BUYER AND THE ASSUMPTION OF THE ASSUMED LIABILITIES
BY BUYER).
"SOLVENT" MEANS (A) THE FAIR VALUE OF THE PROPERTY OF SUCH TELOS
SELLER IS GREATER THAN THE TOTAL AMOUNT OF LIABILITIES, INCLUDING CONTINGENT
LIABILITIES, OF SUCH TELOS SELLER THAT ARE KNOWN TO THE BOARD OF DIRECTORS OF
SELLER AS OF THE DATE HEREOF (SUCH CONTINGENT LIABILITIES BEING COMPUTED AS THE
AMOUNT THAT, IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES EXISTING AT THE TIME,
REPRESENTS THE AMOUNT THAT CAN BE REASONABLY BE EXPECTED TO BECOME AN ACTUAL OR
MATURED LIABILITY); (B) THE PRESENT FAIR SALEABLE VALUE OF THE ASSETS OF SUCH
TELOS SELLER IS NOT LESS THAN THE AMOUNT THAT WILL BE REQUIRED TO PAY THE
PROBABLE LIABILITY OF SUCH TELOS SELLER ON SUCH TELOS SELLER'S DEBTS THAT ARE
KNOWN TO THE BOARD OF DIRECTORS OF SELLER AS OF THE DATE HEREOF AS THEY BECOME
ABSOLUTE AND MATURED; AND (C) SUCH TELOS SELLER DOES NOT INTEND TO, AND DOES NOT
BELIEVE THAT IT WILL, INCUR DEBTS OR LIABILITIES BEYOND SUCH TELOS SELLER'S
ABILITY TO PAY AS SUCH DEBTS AND LIABILITIES MATURE.
4.26
REPRESENTATIONS COMPLETE.
NONE OF THE
REPRESENTATIONS OR WARRANTIES MADE BY SELLER (AS MODIFIED BY THE SELLER
DISCLOSURE LETTER), NOR ANY STATEMENT MADE IN ANY SCHEDULE OR CERTIFICATE
FURNISHED BY SELLER PURSUANT TO THIS AGREEMENT, TAKEN AS A WHOLE, CONTAINS OR
WILL CONTAIN AT THE CLOSING DATE, ANY UNTRUE STATEMENT OF A MATERIAL FACT, OR
OMITS OR WILL OMIT AT THE CLOSING DATE TO STATE ANY MATERIAL FACT NECESSARY IN
ORDER TO MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH MADE, NOT MISLEADING.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Subject to the exceptions set forth in the disclosure letter of the Buyer
addressed to Seller, dated as of the Agreement Date and delivered to Seller
concurrently with the parties' execution of this Agreement (the "Buyer
Disclosure Letter" (if any)), Buyer represents and warrants to Seller as
follows:
5.1
ORGANIZATION AND GOOD STANDING.
BUYER IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE AND HAS THE CORPORATE POWER AND AUTHORITY TO OWN,
OPERATE AND LEASE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW CONDUCTED
AND AS PRESENTLY PROPOSED TO BE CONDUCTED.
BUYER IS DULY QUALIFIED OR LICENSED
TO DO BUSINESS, AND IS IN GOOD STANDING, IN EACH JURISDICTION WHERE THE
CHARACTER OF THE PROPERTIES OWNED, LEASED OR OPERATED BY IT OR THE NATURE OF ITS
ACTIVITIES MAKES SUCH QUALIFICATION OR LICENSING NECESSARY, EXCEPT WHERE THE
FAILURE TO BE SO QUALIFIED OR LICENSED WOULD NOT INDIVIDUALLY OR IN THE
AGGREGATE HAVE A MATERIAL ADVERSE EFFECT ON THE BUYER.
5.2
POWER, AUTHORIZATION AND VALIDITY.
(A)
POWER AND AUTHORITY.
BUYER HAS ALL
REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER INTO, EXECUTE, DELIVER AND
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND