AND HAS
CONDUCTED SUCH INVESTIGATION OF THE COMPANY AS IT HAS DEEMED APPROPRIATE AND HAS
HAD THE QUESTIONS IT HAS ASKED OF THE COMPANY ANSWERED TO ITS SATISFACTION;
(H)
SOPHISTICATION. THE SELLER (I) IS A SOPHISTICATED PERSON WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ASSET
PURCHASE AGREEMENT; (II) HAS MADE AN
2
INFORMED DECISION REGARDING ITS ENTRY INTO THIS AGREEMENT AND (III) HAS
INDEPENDENTLY AND WITHOUT RELIANCE UPON THE COMPANY OR ANY OTHER PARTY RELATED
TO THE COMPANY, AND BASED ON SUCH INFORMATION AS THE SELLER HAS DEEMED
APPROPRIATE, MADE ITS OWN ANALYSIS AND DECISION TO ENTER INTO THIS AGREEMENT;
(I)
CONSULTATION WITH COUNSEL. THE SELLER (I) FULLY UNDERSTANDS ITS
RIGHTS TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH ITS ATTORNEYS, (II) HAS
AVAILED ITSELF OF THIS RIGHT TO THE EXTENT IT DESIRED, (III) HAS CAREFULLY READ
AND FULLY UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT, (IV) HAS NOT
TRANSFERRED OR ASSIGNED ANY RIGHTS OR CLAIMS THAT IT IS HEREBY PURPORTING TO
RELEASE HEREIN, (V) IS VOLUNTARILY, AND WITH PROPER AND FULL AUTHORITY, ENTERING
INTO THIS AGREEMENT, AND (VI) HAS CONSIDERED ALL OF ITS RIGHTS AND CLAIMS
CAREFULLY BEFORE EXECUTING THIS AGREEMENT;
(J)
BROKERS. THE SELLER HAS NOT INCURRED, NOR WILL IT INCUR, DIRECTLY
OR INDIRECTLY, ANY LIABILITY FOR BROKERAGE OR FINDERS' FEES OR AGENTS'
COMMISSIONS OR INVESTMENT BANKERS' FEES OR ANY SIMILAR CHARGES IN CONNECTION
WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
4.
COMPANY REPRESENTATIONS AND WARRANTIES. THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO THE SELLER AS FOLLOWS:
(A)
ORGANIZATION AND GOOD STANDING. THE COMPANY IS A CORPORATION, DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE;
(B)
POWER AND AUTHORITY. THE COMPANY HAS FULL POWER, AUTHORITY AND
RIGHT TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT AND HAS TAKEN ALL NECESSARY
ACTION TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS
AGREEMENT;
(C)
DUE EXECUTION. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED
BY THE COMPANY, AND IS A LEGAL, VALID AND BINDING INSTRUMENT ENFORCEABLE AGAINST
THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE
LIMITED BY BANKRUPTCY, INSOLVENCY AND OTHER SIMILAR LAWS RELATING TO THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY;
AND
(D)
NO CONFLICT. NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT
NOR THE CONSUMMATION OF THE TRANSACTIONS HEREIN CONTEMPLATED, NOR COMPLIANCE
WITH THE PROVISIONS HEREOF, WILL CONFLICT WITH OR RESULT IN A BREACH OF, OR
CONSTITUTE A DEFAULT (WITH NOTICE OR PASSAGE OF TIME OR BOTH) UNDER ANY
PROVISION OF ANY LAW, GOVERNMENTAL RULE, REGULATION, JUDGMENT, DECREE OR ORDER
BINDING ON THE COMPANY OR THE CHARTER OR BYLAWS OF THE COMPANY OR ANY PROVISION
OF ANY MORTGAGE, INDENTURE, CONTRACT, AGREEMENT OR OTHER INSTRUMENT TO WHICH THE
COMPANY IS A PARTY OR BY WHICH IT IS BOUND.
(e)
Absence of Known Indemnity Claims. Other than with respect to
potential claims under the side letter "Outstanding Claims between the parties"
dated May 25,