THE MONTH IN WHICH THE
CLOSING DATE OCCURS.
Appropriate cash payments shall be made by the Sellers or Acquirer, as
applicable, after the facts giving rise to the obligation for such payments are
known to the Sellers and Acquirer, in the amounts necessary to give effect to
the allocations provided for in this Section 1.10, which amounts shall be
payable on a quarterly basis as a net settlement for such period beginning on
the ninetieth (90th) day after the Closing Date.
12
SECTION 1.11
TRANSFER TAXES.
ACQUIRER SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ANY SALES, USE, TRANSFER OR SIMILAR TAXES ARISING
OUT OF OR IN CONNECTION WITH THE ACQUISITION; PROVIDED, HOWEVER, THE SELLERS
SHALL REMAIN RESPONSIBLE FOR ALL OTHER TAXES INCURRED BY THEM FROM THE CONDUCT
OF THE BUSINESS PRIOR TO THE CLOSING DATE AND THE ACQUISITION (EXCEPT TO THE
EXTENT PROPERTY TAXES ARE ALLOCATED TO ACQUIRER PURSUANT TO THE SUBLEASE).
TO
THE EXTENT APPLICABLE, CANADIAN SELLER WILL AGREE TO ENTER INTO A JOINT ELECTION
WITH THE ACQUIRER PURSUANT TO S. 167 OF THE EXCISE TAX ACT (CANADA).
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Subject to the exceptions set forth in the Disclosure Schedule delivered
herewith and dated as of the date hereof, each Seller hereby, jointly and
severally, represents and warrants to Acquirer as follows:
SECTION 2.1
ORGANIZATION AND QUALIFICATION.
(A)
EACH SELLER IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION, AND EACH HAS FULL CORPORATE POWER AND
AUTHORITY TO (I) CONDUCT THE BUSINESS AS NOW CONDUCTED, (II) OWN, USE, LICENSE
AND LEASE THE PURCHASED ASSETS, AND (III) PERFORM ITS OBLIGATIONS UNDER ALL
CONTRACTS TO WHICH IT IS A PARTY.
EACH SELLER IS DULY QUALIFIED, LICENSED OR
ADMITTED TO DO BUSINESS AND IS IN GOOD STANDING AS A FOREIGN CORPORATION IN EACH
JURISDICTION IN WHICH THE OWNERSHIP, USE, LICENSING OR LEASING OF THE PURCHASED
ASSETS, OR THE CONDUCT OR NATURE OF ITS BUSINESS, MAKES SUCH QUALIFICATION,
LICENSING OR ADMISSION NECESSARY, EXCEPT FOR SUCH FAILURES TO BE SO DULY
QUALIFIED, LICENSED OR ADMITTED AND IN GOOD STANDING THAT WOULD NOT REASONABLY
BE EXPECTED TO, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE
EFFECT.
SECTION 2.1 OF THE DISCLOSURE SCHEDULE SETS FORTH EACH JURISDICTION
WHERE EACH SELLER IS SO QUALIFIED, LICENSED OR ADMITTED TO DO BUSINESS AND
SEPARATELY LISTS EACH OTHER JURISDICTION IN WHICH THE SELLERS OWN, USE, LICENSE
OR LEASE THE PURCHASED ASSETS, OR CONDUCT BUSINESS OR HAVE EMPLOYEES OR ENGAGE
INDEPENDENT CONTRACTORS.
SECTION 2.2
AUTHORITY RELATIVE TO THIS
AGREEMENT.
EACH SELLER HAS FULL CORPORATE POWER AND AUTHORITY TO EXECUTE AND
DELIVER THIS AGREEMENT AND THE OTHER AGREEMENTS WHICH ARE ATTACHED (OR FORMS OF
WHICH ARE ATTACHED) AS EXHIBITS HERETO (THE "ANCILLARY AGREEMENTS") TO WHICH
EACH SELLER IS A PARTY, TO PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER AND
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
THIS AGREEMENT
AND THE ANCILLARY AGREEMENTS TO WHICH EACH SELLER IS A PARTY HAVE BEEN OR WILL