OTHER PROVISION OF THIS AGREEMENT, UNLESS AN
EVENT OF DEFAULT (OTHER THAN AN EVENT OF DEFAULT PURSUANT TO ARTICLE 13(A)(XV))
HAS OCCURRED AND IS CONTINUING, SELLER SHALL NOT BE REQUIRED TO (I) PAY ANY EXIT
FEE IN CONNECTION WITH THE REPURCHASE OF ANY ELIGIBLE ASSETS DURING, OR (II) PAY
ANY NON-USAGE FEE FOR, IN EACH CASE, ANY PERIOD FOLLOWING DELIVERY OF WRITTEN
NOTICE BY SELLER TO BUYER OR BY BUYER TO SELLER OF AN EARLY TERMINATION EVENT.
ARTICLE 10.
REPRESENTATIONS AND WARRANTIES
(A)
SELLER REPRESENTS AND WARRANTS THAT (I) IT IS DULY AUTHORIZED TO
EXECUTE AND DELIVER THIS AGREEMENT, TO ENTER INTO TRANSACTIONS CONTEMPLATED
HEREUNDER AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND HAS TAKEN ALL NECESSARY
ACTION TO AUTHORIZE SUCH EXECUTION, DELIVERY AND PERFORMANCE, (II) IT WILL
ENGAGE IN SUCH TRANSACTIONS AS PRINCIPAL (OR, IF AGREED IN WRITING, IN THE FORM
OF AN ANNEX HERETO OR OTHERWISE, IN ADVANCE OF ANY TRANSACTION BY THE OTHER
PARTY HERETO, AS AGENT FOR A DISCLOSED PRINCIPAL), (III) THE PERSON SIGNING THIS
AGREEMENT ON ITS BEHALF IS DULY AUTHORIZED TO DO SO ON ITS BEHALF (OR ON BEHALF
OF ANY SUCH DISCLOSED PRINCIPAL), (IV) IT HAS OBTAINED ALL AUTHORIZATIONS OF ANY
GOVERNMENTAL BODY REQUIRED IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS HEREUNDER TO THE EXTENT THAT THE FAILURE TO OBTAIN SUCH
AUTHORIZATIONS WOULD CAUSE A MATERIAL ADVERSE EFFECT ON SELLER'S ABILITY TO
PERFORM ITS OBLIGATIONS HEREUNDER AND SUCH AUTHORIZATIONS ARE IN FULL FORCE AND
EFFECT AND (V) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
TRANSACTIONS HEREUNDER WILL NOT VIOLATE ANY LAW, ORDINANCE OR RULE APPLICABLE TO
IT OR ITS ORGANIZATIONAL DOCUMENTS OR ANY AGREEMENT BY WHICH IT IS BOUND OR BY
WHICH ANY OF ITS ASSETS ARE AFFECTED TO THE EXTENT THAT SUCH VIOLATION WOULD
HAVE A MATERIAL ADVERSE EFFECT ON ITS ABILITY TO PERFORM ITS OBLIGATIONS
HEREUNDER.
ON THE PURCHASE DATE FOR ANY TRANSACTION, SELLER SHALL BE DEEMED TO
REPEAT ALL THE FOREGOING REPRESENTATIONS MADE BY IT.
(B)
IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES IN SUBSECTION
(A) ABOVE, SELLER REPRESENTS AND WARRANTS TO BUYER AS OF THE DATE OF THIS
AGREEMENT AND WILL BE DEEMED TO REPRESENT AND WARRANT TO BUYER AS OF THE
PURCHASE DATE FOR THE PURCHASE OF ANY PURCHASED ASSETS BY BUYER FROM SELLER AND
ANY TRANSACTION THEREUNDER AND COVENANTS THAT AT ALL TIMES WHILE THIS AGREEMENT
AND ANY TRANSACTION THEREUNDER IS IN EFFECT, UNLESS OTHERWISE STATED HEREIN:
47
(I)
ORGANIZATION.
SELLER IS DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS AND REGULATIONS OF THE STATE OF SELLER'S
INCORPORATION AND IS DULY LICENSED, QUALIFIED, AND IN GOOD STANDING IN EVERY
STATE WHERE SUCH LICENSING OR QUALIFICATION IS NECESSARY FOR THE TRANSACTION OF
SELLER'S BUSINESS, EXCEPT WHERE FAILURE TO SO QUALIFY COULD NOT BE REASONABLY
LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
SELLER HAS THE POWER TO OWN AND HOLD
THE ASSETS IT PURPORTS TO OWN AND HOLD, AND TO CARRY ON ITS BUSINESS AS NOW
BEING CONDUCTED AND PROPOSED TO BE