equitable limitations on the
availability of specific remedies. No further action is necessary on the part of
Buyer to execute and deliver this Agreement or to consummate the Contemplated
Transactions.
(B)
AS OF THE CLOSING DATE, BUYER ENTITY HAS ALL
REQUISITE POWER AND AUTHORITY TO ASSUME BUYER'S OBLIGATIONS UNDER THIS AGREEMENT
AND TO ENTER INTO THE DOCUMENTS TO BE DELIVERED BY IT AT THE CLOSING AND TO
PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER, INCLUDING THE CONTEMPLATED
TRANSACTIONS.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY BUYER
ENTITY AND CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF BUYER ENTITY,
ENFORCEABLE AGAINST BUYER ENTITY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS FROM TIME TO TIME IN EFFECT THAT
AFFECT CREDITORS' RIGHTS GENERALLY AND BY LEGAL AND EQUITABLE LIMITATIONS ON THE
AVAILABILITY OF SPECIFIC REMEDIES. AS OF THE CLOSING DATE, THIS AGREEMENT AND
THE CONTEMPLATED TRANSACTIONS HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION
BY BUYER ENTITY'S BOARD OF DIRECTORS OR COMPARABLE GOVERNING BODY.
NO FURTHER
CORPORATE, SHAREHOLDER OR SIMILAR ACTION IS NECESSARY ON THE PART OF BUYER
ENTITY TO EXECUTE AND DELIVER THIS AGREEMENT OR TO CONSUMMATE THE CONTEMPLATED
TRANSACTIONS.
(C)
EXCEPT AS SET FORTH IN SECTION 4.2(C) OF
THE BUYER DISCLOSURE LETTER, NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT NOR THE CONSUMMATION OR PERFORMANCE OF ANY OF THE CONTEMPLATED
TRANSACTIONS WILL, DIRECTLY OR INDIRECTLY (WITH OR WITHOUT NOTICE OR LAPSE OF
TIME):
(I)
CONFLICT WITH OR VIOLATE THE
CONSTITUENT DOCUMENTS OF BUYER ENTITY AS OF THE CLOSING DATE;
(II)
CONFLICT WITH, CONSTITUTE A BREACH,
VIOLATION OR TERMINATION OF ANY PROVISION OF, OR GIVE RISE TO ANY RIGHT OF
TERMINATION, CANCELLATION OR ACCELERATION, OR LOSS OF ANY RIGHT OR BENEFIT OR
BOTH, UNDER ANY MATERIAL CONTRACT TO WHICH BUYER, BUYER ENTITY OR ANY OF THEIR
RESPECTIVE AFFILIATES IS A PARTY OR TO WHICH ANY OF THEM IS BOUND; OR
(III)
TO BUYER'S KNOWLEDGE, CONTRAVENE,
CONFLICT WITH OR RESULT IN A VIOLATION OR BREACH OF ANY GOVERNMENTAL
AUTHORIZATION, LEGAL REQUIREMENT OR ORDER APPLICABLE TO BUYER OR, AS OF THE
CLOSING DATE, BUYER ENTITY OR TO WHICH BUYER OR, AS OF THE CLOSING DATE, BUYER
ENTITY MAY BE SUBJECT.
(D)
EXCEPT AS SET FORTH IN SECTION 4.2(D) OF THE
BUYER DISCLOSURE LETTER, NEITHER BUYER NOR BUYER ENTITY IS REQUIRED TO GIVE ANY
NOTICE TO OR OBTAIN ANY CONSENT FROM ANY PERSON IN CONNECTION WITH THE EXECUTION
AND DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OR PERFORMANCE OF ANY OF THE
CONTEMPLATED TRANSACTIONS.
(E)
AS OF THE CLOSING DATE, BUYER ENTITY HAS
ASSUMED ALL OF THE OBLIGATIONS OF BUYER UNDER THIS AGREEMENT, SUBJECT TO THE
TERMS OF SECTION 13.8.
BUYER ENTITY IS CONTROLLED DIRECTLY OR INDIRECTLY BY
BUYER.
38
4.3
CERTAIN PROCEEDINGS
There is no pending or, to Buyer's Knowledge, threatened Proceeding that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with, any of the Contemplated Transactions.
To Buyer's
Knowledge, no event