EXECUTION, DELIVERY OF AND PERFORMANCE UNDER THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO, FEES AND COSTS OF PROFESSIONALS SUCH AS ATTORNEYS,
BANKERS, CONSULTANTS, ACCOUNTANTS AND FINANCIAL ADVISORS (THE "TRANSACTION
COSTS").
3.30
NO INSOLVENCY. SELLER IS NOT NOW AND WILL NOT BE
RENDERED INSOLVENT AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. THE ASSETS OF SELLER REMAINING AFTER THE CLOSING (INCLUDING THE SALE
PROCEEDS) EXCEED SELLER'S LIABILITIES. SELLER IS NOT NOW AND IS NOT ABOUT TO
ENGAGE IN ANY BUSINESS OR TRANSACTION FOR WHICH SELLER'S REMAINING ASSETS AFTER
THE CLOSING WILL BE UNREASONABLY SMALL AND SELLER DOES NOT INTEND TO INCUR OR
BELIEVE THAT SELLER WILL INCUR DEBTS BEYOND ITS ABILITY TO PAY.
3.31
INTERCOMPANY ARRANGEMENTS AND ACCOUNTS. EXCEPT AS
SET FORTH IN SECTION 3.31 OF THE DISCLOSURE SCHEDULE, SELLER HAS (I) TERMINATED
ALL CONTRACTS OR OTHER ARRANGEMENTS BETWEEN SELLER OR ITS AFFILIATES (OTHER THAN
XCEL JAPAN), ON THE ONE HAND, AND XCEL JAPAN, ON THE OTHER HAND, THAT WERE
ENTERED INTO ON OR PRIOR TO THE CLOSING AND (II) SETTLED ALL INTERCOMPANY
RECEIVABLES AND PAYABLES BETWEEN SELLER OR ITS AFFILIATES (OTHER THAN XCEL
JAPAN), ON THE ONE HAND, AND XCEL JAPAN, ON THE OTHER HAND, THAT WERE INCURRED
ON OR PRIOR TO THE CLOSING, IN EACH CASE WITHOUT FURTHER RECOURSE TO OR ANY
LIABILITY OF XCEL JAPAN.
48
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYERS
Buyers jointly and severally represent and warrant to Seller as follows:
4.1
ORGANIZATION AND GOOD STANDING.
EACH OF
BUYER AND STOCK BUYER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN
GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION.
4.2
AUTHORITY; NO CONFLICT.
(A)
THIS AGREEMENT CONSTITUTES THE LEGAL,
VALID, AND BINDING OBLIGATION OF EACH OF BUYER AND STOCK BUYER, ENFORCEABLE
AGAINST IT IN ACCORDANCE WITH ITS TERMS.
EACH OF BUYER AND STOCK BUYER HAS THE
ABSOLUTE AND UNRESTRICTED RIGHT, POWER, AND AUTHORITY TO EXECUTE AND DELIVER
THIS AGREEMENT.
(B)
EXCEPT AS SET FORTH IN SCHEDULE 4.2, NEITHER
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY BUYER OR STOCK BUYER NOR THE
CONSUMMATION OR PERFORMANCE OF ANY OF THE CONTEMPLATED TRANSACTIONS BY EITHER
WILL GIVE ANY PERSON THE RIGHT TO PREVENT, DELAY, OR OTHERWISE INTERFERE WITH
ANY OF THE CONTEMPLATED TRANSACTIONS PURSUANT TO:
(I)
ANY PROVISION OF BUYER'S OR STOCK
BUYER'S ORGANIZATIONAL DOCUMENTS;
(II)
ANY RESOLUTION ADOPTED BY THE BOARD OF
DIRECTORS OR THE STOCKHOLDERS OF BUYER OR STOCK BUYER;
(III)
ANY LEGAL REQUIREMENT OR ORDER TO WHICH
BUYER OR STOCK BUYER MAY BE SUBJECT; OR
(IV)
ANY CONTRACT TO WHICH BUYER OR STOCK BUYER IS
A PARTY OR BY WHICH BUYER MAY BE BOUND.
Except as set forth in Schedule 4.2, Buyers are not and will not be required to
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.
4.3
INVESTMENT INTENT.
STOCK BUYER IS ACQUIRING
THE XCEL JAPAN SHARES FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO THEIR