ITS PROPERTIES OR ITS BUSINESSES ARE SUBJECT AS OF THE DATE
HEREOF, (III) VIOLATES OR WILL VIOLATE, OR CONFLICTS WITH OR WILL CONFLICT WITH
ANY PROVISION OF, OR CONSTITUTES A DEFAULT UNDER, THE CERTIFICATE OF
INCORPORATION OR BYLAWS OF THE BUYER OR (IV)(A) CONFLICTS WITH, VIOLATES,
BREACHES OR CONSTITUTES A MATERIAL DEFAULT (OR AN EVENT WHICH, WITH NOTICE OR
LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A MATERIAL DEFAULT) UNDER, REQUIRES ANY
CONSENT UNDER, OR GIVES RISE TO A RIGHT TO TERMINATE, AMEND, ACCELERATE,
SUSPEND, REVOCATE OR CANCEL ANY MORTGAGE, CONTRACT, AGREEMENT, DEED OF TRUST,
LICENSE, LEASE OR OTHER INSTRUMENT, ARRANGEMENT, COMMITMENT, OBLIGATION,
UNDERSTANDING OR RESTRICTION OF ANY KIND TO WHICH THE BUYER IS A PARTY OR BY
WHICH ITS PROPERTIES MAY BE BOUND OR (B) WILL CAUSE, OR GIVE ANY PERSON GROUNDS
TO CAUSE, AN ACCELERATION (WITH NOTICE OR LAPSE OF TIME OR BOTH) OF THE MATURITY
OF, OR WILL INCREASE, ANY LIABILITY OR OBLIGATION OF SUCH PARTY AND IN THE CASE
OF EITHER CLAUSE (IV)(A) OR (IV)(B) ABOVE, WHICH CONFLICT, VIOLATION, BREACH,
DEFAULT, LIABILITY OR OBLIGATION, INDIVIDUALLY OR IN THE AGGREGATE, HAS OR WOULD
HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF THE BUYER TO PERFORM ITS
OBLIGATIONS HEREUNDER.
A.
REPRESENTATIONS AND WARRANTIES OF THE SELLER.
THE SELLER
REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF:
(E)
THE SELLER (I) IS THE DIRECT OWNER, BENEFICIALLY AND OF RECORD, OF THE
SELLER INTEREST AND (II) HAS NOT MADE ANY ASSIGNMENT, PLEDGE, HYPOTHECATION OR
TRANSFER OF, AND HAS NOT CREATED, OR PERMITTED TO EXIST, ANY SECURITY INTEREST
IN OR OTHER ENCUMBRANCE ON, THE SELLER INTEREST;
(F)
TO THE KNOWLEDGE OF THE SELLER, THE SELLER INTEREST HAS BEEN DULY
AUTHORIZED AND VALIDLY ISSUED;
4
(G)
THE SELLER IS A CORPORATION, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH ALL REQUISITE CORPORATE
POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO CARRY ON ITS
BUSINESS AS NOW BEING CONDUCTED;
(H)
THE SELLER IS DULY LICENSED OR QUALIFIED TO DO BUSINESS AS A FOREIGN
CORPORATION AND IS IN GOOD STANDING IN ALL JURISDICTIONS IN WHICH THE PROPERTY
OWNED OR LEASED BY IT OR THE ACTIVITIES CONDUCTED BY IT REQUIRES IT TO BE SO
QUALIFIED (EXCEPT WHERE THE FAILURE TO SO QUALIFY WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT ON THE ABILITY OF THE SELLER TO PERFORM ITS OBLIGATIONS
HEREUNDER);
(I)
(I) THE SELLER HAS THE NECESSARY AND APPROPRIATE POWER AND AUTHORITY TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO CARRY OUT ITS OBLIGATIONS HEREUNDER
AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY, (II) THE EXECUTION AND
DELIVERY BY THE SELLER OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED BY THE BOARD OF
DIRECTORS OF THE SELLER, (III) NO OTHER CORPORATE ACTION ON THE PART OF THE
SELLER OR ANY OTHER PERSON OR ENTITY, WHETHER PURSUANT TO THE CERTIFICATE OF
INCORPORATION OR BYLAWS OF THE SELLER OR BY LAW OR OTHERWISE, ARE NECESSARY