DATE.
3.08
COSTS AND EXPENSES.
(A)
EXCEPT AS PROVIDED IN SECTIONS 3.08(B) AND
(C), EACH PARTY WILL PAY ITS OWN COSTS AND EXPENSES INCURRED IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(B)
SELLER WILL PAY (I) ANY COSTS CHARGED BY THE
TITLE COMPANY FOR THE PRODUCTION OF THE TITLE COMMITMENT INCLUDING TITLE SEARCH,
EXAMINATION FEES AND EXPENSES ASSOCIATED THEREWITH, (II) RECORDING FEES FOR THE
DEEDS AND ANY OTHER CONVEYANCING INSTRUMENTS, (III) ONE-HALF OF THE ESCROW FEE,
(IV) ANY PERSONAL PROPERTY SALES/USE OR VEHICLE TRANSFER TAX APPLICABLE TO THE
SALE, (V) ANY REAL ESTATE TRANSFER, DOCUMENTARY OR STAMP TAX APPLICABLE TO THE
SALE, AND (VI) ANY FEES AND COSTS OF ANY FINANCIAL ADVISOR OR OTHER CONSULTANT
RETAINED BY SELLER.
18
(C)
PURCHASER WILL PAY (I) ANY AND ALL PREMIUMS
FOR THE TITLE POLICIES, ENDORSEMENTS TO THE TITLE POLICIES AND ANY MORTGAGEE
TITLE POLICIES AND ANY ENDORSEMENTS THERETO OR TAXES THEREON, (II) THE COST OF
OBTAINING OR UPDATING ANY NEW SURVEYS OR UPDATING ANY EXISTING SURVEYS,
(III) ONE-HALF OF THE ESCROW FEE, (IV) ANY FEES OR COSTS OF ANY FINANCIAL
ADVISOR OR OTHER CONSULTANT RETAINED BY PURCHASER, AND (V) A ONE-TIME UPFRONT LC
FEE TO THE LC BANK FOR THE FULL TERM OF THE LC TO AND INCLUDING THE LC
EXPIRATION DATE.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.01
REPRESENTATIONS AND WARRANTIES OF SELLER.
SUBJECT TO THE PROVISIONS OF SECTION 4.03 AND THE EXCEPTIONS REFERRED TO IN THE
DISCLOSURE SCHEDULE, SELLER REPRESENTS AND WARRANTS TO PURCHASER THAT THE
STATEMENTS CONTAINED IN THIS SECTION 4.01 ARE CORRECT AND COMPLETE AS OF THE
DATE OF THIS AGREEMENT AND, UNLESS A DATE IS SPECIFIED IN SUCH REPRESENTATION
AND WARRANTY, WILL BE CORRECT AND COMPLETE AS OF THE CLOSING DATE (AS THOUGH
MADE THEN AND AS THOUGH THE CLOSING DATE WERE SUBSTITUTED FOR THE DATE OF THIS
AGREEMENT THROUGHOUT THIS SECTION 4.01).
(A)
ORGANIZATION OF SELLER.
SELLER IS A
CORPORATION DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF DELAWARE.
SELLER HAS ALL NECESSARY CORPORATE POWER AND
AUTHORITY TO (I) CONDUCT ITS BUSINESS AS IT IS PRESENTLY BEING CONDUCTED, (II)
EXECUTE THIS AGREEMENT AND THE RELATED AGREEMENTS TO WHICH IT IS TO BE A PARTY
AND (III) PERFORM ITS OBLIGATIONS AND CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY.
SELLER IS DULY QUALIFIED TO DO BUSINESS IN THE STATE OF
TEXAS AND THE FAILURE TO BE QUALIFIED TO DO BUSINESS IN ANY OTHER JURISDICTION
WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT ON
THE FINANCIAL CONDITION OR RESULTS OF OPERATIONS OF SELLER OR SELLER'S ABILITY
TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE RELATED AGREEMENTS TO
WHICH IT IS TO BE A PARTY.
(B)
AUTHORIZATION.
ALL CORPORATE AND OTHER
ACTIONS OR PROCEEDINGS (INCLUDING SHAREHOLDER ACTION) TO BE TAKEN BY OR ON THE
PART OF SELLER TO AUTHORIZE AND PERMIT THE EXECUTION AND DELIVERY BY SELLER OF
THIS AGREEMENT AND THE RELATED AGREEMENTS, THE PERFORMANCE BY SELLER OF ITS
OBLIGATIONS HEREUNDER AND