ANY NATURE (WHETHER ABSOLUTE, KNOWN OR
UNKNOWN, ACCRUED, FIXED, CONTINGENT, LIQUIDATED, UNLIQUIDATED, DUE OR TO BECOME
DUE, OR OTHERWISE), EXCEPT FOR (I) LIABILITIES INCLUDED OR REFLECTED IN THE
COMPANY'S FINANCIAL STATEMENTS AND ADEQUATELY RESERVED AGAINST THEREIN IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED, OR (II) LIABILITIES OR PERFORMANCE
OBLIGATIONS ARISING SUBSEQUENT TO THE DATE OF THE BALANCE SHEET IN THE ORDINARY
COURSE OF BUSINESS (AND NOT AS A RESULT OF A BREACH OR DEFAULT BY THE COMPANY OR
ANY SUBSIDIARY) OUT OF OR UNDER AGREEMENTS, CONTRACTS, LEASES, ARRANGEMENTS OR
COMMITMENTS TO WHICH THE COMPANY OR SUBSIDIARY OR AFFILIATE IS A PARTY.
(b)
To the extent that (i) the subject matter or events giving rise to
a breach of the Seller's representations set forth in Section 3.32(a) are
specifically covered by another representation in Article 3 and (ii) such other
representation is qualified by Seller's Knowledge, then such knowledge qualifier
shall be deemed included in this Section 3.32 solely for purposes of determining
whether the subject matter or events in question constitute a breach of this
Section 3.32.
3.33.
CLOSING DATE. ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER
CONTAINED IN THIS ARTICLE 3 AND ELSEWHERE IN THIS AGREEMENT AND ALL INFORMATION
DELIVERED IN ANY SCHEDULE OR IN ANY CERTIFICATE DELIVERED BY ANY SELLER TO THE
PURCHASER ARE TRUE AND CORRECT ON THE CLOSING DATE.
3.34.
REPRESENTATIONS AND WARRANTIES. NO REPRESENTATION OR WARRANTY BY THE
SELLER INCLUDED IN THIS AGREEMENT, TO SELLER'S KNOWLEDGE, CONTAINS ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITS ANY MATERIAL FACT NECESSARY TO MAKE THE
INFORMATION CONTAINED HEREIN NOT MISLEADING.
3.35.
LIMITATION ON REPRESENTATIONS AND WARRANTIES. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE 3, NEITHER THE SELLER,
THE COMPANY, THE SUBSIDIARY NOR THE AFFILIATE, NOR ANY OTHER PERSON ACTING ON
BEHALF OF THE SELLER, THE COMPANY, THE SUBSIDIARY OR THE AFFILIATE, MAKES ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING, WITHOUT LIMITATION,
THE STOCK, THE BUSINESS, THE COMPANY AND THE SUBSIDIARY OR ANY OTHER MATTER.
3.36
ASSIGNABILITY OF REPRESENTATIONS AND WARRANTIES. IN THE EVENT
PURCHASER SELLS OR OTHERWISE TRANSFERS THE SUBSIDIARY TO ANOTHER ENTITY OWNED OR
CONTROLLED BY PURCHASER WITHIN THE COMPANY'S CURRENT FISCAL YEAR EACH OF THE
WARRANTIES AND REPRESENTATIONS IN THIS ARTICLE 3 OF THIS AGREEMENT SHALL BE
DEEMED, AS APPLICABLE, TO BE ASSIGNED TO SUCH TRANSFEREE.
21
ARTICLE 4
COVENANTS OF THE SELLER
4.1.
FURTHER ASSURANCES. THE SELLER HERETO SHALL FROM TIME TO TIME AFTER
THE CLOSING DATE EXECUTE AND DELIVER SUCH ADDITIONAL INSTRUMENTS AND DOCUMENTS,
AS PURCHASER MAY REASONABLY REQUEST. WITHOUT LIMITING THE FOREGOING, SELLER
SPECIFICALLY AGREES TO TAKE ANY AND ALL ACTIONS NECESSARY UNDER APPLICABLE LAW
TO ENSURE THAT COMPANY AND SUBSIDIARY HAVE FULL USE OF AND RIGHTS IN THE
INTELLECTUAL PROPERTY SET FORTH ON SCHEDULE 3.13 FOLLOWING CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. SELLER ALSO AGREES TO EXECUTE ALL
PAPERS AND TO GIVE SUCH TESTIMONY AND TO PERFORM SUCH OTHER ACTS AS SAID
PURCHASER OR AFFILIATES MAY REQUIRE TO ENABLE IT OR THEM TO PROCURE