Form Apa - Asset Purchase Agreement Page 19
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(C)
Seller has paid all premiums (and interest charges
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and penalties for late payment, if applicable) due the PBGC with respect to each Pension
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Plan for each plan year thereof for which such premiums are required. Within the past
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six (6) years, no proceeding has been commenced by the PBGC to terminate any Pension
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Plan.
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(ii)
Multiemployer Plans.
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(A)
Seller has not withdrawn from a Multiemployer
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Plan in a "complete withdrawal" or a "partial withdrawal" as defined in Sections 4203
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and 4205 of ERISA, respectively, so as to result in a Liability of Seller which has not
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been fully paid, except with respect to any such withdrawal where Seller and a third
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person have agreed to comply with the provisions of Section 4204 of ERISA.
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(B)
To Seller's Knowledge, with respect to each
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Multiemployer Plan: (1) no such Multiemployer Plan has been terminated or has been in
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reorganization under ERISA so as to result, directly or indirectly, in any material
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Liability of Seller under Title IV of ERISA; (2) no proceeding has been initiated by any
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person (including the PBGC) to terminate any Multiemployer Plan.
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4.17
Inventory
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Except as set forth in Schedule 4.17, the Inventory (a) is usable and saleable in the
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ordinary course of the Business except to the extent that the transactions contemplated by
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this Agreement make any of the Inventory obsolete under the Transition Trademark
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License, (b) is not adulterated or misbranded, and (c) may be shipped in interstate
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commerce in accordance with the Federal Food, Drug and Cosmetic Act, as amended.
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ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer hereby represents and warrants to Seller as follows:
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5.1
Organization of Buyer
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Buyer is a corporation duly organized, validly existing and in good standing under
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the laws of the state of its incorporation with full power and authority to own and lease its
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properties and conduct its business as it is presently being conducted. Buyer is duly
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authorized, qualified or licensed to do business as a foreign corporation and is in good
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standing, in each of the jurisdictions in which its right, title and interest in or to any of the
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assets held by it, or the conduct of its business, requires such authorization, qualification
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or licensing, except where failure to be so authorized, qualified, or licensed would not,
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individually or in the aggregate, have a material adverse effect on the condition (financial
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or otherwise), liabilities, operations or results of operations of Buyer.
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Form APA.doc
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