ASSET PURCHASE AGREEMENT

EXHIBIT 10.3

ASSET PURCHASE AGREEMENT

     This Asset Purchase Agreement (the “Agreement”) is made and entered into this 30th day of May, 2008, between and among Texas Center for TCSD of Waco, LLC, a Texas limited liability company (“Buyer”), and Sleep Center of Waco, Ltd., a Texas limited partnership (“Seller”).

     This Agreement contemplates a transaction in which Buyer will purchase substantially all of the assets (and assume certain of the liabilities) of Seller.

     Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the parties agree as follows.

ARTICLE I
DEFINITIONS

     1.1 The following capitalized words and phrases have the stated meanings:

     “ Accounts Receivable ” means all rights to payment and accounts receivable owned or held by Seller in connection with services provided on or after March 1, 2008 by Seller, together with all interest, late charges, penalties, collection fees and other sums that may be due and payable in connection with such rights to payment or accounts receivable.

     “ Acquired Assets ” means all right, title, and interest in and to all of the assets of Seller including, without limitation, all of (a) the tangible personal property identified on Schedule 1.1 attached hereto, (b) its Accounts Receivable, (c) its Intellectual Property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, (d) to the extent assignable, its franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies, (e) the Seller Agreements and all rights thereunder, (f) its phone numbers and e-mail addresses; (g) its web sites and the contents thereof, and (h) its books, records, ledgers, files, documents, correspondence, lists, plats, engineering plans, drawings, and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials relating in any way to the business of Seller; provided, however, that the Acquired Assets shall not include (i) the charter, qualifications to conduct business as a foreign limited partnership, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, transfer books, and other documents relating to the organization, maintenance, and existence of Seller as a limited partnership, (ii) any of the rights of Seller under this Agreement (or under any side agreement between Seller on the one hand and Buyer on the other hand entered into on or after the date of this Agreement), or (iii) any of the Excluded Assets.

     “ Affiliate ” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended.

     “ Assumed Liabilities ” means (a) all obligations of Seller under the Seller Agreements either (i) to furnish goods, services and other non-Cash benefits to another party after the Closing, or (ii) to pay for goods, services and other non-Cash benefits that another party will furnish to it after the Closing, and (b) all Liabilities and obligations of Seller set forth in Schedule 1.1(a) attached hereto.

     “ Basis ” means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence.

     “ Buyer Indemnitees ” has the meaning set forth in Section 7.1 below.

     “ Closing ” has the meaning set forth in Section 2.1(d) below.

     “ Closing Date ” has the meaning set forth in Section 2.1(d) below.

     “ Code ” means the Internal Revenue Code of 1986, as amended.

     “ Confidential Information ” means any information concerning the business and affairs of Seller that is not already generally available to the public other than as a result of a breach of this Agreement by Seller.

     “ Damages ” has the meaning set forth in Section 7.1 below.

     “ Environmental, Health, and Safety Laws ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970, each as amended, together with all other laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state and local governments (and all agencies thereof) concerning pollution or protection of the environment, public health and safety, or employee health and safety, including laws relating to emissions, discharges, releases, or threatened releases of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes into ambient air, surface water, ground water, or lands or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, or handling of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

     “ Excluded Assets ” means the assets listed on Schedule 1.1(b) attached hereto.

     “ Financial Statements ” has the meaning set forth in Section 3.7 below.

     “ Graymark ” means Graymark Healthcare, Inc., an Oklahoma corporation.

     “ Intellectual Property ” means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-

in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all assignable computer software (including data and related documentation), and (g) all copies and tangible embodiments thereof (in whatever form or medium).

     “ Knowledge of Seller ” means the actual knowledge after reasonable investigation of Seller and its general partner. .

     “ Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

     “ Material Adverse Effect ” means, with respect to Seller, any change, event, violation, inaccuracy, circumstance or effect that is materially adverse to the business, assets, liabilities, financial condition, results of operations or prospects of Seller taken as a whole, other than as a result of: (i) changes adversely affecting the United States economy (so long as Seller is not disproportionately affected thereby); (ii) changes adversely affecting the industry in which Seller operates (so long as Seller is not disproportionately affected thereby); (iii) the announcement or pendency of the transactions contemplated by this Agreement; (iv) changes in laws; or (v) acts of war or terrorism.

     “ Most Recent Balance Sheet ” means the balance sheet contained within the Most Recent Financial Statements.

     “ Most Recent Financial Statements ” has the meaning set forth in Section 3.7 below.

     “ Most Recent Fiscal Month End ” has the meaning set forth in Section 3.7 below.

     “ Most Recent Fiscal Year End ” has the meaning set forth in Section 3.7 below.

     “ Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).

     “ PBGC ” means the Pension Benefit Guaranty Corporation.

     “ Permitted Encumbrances ” means the Security Interests specifically identified in Schedule 1.1(a) attached hereto as Security Interests affecting some or all of the Acquired Assets and that will not be released/terminated prior to Closing.

     “ Person ” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization, a governmental entity (or any department, agency, or political subdivision thereof), or any other entity of any kind.

     “ Security Interest ” means any mortgage, pledge, lien, encumbrance, charge or other security interest of any kind or nature, other than liens for Taxes not yet due and payable.

     “ Seller Agreements ” means the agreements identified in Schedule 1.1(c) attached hereto.

     “ Seller Indemnitees ” has the meaning set forth in Section 7.2 below.

     “ Subsidiary ” means any corporation with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the directors.

     “ Tax ” means any federal, state or local income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

     “ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

ARTICLE II
PURCHASE AND SALE OF ASSETS

     2.1 Basic Transaction .

     (a) Purchase and Sale of Assets . On and subject to the terms and conditions of this Agreement, at the Closing, Buyer shall purchase from Seller, and Seller shall sell, transfer, convey, and deliver to Buyer, free and clear of all Security Interests and restrictions on transfer other than the Permitted Encumbrances, all of the Acquired Assets for the consideration specified below in this Article II.

     (b) Delivery of Graymark Stock . Within five (5) days after the Closing Date, Buyer will deliver to Seller that number of shares of Graymark common stock, par value $0.0001 per share (the “Graymark Stock”), having an aggregate Agreed Value equal to: (i) the sum of Nine Hundred Thousand Dollars ($900,000), minus (ii) the value of all Graymark Stock delivered to Plano Sleep Center, LTD and Southlake Sleep Center, LTD. under that certain Asset Purchase Agreement between Plano Sleep Center, LTD, Southlake Sleep Center, LTD and Capital Sleep Management, LLC of even date herewith (the “Plano Agreement”). For purposes of this Agreement, the “Agreed Value” per share of the Graymark Stock shall mean the average closing price for the Graymark Stock as

reported by the OTC Bulletin Board for the ten (10) consecutive trading days ending on the third trading day immediately preceding the Closing Date. In addition, Graymark, shall deliver to Seller options to purchase an additional amount of Graymark Stock equal to (i) 35,000 shares minus (ii) that number of optioned shares of Graymark Stock received by Plano Sleep Center, LTD and Southlake Sleep Center, LTD under the Plano Agreement; the exercise price for all such options shall be Five Dollars ($5.00) per share. Such options shall expire if not exercised on or before the second anniversary of the Closing Date.

     (c) Assumption of Liabilities . On and subject to the terms and conditions of this Agreement, Buyer shall assume and become responsible for all of the Assumed Liabilities at the Closing. Buyer will not assume or have any responsibility, however, with respect to any other obligation or Liability of Seller not included within the definition of Assumed Liabilities.

     (d) The Closing . Subject to and in accordance with the provisions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place via fax or electronically transmitted signatures (with originals to be delivered via overnight delivery), commencing at 9:00 a.m. local time on the third business day following the satisfaction or waiver of all conditions to the obligations of the parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective parties will take at the Closing itself), or at such other time and place as Buyer and Seller may mutually determine (the “Closing Date”).

     (e) Deliveries at the Closing . At the Closing, (i) Seller will deliver to Buyer the various certificates, instruments, and documents referred to in Section 8.1 below; (ii) Buyer will deliver to Seller the various certificates, instruments, and documents referred to in Section 8.2 below; (iii) Seller will execute, acknowledge (if appropriate), and deliver to Buyer (A) a bill of sale in the form attached hereto as Exhibit “A”, and (B) such other instruments of sale, transfer, conveyance, and assignment as Buyer and its counsel reasonably may request; (iv) Buyer will execute, acknowledge (if appropriate), and deliver to Seller (A) an assumption agreement in the form attached hereto as Exhibit “B” and (B) such other instruments of assumption as Seller and its counsel reasonably may request; and (v) Buyer will deliver to Seller the consideration specified in Section 2.1(b) above.

ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING
THE TRANSACTION

     Seller represents and warrants to Buyer that the statements contained in this Article III are correct and complete as of the date of this Agreement and 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 Article III).

     3.1 Organization of Seller . Seller is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Texas. Seller is not qualified or

licensed to do business in any other jurisdiction. Attached hereto as Exhibit “C” are true, accurate and complete copies of the currently effective Certificate of Limited Partnership and Limited Partnership Agreement of Seller.

     3.2 Authorization of Transaction . Seller has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller enforceable in accordance with its terms and conditions, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

     3.3 Noncontravention . Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Seller is subject or any provision of the Certificate of Limited Partnership or Limited Partnership Agreement of Seller or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Seller is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest or lien of any kind upon any of its assets), in each case excepting any such violation, conflict, breach or default which would not have a Material Adverse Effect. Except as described in Schedule 3.3, Seller is not required to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government, governmental agency or other Person in order for the parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in Section 2 above).

     3.4 Brokers’ Fees . Seller has no Liability or obligation to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated or to which the Acquired Assets could become subject.

     3.5 Title to Assets . Except as described on Schedule 3.5, Seller has good and marketable title to, or a valid leasehold interest in, all of the properties and assets used by it, located on its premises, or shown on the Most Recent Balance Sheet or acquired after the date thereof, free and clear of all Security Interests, except for properties and assets disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet. Without limiting the generality of the foregoing, Seller has, or at Closing will have, good and marketable title to all of the Acquired Assets owned by Seller, free and clear of any Security Interests (other than the Permitted Encumbrances) or restrictions on transfer.

     3.6 Subsidiaries . Seller has no Subsidiaries. Except as described on Schedule 3.6, Seller has no direct or indirect equity interest in any corporation, partnership, joint venture, business association or other entity.

     3.7 Financial Statements . Seller has delivered to Buyer copies of the following financial statements (collectively the “Financial Statements”) of Seller at Schedule 3.7:

(i) unaudited balance sheets, statements of income, and statements of cash flows as of and for the fiscal years ended December 31, 2006 and December 31, 2007 (the “Most Recent Fiscal Year End”); and (ii) an unaudited consolidated balance sheet and statement of income (the “Most Recent Financial Statements”) as of and for the three months ended March 31, 2008 (the “Most Recent Fiscal Month End”). The Financial Statements (including the notes thereto) have been prepared on a consistent basis throughout the periods covered thereby, present fairly the financial condition of Seller as of such dates and the results of operations of Seller for such periods, are true and correct in all material respects and do not contain any misstatement of a material fact or omit to state any material matter required to make such Financial Statements not misleading; provided, however, that the Most Recent Financial Statements are subject to normal year-end adjustments and lack footnotes and other presentation items.

     3.8 Events Subsequent to Most Recent Fiscal Year End . To the Knowledge of Seller, since the Most Recent Fiscal Year End, there has not been any material adverse change in the business, financial condition, operations, results of operations, or future prospects of Seller. Without limiting the generality of the foregoing, since that date:

     (i) Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;

     (ii) Seller has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $5,000 or outside the Ordinary Course of Business;

     (iii) no party (including Seller) has accelerated, terminated, modified, or canceled any material agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which Seller is a party or by which it or any of its assets is bound;

     (iv) Seller has not imposed any Security Interest upon any of the Acquired Assets;

     (v) Seller has not made any capital expenditure (or series of related capital expenditures) either involving more than $5,000 or outside the Ordinary Course of Business;

     (vi) Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of any other Person either involving more than $5,000 or outside the Ordinary Course of Business;

     (vii) Seller has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;

     (viii) there has been no change made or authorized in the Certificate of Limited Partnership or the limited partnership agreement of Seller;

     (ix) Seller has not declared, set aside or paid any distribution to its partners or redeemed, purchased or otherwise acquired any of its partnership interests;

     (x) Seller has not experienced any material damage, destruction, or loss (whether or not covered by insurance) to its property;

     (xi) Seller has not made any loan to, or entered into any other transaction with, any of its partners or employees outside the Ordinary Course of Business;

     (xii) Seller has not adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance or other plan, contract or commitment for the benefit of any of its employees (or taken any such action with respect to any other employee benefit plan);

     (xiii) there has not been any other occurrence, event, incident, action, failure to act, or transaction involving Seller that would have a Material Adverse Effect; and

     (xiv) Seller has not committed to any of the foregoing.

     3.9 Undisclosed Liabilities . Seller has no Liability (and there is no Basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against Seller giving rise to any Liability), except for (i) Liabilities set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto), (ii) Liabilities which have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement, or violation of law), and (iii) the Liabilities identified on Schedule 3.9 attached hereto.

     3.10 Legal Compliance . Seller has complied in all material respects with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local and foreign governments (and all agencies thereof), and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced or, to the Knowledge of Seller, threatened against Seller alleging any failure so to comply.

     3.11 Tax Matters .

     (a) Seller has filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects. All Taxes owed by Seller (whether or not shown on any Tax Return) have been paid or will be paid in accordance with the applicable extensions. Except as described on Schedule 3.11, Seller currently is not the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where Seller does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Security Interests

on any of the assets of Seller that arose in connection with any failure (or alleged failure) to pay any Tax.

     (b) Seller has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, partner, or other third party.

     (c) Seller has not waived any statute of limitations in respect of Taxes or agreed to an extension of time with respect to a tax assessment or deficiency.

     (d) The unpaid Taxes of Seller (i) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and tax income) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Seller in filing its Tax Returns.

     3.12 Real Property .

     (a) Seller does not own any real property.

     (b) Schedule 3.12(b) lists and describes briefly all real property leased by Seller. Seller has not subleased any real property. Correct and complete copies of each of the leases listed in Schedule 3.12(b) (as amended to date) are attached hereto as Exhibit “D”. Except as described on Schedule 3.12(b), with respect to each such lease:

     (i) the lease is legal, valid, binding, enforceable and in full force and effect;

     (ii) the lease will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby;

     (iii) no party to the lease is in breach or default, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;

     (iv) no party to the lease has repudiated any provision thereof;

     (v) there are no disputes, oral agreements, or forbearance programs in effect as to the lease;

     (vi) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold;

     (vii) all facilities leased thereunder are supplied with utilities and other services necessary for the operation of said facilities;

     (viii) there are no pending or, to the Knowledge of Seller, threatened condemnation proceedings, lawsuits, or administrative actions relating to the parcel, or other matters affecting adversely the use, occupancy or value, or the marketability of title, thereof; and

     (ix) there are no parties (other than Seller) in possession of the parcel of real property.

     3.13 Intellectual Property .

     (a) Seller does not own any Intellectual Property.

     (b) To the Knowledge of Seller, Seller has not interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of third parties. Seller has never received any charge, complaint, claim, demand or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that Seller must license or refrain from using any Intellectual Property rights of any third party). To the Knowledge of Seller, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property rights of Seller.

     (c) Schedule 3.13(c) identifies each item of Intellectual Property that any third party owns and that Seller uses pursuant to license, sublicense, agreement or permission. Seller has delivered to Buyer correct and complete copies of all such licenses, sublicenses, agreements and permissions (as amended to date).

     (d) To the Knowledge of Seller, Seller will not interfere with, infringe upon, misappropriate or otherwise come into conflict with any Intellectual Property rights of third parties as a result of the continued operation of its business as presently conducted and as presently proposed to be conducted.

     3.14 Tangible Assets . Seller owns or leases all buildings, machinery, equipment, and other tangible assets necessary for the conduct of its business as presently conducted and as presently proposed to be conducted. The parties acknowledge and agree that all tangible Acquired Assets are being conveyed to Buyer “AS IS, WHERE IS,” and Seller makes any representation or warranty regarding the merchantability or fitness for a particular purpose of any tangible Acquired Asset.

     3.15 Contracts . Schedule 3.15 lists the following contracts and other agreements to which Seller is a party or is bound:

     (i) any agreement (or group of related agreements) for the lease of personal property to or from any Person;

     (ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services;

     (iii) any agreement concerning a partnership or joint venture;

     (iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation;

     (v) any agreement concerning confidentiality or noncompetition;

     (vi) any agreement involving any of the partners of Sellers and/or their respective Affiliates;

     (vii) any profit sharing, deferred compensation, severance or other plan or arrangement for the benefit of its current or former officers and/or employees;

     (viii) any collective bargaining agreement;

     (ix) any agreement for the employment of any individual on a full-time, part-time, consulting or other basis;

     (x) any agreement under which it has advanced or loaned any amount to any Person;

     (xi) any agreement under which the consequences of a default or termination could have an adverse effect on the business, financial condition, operations, results of operations or future prospects of Seller; or

     (xii) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $5,000.00.

A correct and complete copy of each written agreement listed in Schedule 3.15 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 3.15 is attached hereto as Exhibit “E”. With respect to each of the Seller Agreements, except as set forth in Schedule 3.15: (A) the Seller Agreement is legal, valid, binding, enforceable and in full force and effect; (B) the Seller Agreement will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) no party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the Seller Agreement; and (D) no party has repudiated any provision of the Seller Agreement.

     3.16 Litigation . Schedule 3.16 sets forth each instance in which Seller (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge, or (ii) is a party or, to the Knowledge of Seller, is threatened to be made a party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state or local jurisdiction or before any arbitrator.

     3.17 Employees . To the Knowledge of Seller, no executive, key employee or group of employees has any plans to terminate employment with Seller. Seller is not a party to or bound

by any collective bargaining agreement, nor has Seller experienced any strikes, grievances, claims of unfair labor practices, or other collective bargaining disputes. Seller has not committed any unfair labor practice. To the Knowledge of Seller, no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to employees of Seller.

     3.18 ERISA Compliance . Schedule 3.18 identifies each and every employee benefit plan, including each employee pension benefit plan and employee welfare benefit plan (as such terms are defined in ERISA), which is currently maintained by Seller.

     With respect to such plans the following apply:

     (a) Each such employee benefit plan complies in form and in operation in all respects with the applicable requirements of ERISA, the Code and all other applicable laws.

     (b) All required reports and descriptions including Forms 5500, the summary annual reports and summary plan descriptions have been filed or distributed appropriately with respect to each such employee benefit plan.

     (c) The requirements of Part VI of Subtitle B of Title I of ERISA and of Code Section 4980B have been met with respect to each such employee benefit plan which is an employee welfare benefit plan.

     (d) All contributions including all employer contributions and employee salary reduction contributions which are due have been paid to each such employee benefit plan which is an employee pension benefit plan and all contributions for any period ending on or before the Closing Date which are not yet due have been paid to each such employee pension benefit plan or accrued in accordance with the past customs and practice of Seller. All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each such employee benefit plan which is an employee welfare benefit plan.

     (e) Each employee benefit plan which is an employee pension plan meets the requirements for qualification under Code Section 401(a).

     (f) The market value of assets of each such employee benefit plan which is an employee pension benefit plan other than a multi-employer plan equals or exceeds the present value of all vested and nonvested liabilities thereunder determined in accordance with PBGC’s methods, factors and assumptions applicable to the employee pension benefit plan terminating on the date for determination.

     (g) Seller has delivered to Buyer correct and complete copies of all plan documents, summary plan descriptions, the most recent determination letter received from the Internal Revenue Service, the most recent Form 5500 annual report and all related trust agreements, insurance contracts and other funding agreements which implement each such employee benefit plan.

     (h) With respect to each employee benefit plan that Seller maintains or ever has maintained or to which Seller contributes, ever has contributed, or ever has been required to contribute:

     (A) No such employee benefit plan which is an employee pension benefit plan (other than any multiemployer plan) has been completely or partially terminated or been the subject of a reportable event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any such employee pension benefit plan (other than any multiemployer plan) has been instituted or, to the Knowledge of Seller, is threatened.

     (B) There have been no prohibited transactions with respect to any such employee benefit plan. No fiduciary has any liability for material breach of fiduciary duty or any other material failure to act or comply in connection with the administration or investment of the assets of any such employee benefit plan. No action, suit, proceeding, hearing, or investigation with respect to the administration or the investment of the assets of any such employee benefit plan (other than routine claims for benefits) is pending or, to the Knowledge of Seller, is threatened.

     (C) Seller has not incurred any material liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due) to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability) or under the Code with re