AND OTHER
APPLICABLE LAWS.
3.18
ENVIRONMENTAL MATTERS.
EXCEPT AS SET FORTH ON SCHEDULE 3.18, OR
IN THE PHASE 1 REPORTS WITH RESPECT TO THE OWNED REAL PROPERTY ATTACHED TO SUCH
SCHEDULE, OTHER THAN AS TO MATTERS THAT WOULD NOT HAVE A MATERIAL ADVERSE EFFECT
(A) NEITHER THE COMPANY, NOR THE SUBSIDIARY IS IN VIOLATION OF ANY ENVIRONMENTAL
LAW AS OF THE CLOSING (WHETHER IN CONDUCTING THE BUSINESS OR OTHERWISE) AND
(B) NEITHER THE COMPANY, NOR THE SUBSIDIARY HAS RECEIVED WRITTEN NOTICE OF ANY
ACTION PENDING FROM ANY GOVERNMENTAL AUTHORITY WITH RESPECT TO ANY ALLEGED
NONCOMPLIANCE WITH, OR LIABILITY UNDER, ANY ENVIRONMENTAL LAW, INCLUDING ANY
SUCH ACTION RELATING TO THE RELEASE, DISCHARGE, SPILLAGE, OR DISPOSAL (ONSITE OR
OFFSITE) INTO THE ENVIRONMENT OF ANY HAZARDOUS MATERIAL.
DURING THE PRECEDING
FIVE (5) YEARS, NEITHER THE COMPANY, NOR THE SUBSIDIARY HAS RECEIVED ANY WRITTEN
NOTICE FROM ANY GOVERNMENTAL AUTHORITY OR THIRD PARTY ALLEGING THAT IT IS NOT IN
MATERIAL COMPLIANCE WITH ANY ENVIRONMENTAL LAW OR HAS ANY MATERIAL LIABILITY
UNDER ANY ENVIRONMENTAL LAW.
NONE OF THE COMPANY, THE SUBSIDIARY, OR THEIR
PREDECESSORS OR AFFILIATES, HAS DIRECTLY CAUSED ANY RELEASE OF PETROLEUM OR A
"HAZARDOUS SUBSTANCE," AS THAT TERM IS DEFINED IN THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, 42 U.S.C. § 9601 ET
SEQ., IN EXCESS OF A REPORTABLE QUANTITY ON ANY REAL PROPERTY OWNED OR LEASED BY
ANY SELLER ENTITY WHICH RELEASE REMAINS UNRESOLVED, OR HAS OTHERWISE RELEASED,
TREATED, STORED, DISPOSED OF, ARRANGED FOR OR PERMITTED THE DISPOSAL OF,
TRANSPORTED, HANDLED, OR EXPOSED ANY PERSON TO, ANY HAZARDOUS MATERIAL, OR OWNED
OR OPERATED ANY PROPERTY OR FACILITY WHICH IS OR HAS BEEN CONTAMINATED BY ANY
HAZARDOUS MATERIAL, SO TO AS TO GIVE RISE TO ANY MATERIAL LIABILITIES OF THE
COMPANY, THE SUBSIDIARY OR THEIR PREDECESSORS OR AFFILIATES (INCLUDING ANY
MATERIAL INVESTIGATIVE, CORRECTIVE OR REMEDIAL OBLIGATIONS) UNDER ANY
ENVIRONMENTAL LAW.
WITHOUT LIMITING THE FOREGOING, EACH OF THE COMPANY AND THE
SUBSIDIARY HAS OBTAINED, AND HAS AT ALL TIMES COMPLIED IN ALL MATERIAL RESPECTS
WITH, ALL PERMITS, LICENSES AND
26
OTHER AUTHORIZATIONS REQUIRED UNDER APPLICABLE ENVIRONMENTAL LAWS TO OPERATE THE
BUSINESS, EXCEPT WHERE THE FAILURE TO DO SO WOULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
THE COMPANY HAS FURNISHED TO BUYER ALL
ENVIRONMENTAL AUDITS, ASSESSMENTS AND REPORTS AND ALL OTHER DOCUMENTS MATERIALLY
BEARING ON ENVIRONMENTAL, HEALTH OR SAFETY LIABILITIES RELATING TO THE COMPANY,
THE SUBSIDIARY OR THEIR AFFILIATES' OR PREDECESSORS' PAST OR CURRENT PROPERTIES,
FACILITIES OR OPERATIONS, IN EACH CASE WHICH ARE IN THEIR POSSESSION OR UNDER
THEIR REASONABLE CONTROL.
3.19
INTELLECTUAL PROPERTY.
(A)
COMPLETE LISTS OF THE INTELLECTUAL PROPERTY, INCLUDING ANY
RIGHTS APPLIED FOR BY THE COMPANY OR THE SUBSIDIARY) ARE SET FORTH ON SCHEDULE
3.19(A).
TO SHAREHOLDERS' KNOWLEDGE, THE INTELLECTUAL PROPERTY IS VALID,
SUBSISTING AND ENFORCEABLE, AND THE COMPANY AND THE SUBSIDIARY HAVE USED THEIR
COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN, ENFORCE AND PROTECT THE SAME.
(B)
THE COMPANY AND THE SUBSIDIARY'S RIGHTS OF OWNERSHIP OR USE OF
ANY INTELLECTUAL PROPERTY SHALL NOT BE ADVERSELY AFFECTED BY THE