SELLER IS, AND AT ALL TIMES HAS BEEN, IN MATERIAL
COMPLIANCE WITH, AND HAS NOT BEEN AND IS NOT IN MATERIAL VIOLATION OF OR LIABLE
UNDER, ANY ENVIRONMENTAL LAW.
SELLER HAS NO BASIS TO EXPECT, NOR HAS ANY OTHER
PERSON FOR WHOSE CONDUCT SELLER IS OR MAY BE HELD TO BE RESPONSIBLE RECEIVED,
ANY ACTUAL OR THREATENED
19
ORDER, NOTICE, OR OTHER COMMUNICATION FROM (A) ANY PERSON OR PRIVATE CITIZEN
ACTING IN THE PUBLIC INTEREST OR (B) THE CURRENT OR PRIOR OWNER OR OPERATOR OF
ANY FACILITY, OF ANY ACTUAL OR POTENTIAL VIOLATION OR FAILURE TO COMPLY WITH ANY
ENVIRONMENTAL LAW, OR OF ANY ACTUAL OR THREATENED OBLIGATION TO UNDERTAKE OR
BEAR THE COST OF ANY ENVIRONMENTAL, HEALTH AND SAFETY LIABILITY WITH RESPECT TO
SUCH FACILITY OR ANY OTHER PROPERTIES OR ASSETS (WHETHER REAL, PERSONAL OR
MIXED) IN WHICH SELLER HAS HAD AN INTEREST.
NO UNDERGROUND TANK OR OTHER
UNDERGROUND STORAGE RECEPTACLE FOR HAZARDOUS SUBSTANCES IS CURRENTLY LOCATED ON
ANY FACILITY, AND THERE HAVE BEEN NO RELEASES OF ANY HAZARDOUS SUBSTANCES FROM
ANY SUCH UNDERGROUND TANK OR RELATED PIPING AND THERE HAVE BEEN NO RELEASES OF
HAZARDOUS SUBSTANCES IN QUANTITIES EXCEEDING THE REPORTABLE QUANTITIES AS
DEFINED UNDER FEDERAL OR STATE LAW ON, UPON OR INTO ANY FACILITY OTHER THAN
THOSE AUTHORIZED BY ENVIRONMENTAL LAWS.
IN ADDITION, TO THE KNOWLEDGE OF
SELLER, THERE HAVE BEEN NO SUCH RELEASES BY PREDECESSORS OF SELLER AND NO
RELEASES IN QUANTITIES EXCEEDING THE REPORTABLE QUANTITIES AS DEFINED UNDER
FEDERAL OR STATE LAW ON, UPON OR INTO ANY REAL PROPERTY IN THE IMMEDIATE
VICINITY OF ANY OF THE FACILITIES OTHER THAN THOSE AUTHORIZED BY ENVIRONMENTAL
LAWS WHICH, THROUGH SOIL OR GROUND WATER CONTAMINATION, MAY HAVE COME TO BE
LOCATED ON ANY FACILITY.
SELLER IS NOT A PARTY, WHETHER AS A DIRECT SIGNATORY
OR AS SUCCESSOR, ASSIGN OR THIRD-PARTY BENEFICIARY, OR OTHERWISE BOUND, TO ANY
LEASE OR ANY CONTRACT UNDER WHICH SELLER IS OBLIGATED BY OR ENTITLED TO THE
BENEFITS OF, DIRECTLY OR INDIRECTLY, ANY REPRESENTATION, WARRANTY,
INDEMNIFICATION, COVENANT, RESTRICTION OR OTHER UNDERTAKING CONCERNING ANY
ENVIRONMENTAL CONDITION.
SELLER HAS NOT RELEASED ANY OTHER PERSON FROM ANY
CLAIM UNDER ANY ENVIRONMENTAL LAW OR WAIVED ANY RIGHTS CONCERNING ANY
ENVIRONMENTAL CONDITION.
3.6
CONTRACTS.
(A)
DISCLOSURE.
SECTION 3.6(A) OF THE DISCLOSURE SCHEDULE SETS FORTH
A LIST OF MATERIAL CONTRACTS AS OF THE DATE HEREOF.
SELLER AGREES TO UPDATE
SECTION 3.6(A) OF THE DISCLOSURE SCHEDULE FOR THE PURPOSE OF DELIVERING TO
PURCHASER, NO LATER THAN DECEMBER 8, 2006, AN UPDATED SECTION 3.6(A) OF THE
DISCLOSURE SCHEDULE WHICH LIST SHALL BE COMPLETE AND ACCURATE AS OF SUCH DATE.
FOR PURPOSES OF THIS AGREEMENT, "MATERIAL CONTRACTS" REFER TO THE FOLLOWING
CONTRACTS, WHICH SHALL BE INCLUDED IN THE TRANSFERRED ASSETS:
(I)
CONTRACTS NOT MADE IN THE ORDINARY COURSE OF BUSINESS, OTHER THAN
ANY CONTRACTS INCLUDED IN THE EXCLUDED ASSETS;
(II)
LICENSE AGREEMENTS OR ROYALTY AGREEMENTS INVOLVING ANY FORM OF
INTELLECTUAL PROPERTY, WHETHER SELLER IS THE LICENSOR OR LICENSEE THEREUNDER
(EXCLUDING LICENSES THAT ARE COMMONLY AVAILABLE ON STANDARD COMMERCIAL TERMS,
SUCH AS SOFTWARE "SHRINK-WRAP"