CONSTITUTIVE DOCUMENTS OF SELLER OR ANY SELLER
SUBSIDIARY AND MARKETING AGREEMENTS, PROPERTY LEASES AND OTHER COMMERCIAL
AGREEMENTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS; OR
(XII) OTHER CONTRACT THAT HAS AN AGGREGATE FUTURE LIABILITY TO ANY PERSON IN
EXCESS OF $250,000.
(B) ALL TRANSFERRED CONTRACTS LISTED IN SECTION 3.08(A) OF THE SELLER DISCLOSURE
LETTER (SUCH CONTRACTS, THE "BUSINESS CONTRACTS") ARE VALID, BINDING AND IN FULL
FORCE AND EFFECT IN ALL MATERIAL RESPECTS AND ARE ENFORCEABLE IN ALL MATERIAL
RESPECTS BY SELLER, IN ACCORDANCE WITH THEIR TERMS, SUBJECT, AS TO ENFORCEMENT,
TO APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION OR SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND TO GENERAL EQUITABLE PRINCIPLES.
SELLER AND THE SELLER SUBSIDIARIES HAVE PERFORMED ALL OBLIGATIONS REQUIRED TO BE
PERFORMED BY THEM TO DATE UNDER THE BUSINESS CONTRACTS IN ALL MATERIAL RESPECTS,
AND THEY ARE NOT IN BREACH OR DEFAULT THEREUNDER IN ANY MATERIAL RESPECT AND, TO
THE KNOWLEDGE OF SELLER, AS OF THE DATE OF THIS AGREEMENT, NO OTHER PARTY TO ANY
BUSINESS CONTRACT IS IN BREACH OR DEFAULT OF ITS OBLIGATIONS THEREUNDER IN ANY
MATERIAL RESPECT.
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SECTION 3.09.
Permits.
(A) SECTION 3.09 OF THE SELLER DISCLOSURE LETTER LISTS ALL MATERIAL PERMITS USED
OR HELD FOR USE PRIMARILY IN THE OPERATION OR CONDUCT OF THE BUSINESS. ALL
TRANSFERRED PERMITS ARE VALIDLY HELD BY SELLER OR A SELLER SUBSIDIARY, AND
SELLER OR A SELLER SUBSIDIARY HAS COMPLIED IN ALL MATERIAL RESPECTS WITH THE
TERMS AND CONDITIONS THEREOF. SINCE JANUARY 1, 2004, NEITHER SELLER NOR A SELLER
SUBSIDIARY HAS RECEIVED WRITTEN NOTICE OF ANY PROCEEDING RELATING TO, AND, TO
THE KNOWLEDGE OF SELLER, THERE ARE NO FACTS, CIRCUMSTANCES OR CONDITIONS THAT
WOULD REASONABLY BE EXPECTED TO RESULT IN, THE REVOCATION OR MATERIAL
MODIFICATION OF ANY SUCH TRANSFERRED PERMITS. NONE OF SUCH TRANSFERRED PERMITS
WOULD REASONABLY BE EXPECTED TO BE SUBJECT TO SUSPENSION, MATERIAL MODIFICATION,
REVOCATION OR NONRENEWAL AS A RESULT OF THE EXECUTION AND DELIVERY OF THIS
AGREEMENT OR THE CONSUMMATION OF THE ACQUISITION.
THIS SECTION 3.09 DOES NOT
RELATE TO ENVIRONMENTAL PERMITS, SUCH ITEMS BEING THE SUBJECT OF
SECTION 3.14(C).
SECTION 3.10.
Taxes.
(A) SELLER AND EACH OF THE SELLER SUBSIDIARIES HAVE TIMELY PAID ALL TAXES
IMPOSED ON, OR IN CONNECTION WITH, THE TRANSFERRED ASSETS (AND FILED ON A TIMELY
BASIS ALL TAX RETURNS REQUIRED TO BE FILED RELATING TO THE TRANSFERRED ASSETS,
WHICH TAX RETURNS WERE TRUE, COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS) THAT
ARE DUE AND PAYABLE ON OR PRIOR TO THE CLOSING DATE (EXCEPT FOR TAXES BEING
CONTESTED IN GOOD FAITH AND TRANSFER TAXES).
(B) NO MATERIAL TAX LIENS HAVE BEEN FILED AND NO MATERIAL CLAIMS ARE BEING
ASSERTED IN WRITING WITH RESPECT TO ANY TAXES DUE WITH RESPECT TO THE
TRANSFERRED ASSETS.
SECTION 3.11.
Proceedings.
Except as set forth on Section 3.11 of Seller
Disclosure Letter, there are no pending or, to the knowledge of Seller,
threatened Proceedings against Seller or any Seller Subsidiary, which arise out
of the conduct of the Business.
Section 3.11 of the Seller Disclosure Letter
lists,