OF THE TRADE DEBTORS OF THE SELLER.
AT THE
CLOSING AND DURING THE POST-CLOSING ADJUSTMENT, THE SELLER SHALL PROVIDE THE
PURCHASER WITH AN UPDATED SCHEDULE OF ALL ACCOUNTS RECEIVABLE INCLUDED IN THE
ACQUIRED ASSETS.
9
3.5
EVENTS SUBSEQUENT TO THE FINANCIAL STATEMENT DATE.
EXCEPT AS SET
FORTH IN SCHEDULE 3.5, SINCE THE FINANCIAL STATEMENT DATE, THE SELLER HAS
CONDUCTED THE BUSINESS ONLY IN THE ORDINARY COURSE AND, SINCE SUCH DATE;
(A)
THERE HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE NOT DISCLOSED IN
WRITING TO THE PURCHASER NOR HAS THERE OCCURRED ANY UNDISCLOSED EVENT OR
DEVELOPMENT WHICH, INDIVIDUALLY OR IN THE AGGREGATE, COULD REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE CHANGE AND
(B)
THE SELLER HAS NOT TAKEN, OR AGREED TO TAKE, ANY OF THE ACTIONS
SET FORTH IN SECTION 5.5;
(C)
SUBJECTED ANY OF THE ACQUIRED ASSETS TO ANY LIEN;
(D)
ISSUED, SOLD OR TRANSFERRED ANY NOTES, BONDS OR OTHER DEBT
SECURITIES OR ANY EQUITY SECURITIES, SECURITIES CONVERTIBLE, EXCHANGEABLE OR
EXERCISABLE INTO EQUITY SECURITIES, OR WARRANTS, OPTIONS OR OTHER RIGHTS TO
ACQUIRE EQUITY SECURITIES, OF THE SELLER;
(E)
BORROWED ANY AMOUNT OR INCURRED OR BECOME SUBJECT TO ANY
INDEBTEDNESS OR OTHER LIABILITIES, EXCEPT TRADE PAYABLES AND ACCRUED LIABILITIES
INCURRED IN THE ORDINARY COURSE;
(F)
SOLD, LEASED, LICENSED (AS LICENSOR), ASSIGNED, DISPOSED OF OR
TRANSFERRED (INCLUDING TRANSFERS TO ANY AFFILIATES OF THE SELLER) ANY OF THE
ACQUIRED ASSETS (WHETHER TANGIBLE OR INTANGIBLE), EXCEPT FOR SALES OF INVENTORY
IN THE ORDINARY COURSE OF BUSINESS AND SALES OF OTHER ASSETS NOT IN EXCESS OF
$25,000 IN THE AGGREGATE AND OTHER THAN LICENSES GRANTED TO CUSTOMERS IN THE
ORDINARY COURSE;
(G)
DISCLOSED ANY PROPRIETARY OR CONFIDENTIAL INFORMATION TO ANY
PERSON THAT IS NOT SUBJECT TO A CONFIDENTIALITY AGREEMENT THAT LIMITS USE OR
DISCLOSURE OF SUCH INFORMATION SOLELY FOR THE RECIPIENT'S OWN USE FOR THE
PURPOSES OF THE AGREEMENT;
(H)
SUFFERED ANY EXTRAORDINARY LOSSES OR WAIVED ANY RIGHTS OF MATERIAL
VALUE, WHETHER OR NOT IN THE ORDINARY COURSE;
(I)
SUFFERED ANY THEFT, DAMAGE, DESTRUCTION OR CASUALTY LOSS IN
EXCESS OF $50,000, TO THE ACQUIRED ASSETS, WHETHER OR NOT COVERED BY INSURANCE;
(J)
ENTERED INTO, AMENDED, ACCELERATED OR TERMINATED ANY MATERIAL
CONTRACT OR TAKEN ANY OTHER ACTION OR ENTERED INTO ANY OTHER TRANSACTION
INVOLVING MORE THAN $50,000 OR OTHERWISE OUTSIDE THE ORDINARY COURSE, OR ENTERED
INTO ANY TRANSACTION WITH ANY INSIDER;
(K)
MADE OR GRANTED ANY BONUS OR INCREASE IN THE COMPENSATION OR
BENEFITS OF ANY EMPLOYEE OF THE SELLER OR (II) ENTERED INTO, AMENDED, MODIFIED
OR TERMINATED ANY EMPLOYEE BENEFIT PLAN;
(L)
CONDUCTED THE BUSINESS' BILLING AND COLLECTION OF RECEIVABLES AND
INVENTORY PURCHASES OTHER THAN IN THE ORDINARY COURSE OR CHANGED ITS PRICING
STRUCTURE;
10
(M)
MADE ANY CAPITAL EXPENDITURES OR COMMITMENTS THEREFOR (OTHER THAN
IN THE ORDINARY COURSE AND IN AMOUNTS SUFFICIENT TO SUPPORT ONGOING BUSINESS
OPERATIONS);
(N)
DELAYED OR POSTPONED THE REPAIR AND MAINTENANCE OF ITS PROPERTIES
OR THE PAYMENT OF ACCOUNTS PAYABLE, ACCRUED LIABILITIES AND OTHER OBLIGATIONS
AND LIABILITIES;
(O)
MADE LOANS OR ADVANCES TO, GUARANTEES FOR THE