ORDINARY COURSE OF BUSINESS, THE COMPANY HAS NOT SOLD, LEASED, LICENSED,
TRANSFERRED OR ASSIGNED ANY OF ITS ASSETS.
THE COMPANY HAS NOT TAKEN ANY STEPS
TO SEEK PROTECTION PURSUANT TO ANY BANKRUPTCY LAW NOR DOES THE COMPANY HAVE ANY
KNOWLEDGE OR REASON TO BELIEVE THAT ITS CREDITORS INTEND TO INITIATE INVOLUNTARY
BANKRUPTCY PROCEEDINGS OR ANY ACTUAL KNOWLEDGE OF ANY FACT WHICH WOULD
REASONABLY LEAD A CREDITOR TO DO SO.
THE COMPANY IS NOT AS OF THE DATE HEREOF,
AND AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED HEREBY TO OCCUR AT THE
APPLICABLE CLOSING, WILL NOT BE INSOLVENT (AS DEFINED BELOW).
FOR PURPOSES OF
THIS AGREEMENT, THE TERM "AFFILIATE" MEANS ANY PERSON THAT, DIRECTLY OR
INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS OR IS CONTROLLED BY OR
IS UNDER COMMON CONTROL WITH A PERSON, AS SUCH TERMS ARE USED IN AND CONSTRUED
UNDER RULE 144 PROMULGATED UNDER THE SECURITIES ACT. FOR PURPOSES OF THIS
AGREEMENT, THE TERM "INSOLVENT" MEANS (I) THE PRESENT FAIR SALEABLE VALUE OF THE
COMPANY'S ASSETS IS LESS THAN THE AMOUNT REQUIRED TO PAY THE COMPANY'S TOTAL
INDEBTEDNESS (AS DEFINED IN SECTION 2.23 BELOW), (II) THE COMPANY IS UNABLE TO
PAY ITS DEBTS AND LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH
DEBTS
6
AND LIABILITIES BECOME ABSOLUTE AND MATURED, OR (III) THE COMPANY INTENDS TO
INCUR OR BELIEVES THAT IT WILL INCUR DEBTS THAT WOULD BE BEYOND ITS ABILITY TO
PAY AS SUCH DEBTS MATURE.
2.8
ABSENCE OF LITIGATION.
EXCEPT AS DISCLOSED
IN THE SEC REPORTS, THERE IS NO ACTION, SUIT, CLAIM, OR PROCEEDING, OR, TO THE
COMPANY'S KNOWLEDGE, INQUIRY OR INVESTIGATION, BEFORE OR BY ANY COURT, PUBLIC
BOARD, GOVERNMENT AGENCY, SELF-REGULATORY ORGANIZATION OR BODY PENDING OR, TO
THE KNOWLEDGE OF THE COMPANY, THREATENED AGAINST OR AFFECTING THE COMPANY OR ANY
OF ITS SUBSIDIARIES THAT COULD, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A
MATERIAL ADVERSE EFFECT.
2.9
COMPLIANCE. EXCEPT AS DESCRIBED IN SCHEDULE
2.9 HERETO, NEITHER THE COMPANY NOR ANY SUBSIDIARY, EXCEPT IN EACH CASE AS WOULD
NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE OR RESULT
IN A MATERIAL ADVERSE EFFECT, (I) IS IN DEFAULT UNDER OR IN VIOLATION OF (AND NO
EVENT HAS OCCURRED THAT HAS NOT BEEN WAIVED THAT, WITH NOTICE OR LAPSE OF TIME
OR BOTH, WOULD RESULT IN A DEFAULT BY THE COMPANY OR ANY SUBSIDIARY UNDER), NOR
HAS THE COMPANY OR ANY SUBSIDIARY RECEIVED WRITTEN NOTICE OF A CLAIM THAT IT IS
IN DEFAULT UNDER OR THAT IT IS IN VIOLATION OF, ANY INDENTURE, LOAN OR CREDIT
AGREEMENT OR ANY OTHER AGREEMENT OR INSTRUMENT TO WHICH IT IS A PARTY OR BY
WHICH IT OR ANY OF ITS PROPERTIES IS BOUND (WHETHER OR NOT SUCH DEFAULT OR
VIOLATION HAS BEEN WAIVED), (II) IS IN VIOLATION OF ANY ORDER OF ANY COURT,
ARBITRATOR OR GOVERNMENTAL BODY, OR (III) IS OR HAS BEEN IN VIOLATION OF ANY
STATUTE, RULE OR REGULATION OF ANY GOVERNMENTAL AUTHORITY.
2.10
TITLE TO ASSETS.
THE COMPANY AND THE
SUBSIDIARIES HAVE GOOD AND MARKETABLE TITLE TO