BREACH OF, CONSTITUTE A
MATERIAL DEFAULT UNDER, CANCEL OR ACCELERATE ANY MATERIAL RIGHT OR OBLIGATION
UNDER, REQUIRE A CONSENT UNDER, CAUSE A TERMINATION UNDER, OR GIVE RISE TO A
RIGHT OF TERMINATION OF ANY INDENTURE OR LOAN OR CREDIT AGREEMENT OR ANY OTHER
MATERIAL AGREEMENT, CONTRACT, INSTRUMENT, MORTGAGE, LIEN, LEASE, PERMIT,
AUTHORIZATION, WHETHER WRITTEN OR ORAL, TO WHICH ANY SELLER ENTITY IS A PARTY OR
IS BOUND, OR RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY OF THE
ASSETS OR THE PROPERTY OF SUCH SELLER ENTITY; AND
(D)
DO NOT AND WILL NOT RESULT IN ANY LIEN ON ANY OF THE TRANSFERRED
ASSETS.
3.3
Title to Properties; Liens; Condition of Properties.
(A)
THE SELLER ENTITIES OWN, LICENSE OR LEASE ALL OF THE TRANSFERRED
ASSETS AND EACH SELLER ENTITY HAS AND WILL CONVEY TO BUYER HEREUNDER GOOD, VALID
AND MARKETABLE TITLE TO ALL OF ITS PERSONAL PROPERTY, TANGIBLE AND INTANGIBLE,
INCLUDED IN THE TRANSFERRED ASSETS. THE TANGIBLE TRANSFERRED ASSETS ARE THOSE
LISTED, AND ARE LOCATED AT THE LOCATION(S) SPECIFIED, ON SCHEDULE 1.1(A)(III).
EXCEPT AS SET FORTH ON SCHEDULE 3.3(A), NO FINANCING STATEMENT UNDER THE UNIFORM
COMMERCIAL CODE OR ANY SIMILAR LAW WITH RESPECT TO ANY OF THE TRANSFERRED ASSETS
IS ACTIVE IN ANY JURISDICTION, AND THE SELLER ENTITIES HAVE NOT SIGNED ANY SUCH
ACTIVE FINANCING STATEMENT OR ANY SECURITY AGREEMENT AUTHORIZING ANY SECURED
PARTY THEREUNDER TO FILE ANY SUCH FINANCING STATEMENT.
(B)
THE TRANSFERRED ASSETS AND DUAL USE CONTRACTS LISTED ARE IN ALL
MATERIAL RESPECTS ALL OF THE ASSETS USED OR HELD FOR USE IN THE BUSINESS AS THE
SAME HAS BEEN OPERATED PRIOR TO THE DATE HEREOF AND EXCEPT AS SET FORTH ON
SCHEDULE 3.3(B), THE TRANSFERRED ASSETS, TOGETHER WITH THE ASSETS (OTHER THAN
INTELLECTUAL PROPERTY ASSETS) TO BE MADE AVAILABLE AND SERVICES TO BE PROVIDED
TO BUYER PURSUANT TO THE ANCILLARY AGREEMENTS, CONSTITUTE ALL OF THE ASSETS
(OTHER THAN INTELLECTUAL PROPERTY ASSETS) NECESSARY FOR BUYER TO CONTINUE TO
OPERATE THE BUSINESS IN ALL MATERIAL RESPECTS AS IT HAS BEEN OPERATED PRIOR TO
THE CLOSING. EXCEPT AS SET FORTH ON SCHEDULE 3.3(B), THE TRANSFERRED ASSETS
(I) ARE IN WORKING ORDER (REASONABLE WEAR AND TEAR EXCEPTED, AND IN EACH CASE
TAKING INTO ACCOUNT AGE), (II) HAVE BEEN AND SHALL THROUGH THE CLOSING BE
MAINTAINED IN A MANNER CONSISTENT WITH THE PAST MAINTENANCE PRACTICES OF THE
SELLER ENTITIES, (III) ARE SUITABLE FOR THE MANUFACTURE AND ASSEMBLY OF PARTS IN
ACCORDANCE WITH THE ENGINEERING SPECIFICATIONS FOR PRODUCTS OF THE BUSINESS AND
(IV) CONFORM IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE LAWS.
(C)
UPON DELIVERY TO BUYER OF THE INSTRUMENTS OF TRANSFER REFERRED TO
IN SECTION 1.5 HEREOF, BUYER WILL RECEIVE GOOD, VALID AND MARKETABLE TITLE TO
ALL OF THE TRANSFERRED ASSETS, FREE AND CLEAR OF ALL LIENS OTHER THAN PERMITTED
LIENS.
17
3.4
Financial Statements; Undisclosed Liabilities.
(A)
ATTACHED HERETO AS SCHEDULE 3.4(A) ARE (I) THE STATEMENT OF NET
ASSETS ACQUIRED OF THE BUSINESS AS OF
, 200
(8) (THE
"BASE BALANCE SHEET"), AND THE STATEMENT OF REVENUES AND