UNION OR REPRESENTATIVE THEREOF TO ORGANIZE
ANY EMPLOYEES OF THE BUSINESS, OR ANY LOCKOUTS, STRIKES, SLOWDOWNS, WORK
STOPPAGES OR THREATS THEREOF BY OR WITH RESPECT TO SUCH EMPLOYEES;
(J)
EMPLOYEE TERMINATIONS (OTHER THAN FOR POOR PERFORMANCE OR FOR
CAUSE) AND/OR LAYOFFS, AND SELLER HAS PRESERVED INTACT AND KEPT AVAILABLE THE
SERVICES OF PRESENT EMPLOYEES, IN EACH CASE IN ACCORDANCE WITH PAST PRACTICE,
(K)
CAPITAL EXPENDITURE, OR COMMITMENT FOR A CAPITAL EXPENDITURE, FOR
ADDITIONS OR IMPROVEMENTS TO PROPERTY, PLANT AND EQUIPMENT IN AN AMOUNT GREATER
THAN $10,000;
(L)
ACTION WHICH, IF IT HAD BEEN TAKEN OR OCCURRED AFTER THE
EXECUTION OF THIS AGREEMENT, WOULD HAVE REQUIRED THE CONSENT OF BUYER PURSUANT
TO THIS AGREEMENT; OR
(M)
AGREEMENT, UNDERTAKING OR COMMITMENT TO DO ANY OF THE FOREGOING.
3.07
PERSONAL PROPERTY.
(A)
SELLER HAS GOOD AND MARKETABLE TITLE TO, OR IN THE CASE OF LEASED
PERSONAL PROPERTY HAS VALID LEASEHOLD INTERESTS IN, ALL PERSONAL PROPERTY
(INCLUDING MACHINERY AND EQUIPMENT, INVENTORY, AND FURNITURE) (WHETHER TANGIBLE
OR INTANGIBLE) USED IN THE BUSINESS (THE "PERSONAL PROPERTY"). ALL OF SUCH
PERSONAL PROPERTY IS LISTED ON SCHEDULE 3.07. NONE OF SUCH PERSONAL PROPERTY IS
SUBJECT TO ANY LIENS, OTHER THAN:
15
(I)
LIENS DISCLOSED ON THE BALANCE SHEET;
(II)
PERMITTED LIENS; OR
(III)
LIENS THAT DO NOT MATERIALLY DETRACT FROM THE VALUE OF THE
PERSONAL PROPERTY AS NOW USED, OR MATERIALLY INTERFERE WITH ANY PRESENT OR
INTENDED USE OF THE PERSONAL PROPERTY.
(B)
THE PERSONAL PROPERTY HAS NO MATERIAL DEFECTS, IS IN GOOD
OPERATING CONDITION AND REPAIR (ORDINARY WEAR AND TEAR EXCEPTED), AND IS
GENERALLY ADEQUATE FOR THE USES TO WHICH IT IS BEING PUT.
3.08
SUFFICIENCY OF PURCHASED ASSETS. AS OF THE DATE OF THIS AGREEMENT,
THE PURCHASED ASSETS CONSTITUTE, AND ON THE CLOSING DATE WILL CONSTITUTE, ALL OF
THE ASSETS OR PROPERTY USED OR HELD FOR USE IN THE BUSINESS AS OF EACH SUCH DATE
EXCEPT AS SET FORTH ON SCHEDULE 3.08. ON THE CLOSING DATE, THE PURCHASED ASSETS
WILL BE GENERALLY ADEQUATE TO CONDUCT THE BUSINESS AS CURRENTLY CONDUCTED EXCEPT
AS SET FORTH ON SCHEDULE 3.08.
3.09
TITLE TO PURCHASED ASSETS. UPON CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY, BUYER WILL HAVE ACQUIRED GOOD AND MARKETABLE TITLE IN AND
TO, OR A VALID LEASEHOLD INTEREST IN, EACH OF THE PURCHASED ASSETS, FREE AND
CLEAR OF ALL LIENS, EXCEPT FOR:
(A)
PERMITTED LIENS; OR
(B)
LIENS THAT DO NOT MATERIALLY DETRACT FROM THE VALUE OF SUCH
PURCHASED ASSET AS NOW USED, OR MATERIALLY INTERFERE WITH ANY PRESENT OR
INTENDED USE OF SUCH PURCHASED ASSET.
3.10
LITIGATION. THERE IS NO CLAIM, ACTION, SUIT, INVESTIGATION OR
PROCEEDING PENDING AGAINST, OR TO THE SELLER'S KNOWLEDGE, THREATENED AGAINST OR
AFFECTING, THE BUSINESS OR ANY PURCHASED ASSET, OR THE TRANSACTIONS CONTEMPLATED
HEREBY BEFORE ANY COURT OR ARBITRATOR OR ANY GOVERNMENTAL BODY, AGENCY, OFFICIAL
OR AUTHORITY.
3.11
MATERIAL CONTRACTS.
(A)
EXCEPT FOR THE CONTRACTS DISCLOSED IN SCHEDULE 3.11 (AND
REFERENCED TO THE APPLICABLE SUBSECTION BELOW), AS OF THE DATE OF THIS
AGREEMENT, AND, IN EACH CASE, WITH RESPECT TO, OR RELATION TO