AND XCEL JAPAN; AND
(III)
ALL OBLIGATIONS OF EACH OF SELLER (SOLELY
WITH RESPECT TO THE DIGITRAN BUSINESS) AND XCEL JAPAN TO THIRD PARTIES WITH
RESPECT TO INSURANCE (INCLUDING SUCH OBLIGATIONS UNDER LEASES AND SERVICE
AGREEMENTS) AND IDENTIFIES THE POLICY UNDER WHICH SUCH COVERAGE IS PROVIDED.
(C)
SECTION 3.18(C) OF THE DISCLOSURE SCHEDULE
SETS FORTH, BY YEAR, FOR THE CURRENT POLICY YEAR AND THE PRECEDING POLICY YEAR A
SUMMARY OF THE LOSS EXPERIENCE UNDER EACH POLICY.
(D)
EXCEPT AS SET FORTH ON SECTION 3.18(D) OF
THE DISCLOSURE SCHEDULE, ALL POLICIES RELATING TO THE BUSINESS TO WHICH EACH OF
SELLER AND XCEL JAPAN IS A PARTY OR THAT PROVIDE COVERAGE TO SELLER, XCEL JAPAN,
OR ANY DIRECTOR OR OFFICER OF EACH OF SELLER AND XCEL JAPAN:
(I)
ARE VALID, OUTSTANDING, AND ENFORCEABLE;
(II)
ARE ISSUED BY AN INSURER THAT IS
FINANCIALLY SOUND AND REPUTABLE;
(III)
TAKEN TOGETHER, PROVIDE ADEQUATE INSURANCE
COVERAGE FOR THE ASSETS AND THE OPERATIONS OF EACH OF SELLER AND XCEL JAPAN FOR
ALL RISKS NORMALLY INSURED AGAINST BY A PERSON CARRYING ON THE SAME BUSINESS OR
BUSINESSES AS EACH OF SELLER AND XCEL JAPAN;
(IV)
ARE SUFFICIENT FOR COMPLIANCE WITH ALL LEGAL
REQUIREMENTS AND CONTRACTS TO WHICH SELLER IS A PARTY OR BY WHICH IT IS BOUND;
AND
(V)
SOLELY WITH RESPECT TO XCEL JAPAN, WILL
CONTINUE IN FULL FORCE AND EFFECT FOLLOWING THE CONSUMMATION OF THE CONTEMPLATED
TRANSACTIONS.
(E)
NEITHER SELLER (SOLELY WITH RESPECT TO THE
DIGITRAN BUSINESS) NOR XCEL JAPAN HAS RECEIVED (I) ANY REFUSAL OF COVERAGE OR
ANY NOTICE THAT A DEFENSE WILL BE AFFORDED WITH RESERVATION OF RIGHTS, OR
(II) ANY NOTICE OF CANCELLATION OR ANY OTHER INDICATION THAT ANY INSURANCE
POLICY IS NO LONGER IN FULL FORCE OR EFFECT OR WILL NOT BE RENEWED OR THAT THE
ISSUER OF ANY POLICY IS NOT WILLING OR ABLE TO PERFORM ITS OBLIGATIONS
THEREUNDER.
(F)
EACH OF SELLER (SOLELY WITH RESPECT TO
THE DIGITRAN BUSINESS) AND XCEL JAPAN HAS PAID ALL PREMIUMS DUE, AND HAVE
OTHERWISE PERFORMED ALL OF ITS RESPECTIVE
40
OBLIGATIONS, UNDER EACH POLICY TO WHICH IT IS A PARTY OR THAT PROVIDES COVERAGE
TO IT OR A DIRECTOR THEREOF.
(G)
EACH OF SELLER (SOLELY WITH RESPECT TO THE
DIGITRAN BUSINESS) AND XCEL JAPAN HAS GIVEN NOTICE TO THE INSURER OF ALL CLAIMS
THAT MAY BE INSURED THEREBY.
3.19
ENVIRONMENTAL MATTERS.
EXCEPT AS SET FORTH IN
SECTION 3.19 OF THE DISCLOSURE SCHEDULE:
(A)
EACH OF SELLER (SOLELY WITH RESPECT TO THE
DIGITRAN BUSINESS) AND XCEL JAPAN IS, AND AT ALL TIMES HAS BEEN, IN FULL
COMPLIANCE WITH, AND HAS NOT BEEN AND IS NOT IN VIOLATION OF OR LIABLE UNDER,
ANY ENVIRONMENTAL LAW.
NEITHER SELLER (SOLELY WITH RESPECT TO THE DIGITRAN
BUSINESS) NOR XCEL JAPAN HAS ANY BASIS TO EXPECT, NOR HAS ANY OF THEM OR ANY
OTHER PERSON FOR WHOSE CONDUCT THEY ARE OR MAY BE HELD TO BE RESPONSIBLE
RECEIVED, ANY ACTUAL OR THREATENED ORDER, NOTICE, OR OTHER COMMUNICATION FROM
(I) ANY GOVERNMENTAL BODY OR PRIVATE CITIZEN ACTING IN THE PUBLIC