of fees in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the Ancillary Agreements and the transactions contemplated hereby
and thereby.
3.12
CONTRACTS.
(A)
SCHEDULE 3.12(A) HERETO SETS FORTH A LIST OF ALL CONTRACTS TO
WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR BY WHICH IT IS BOUND,
EXCEPT: (A) ANY CONTRACT THAT DOES NOT REQUIRE PAYMENT BY ANY PARTY THERETO OF
MORE THAN $15,000 IN ANY SINGLE PAYMENT OR SERIES OF RELATED PAYMENTS; (B) ANY
CONTRACT THAT IS TERMINABLE BY THE COMPANY OR SUCH SUBSIDIARY UPON THIRTY (30)
DAYS' NOTICE OR LESS WITHOUT THE PAYMENT OF ANY MATERIAL PENALTY OR MATERIAL
TERMINATION FEE; (C) ANY CONTRACT ENTERED INTO PRIOR TO CLOSING WITH THE BUYER
OR WITH ANY OTHER PERSON IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED BY THIS
AGREEMENT; (D) PURCHASE AND SALES ORDERS FOR GOODS AND SERVICES ENTERED INTO IN
THE ORDINARY COURSE OF BUSINESS (OTHER THAN CONTRACTS OR OTHER ARRANGEMENTS
ASSOCIATED WITH LIMITING COMMODITY PRICE RISK WHICH SHALL BE SET FORTH IN
SCHEDULE 3.12(A)); AND (E) ANY CONTRACT SPECIFICALLY LISTED IN ANY OTHER
SCHEDULE TO THIS AGREEMENT.
(B)
SCHEDULE 3.12(B) SETS FORTH A LIST OF ALL CONTRACTS BETWEEN THE
COMPANY OR ANY OF ITS SUBSIDIARIES AND ANY SELLER OR ANY SELLER'S AFFILIATES.
(C)
EXCEPT AS SET FORTH IN SCHEDULE 3.12(C) OR IN ANY OTHER SCHEDULE
HERETO, EACH OF THE LEASES, CONTRACTS AND OTHER AGREEMENTS LISTED IN SCHEDULES
3.10(A), 3.10(C), 3.12(A), 3.12(B), 3.20(B), 3.21(B), 3.22(A), 3.22(B) AND
3.22(C) (COLLECTIVELY, THE "COMPANY AGREEMENTS") CONSTITUTES A VALID AND BINDING
OBLIGATION OF THE COMPANY OR ITS SUBSIDIARY THAT IS A PARTY THERETO AND IS IN
FULL FORCE AND EFFECT AND (EXCEPT FOR THOSE COMPANY AGREEMENTS WHICH SHALL BE
TERMINATED ON THE CLOSING DATE IN ACCORDANCE WITH THE PROVISIONS HEREOF) WILL
CONTINUE IN FULL FORCE AND EFFECT AFTER THE CLOSING, IN EACH CASE WITHOUT
BREACHING THE TERMS THEREOF OR RESULTING IN THE FORFEITURE OR IMPAIRMENT OF ANY
RIGHTS THEREUNDER AND WITHOUT THE CONSENT, APPROVAL OR ACT OF, OR THE MAKING OF
ANY FILING WITH, ANY OTHER PARTY.
EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS
FULFILLED AND PERFORMED ITS MATERIAL OBLIGATIONS UNDER EACH OF THE COMPANY
AGREEMENTS, AND NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES IS IN, OR TO THE
SELLERS' AND THE COMPANY'S KNOWLEDGE ALLEGED TO BE IN, BREACH OR DEFAULT UNDER,
NOR IS THERE OR TO THE SELLERS' AND THE COMPANY'S KNOWLEDGE IS THERE ALLEGED TO
BE ANY BASIS FOR TERMINATION OF, ANY OF THE COMPANY AGREEMENTS AND TO THE
SELLERS' AND THE COMPANY'S KNOWLEDGE NO OTHER PARTY TO ANY OF THE COMPANY
AGREEMENTS HAS BREACHED OR DEFAULTED THEREUNDER, AND NO EVENT HAS OCCURRED AND
NO CONDITION OR STATE OF FACTS EXISTS WHICH, WITH THE PASSAGE OF TIME OR THE
GIVING OF NOTICE OR BOTH, WOULD CONSTITUTE SUCH A DEFAULT OR BREACH BY THE
COMPANY, ANY OF ITS SUBSIDIARIES OR, TO THE SELLERS' AND THE COMPANY'S
KNOWLEDGE, BY ANY SUCH OTHER PARTY.
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES IS CURRENTLY