such enforceability may be limited by (i) applicable
insolvency, bankruptcy, reorganization, moratorium, or other similar laws
affecting creditors' rights generally and (ii) applicable equitable principles
(whether considered in a proceeding at Law or in equity), (b) the Company is not
in material breach or default under any Material Contract, and (c) to the
Knowledge of the Company, no other party to any Material Contract is in material
breach or default thereof, other than as set forth in Section 4.18 of the
Company Disclosure Schedule.
On December 20, 2007, the Company did not enter
into any
fixed price customer Contracts of a type required to be listed in
Section 4.18(c)(ii) above that would be in violation of the covenant set forth
in Section 5.2(i)(ii).
4.19
CUSTOMERS; SUPPLIERS.
AS OF THE DATE HEREOF, THE COMPANY HAS NOT
RECEIVED ANY NOTICE THAT ANY PARTY INTENDS TO CANCEL ANY MATERIAL CONTRACT OR
MATERIALLY REDUCE THE LEVEL OF BUSINESS IT CONDUCTS WITH THE COMPANY.
4.20
BROKER FEES.
EXCEPT AS SET FORTH IN SCHEDULE 4.20 OF THE COMPANY
DISCLOSURE SCHEDULE, NEITHER THE COMPANY NOR THE SELLERS HAVE ANY LIABILITY OR
OBLIGATION TO PAY ANY FEES OR COMMISSIONS TO ANY BROKER, FINDER, OR AGENT WITH
RESPECT TO THE TRANSACTIONS FOR WHICH THE PURCHASER OR THE COMPANY (FOLLOWING
THE CLOSING) COULD BECOME LIABLE OR OBLIGATED.
4.21
DERIVATIVE AND HEDGING ACTIVITY.
SECTION 4.21 OF THE COMPANY
DISCLOSURE SCHEDULE SETS FORTH A LIST, AS OF DECEMBER 19, 2007, OF (I) ALL
OUTSTANDING DERIVATIVE TRANSACTIONS TO WHICH THE COMPANY IS A PARTY AS OF THE
DATE HEREOF, WHETHER OR NOT THE COMPANY CONTINUES TO HAVE ANY OBLIGATIONS
THEREUNDER AND (II) ALL TERMINATED DERIVATIVE TRANSACTIONS TO WHICH THE COMPANY
WAS A PARTY PRIOR TO THE DATE HEREOF, IF COMPANY HAS ANY CONTINGENT LIABILITY
THEREUNDER.
THE COMPANY HAS PROVIDED PURCHASER WITH TRUE, CORRECT AND COMPLETE
COPIES OF ALL MATERIAL DOCUMENTATION RELATING TO THE DERIVATIVE TRANSACTIONS
THAT ARE REQUIRED TO BE SET FORTH IN SECTION 4.21 OF THE COMPANY DISCLOSURE
SCHEDULE PRIOR TO THE DATE HEREOF.
THE COMPANY HAS DULY PERFORMED ALL OF ITS
OBLIGATIONS, IN ALL MATERIAL RESPECTS, UNDER ALL DERIVATIVE TRANSACTIONS TO THE
EXTENT THAT SUCH OBLIGATIONS TO PERFORM HAVE ACCRUED, AND THERE ARE NO BREACHES,
VIOLATIONS OR DEFAULTS, IN ANY MATERIAL RESPECT, BY THE COMPANY OR ALLEGATIONS
OR ASSERTIONS OF SUCH BY ANY PARTY THEREUNDER.
ALL OUTSTANDING DERIVATIVE
TRANSACTIONS ARE LEGAL, VALID AND BINDING OBLIGATIONS OF THE COMPANY AND, TO THE
KNOWLEDGE OF THE COMPANY, THE OTHER PARTIES THERETO ENFORCEABLE AGAINST THE
COMPANY AND SUCH PARTIES IN ACCORDANCE WITH THEIR TERMS (EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM,
REORGANIZATION OR OTHER SIMILAR LAWS AFFECTING THE RIGHTS OF CREDITORS GENERALLY
AND APPLICABLE GENERAL PRINCIPLES OF EQUITY (WHETHER CONSIDERED IN A PROCEEDING
AT LAW OR IN EQUITY)), AND ARE IN FULL FORCE AND EFFECT.
ON DECEMBER 20, 2007,
THE COMPANY DID NOT ENTER INTO ANY DERIVATIVE TRANSACTION OF A TYPE REQUIRED TO
BE LISTED IN SECTION 4.21(I) ABOVE THAT WOULD BE IN VIOLATION OF THE COVENANT
SET FORTH