BENEFIT OF, OR ANY
INVESTMENTS IN, ANY PERSONS EXCEPT PAYMENTS OF, AND ADVANCES UNDER, INTERCOMPANY
LOANS;
(P)
INSTITUTED OR SETTLED ANY CLAIM OR LAWSUIT INVOLVING EQUITABLE OR
INJUNCTIVE RELIEF OR THE PAYMENT BY OR ON BEHALF OF THE SELLER OF MORE THAN
$25,000 IN THE AGGREGATE;
(Q)
GRANTED ANY PERFORMANCE GUARANTEES TO THE BUSINESS' CUSTOMERS;
(R)
INSTITUTED OR PERMITTED ANY MATERIAL CHANGE IN THE CONDUCT OF THE
BUSINESS, OR ANY MATERIAL CHANGE IN ITS METHOD OF PURCHASE, SALE, LEASE,
MANAGEMENT, MARKETING, PROMOTION OR OPERATION OF THE ACQUIRED ASSETS;
(S)
DECLARED, SET ASIDE OR PAID ANY DIVIDEND OR MADE ANY SIMILAR
DISTRIBUTION, REDEEMED, PURCHASED OR OTHERWISE ACQUIRED, DIRECTLY OR INDIRECTLY,
ANY SHARES OF ITS CAPITAL STOCK (OR OTHER EQUITY SECURITIES), OR MADE ANY LOAN
OR ENTERED INTO ANY TRANSACTION WITH OR DISTRIBUTED ANY OF THE ACQUIRED ASSETS
TO ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES OR OTHER INSIDERS,
EXCEPT FOR COMPENSATION PAID IN CASH TO INSIDERS IN THE ORDINARY COURSE AND
EXCEPT PAYMENTS OF, AND ADVANCES UNDER, INTERCOMPANY LOANS;
(T)
ACQUIRED ANY OTHER BUSINESS OR ENTITY (OR ANY SIGNIFICANT PORTION
OR DIVISION THEREOF), WHETHER BY MERGER, CONSOLIDATION OR REORGANIZATION OR BY
THE PURCHASE OF ITS ASSETS OR STOCK; OR
(U)
COMMITTED TO DO ANY OF THE FOREGOING.
3.6
TITLE TO ASSETS.
THE SELLER HAS GOOD AND MARKETABLE TITLE TO, OR
A VALID LEASEHOLD INTEREST IN, ALL OF THE ACQUIRED ASSETS, TANGIBLE OR
INTANGIBLE, FREE AND CLEAR OF ALL LIENS, OTHER THAN THE PERMITTED ENCUMBRANCES.
SUBJECT TO RECEIPT OF THE THIRD-PARTY CONSENTS DESCRIBED IN SECTION 6.4, THE
SELLER HAS THE RIGHT TO CONVEY AND TRANSFER THE ACQUIRED ASSETS TO THE
PURCHASER.
AT THE CLOSING, THE SELLER WILL HAVE CONVEYED GOOD TITLE AND
INTEREST IN AND TO THE ACQUIRED ASSETS, FREE AND CLEAR OF ALL LIENS, OTHER THAN
PERMITTED ENCUMBRANCES.
3.7
SUFFICIENCY/CONDITION OF ASSETS.
EXCEPT FOR THE EXCLUDED ASSETS,
THE ACQUIRED ASSETS COMPRISE ALL OF THE ASSETS, PROPERTIES AND RIGHTS USED IN OR
RELATED TO THE BUSINESS AND NECESSARY TO PERMIT PURCHASER TO CARRY ON THE
BUSINESS FOLLOWING THE CLOSING IN SUBSTANTIALLY THE SAME MANNER AS CONDUCTED AS
OF THE DATE HEREOF.
EACH TANGIBLE ACQUIRED ASSET HAS BEEN MAINTAINED IN
ACCORDANCE WITH NORMAL INDUSTRY PRACTICE, IS IN GOOD OPERATING CONDITION AND
REPAIR (SUBJECT TO NORMAL WEAR AND TEAR) AND IS SUITABLE FOR THE PURPOSES FOR
WHICH IT PRESENTLY IS USED.
SCHEDULE 1.2(B) SETS FORTH A TRUE AND COMPLETE COPY
OF THE FIXED ASSET LEDGER OF THE SELLER AS OF FEBRUARY 28, 2007.
11
3.8
COMPLIANCE WITH LAWS.
THE SELLER AND THE CONDUCT OF THE BUSINESS
ARE AND HAVE BEEN IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH EACH APPLICABLE
LAW OF ANY GOVERNMENTAL ENTITY.
NO LEGAL PROCEEDING HAS BEEN FILED OR COMMENCED
AGAINST THE SELLER ALLEGING ANY FAILURE TO SO COMPLY AND SELLER HAS RECEIVED NO
WRITTEN NOTICE THAT IT IS IN VIOLATION OF ANY LAW.
3.9
CONTRACTS.
(A)
EXCEPT AS SET FORTH ON THE SCHEDULE 3.9(A), THE SELLER IS NOT A
PARTY TO OR BOUND BY ANY OF THE FOLLOWING ("MATERIAL CONTRACTS"),