WITH RESPECT TO THE MATTERS REFERRED
TO IN SECTION 3.13, NONE OF THE SOLD COMPANIES, OR THE SUBSIDIARIES IS A PARTY
TO OR BOUND BY, NOR ARE ANY OF THEIR ASSETS AFFECTED BY ANY:
(I)
AGREEMENT OR INDENTURE RELATING TO THE
BORROWING OF MONEY OR TO THE MORTGAGING OR PLEDGING OF ANY OF ITS ASSETS IN
EXCESS OF $100,000;
(II)
AGREEMENT WITH RESPECT TO THE LENDING OR
INVESTING OF FUNDS IN EXCESS OF $100,000;
(III)
GUARANTY OF ANY OBLIGATION FOR BORROWED
MONEY OR OTHERWISE IN EXCESS OF $100,000, OTHER THAN ENDORSEMENTS MADE FOR
COLLECTION IN THE ORDINARY COURSE OF BUSINESS;
(IV)
OUTSTANDING LETTERS OF CREDIT, GUARANTEES,
PAYMENT, PERFORMANCE, BID OR COMPLETION BONDS, SWAPS, DERIVATIVES, SURETY OR
INDEMNIFICATION AGREEMENTS OR OTHER REIMBURSEMENT OBLIGATIONS, EXCEPT FOR
IMMATERIAL INDEMNITY AND REIMBURSEMENT OBLIGATIONS ENTERED INTO IN THE ORDINARY
COURSE OF BUSINESS OR FOR INDEMNITIES OR OTHER REIMBURSEMENT OBLIGATIONS
INCLUDED IN OTHER MATERIAL CONTRACTS;
(V)
AGENCY, REPRESENTATION, DISTRIBUTION OR
FRANCHISE AGREEMENTS THAT CANNOT BE CANCELED OR TERMINATED BY THE SOLD COMPANIES
OR SUBSIDIARIES WHICH ARE A PARTY THERETO WITHOUT PAYMENT OR PENALTY UPON NOTICE
OF SIXTY (60) DAYS OR LESS;
23
(VI)
SUPPLY OR SALES AGREEMENT PURSUANT TO WHICH
ANY OF THE SOLD COMPANIES OR THE SUBSIDIARIES MAKES PURCHASES AND SALES OF
INVENTORY THAT CANNOT BE CANCELED OR TERMINATED WITHOUT PAYMENT OR PENALTY UPON
NOTICE OF SIXTY (60) DAYS OR LESS;
(VII)
CONTRACT WHICH PROHIBITS OR RESTRICTS ANY OF THE
SOLD COMPANIES OR SUBSIDIARIES FROM ENGAGING IN THE BUSINESS CURRENTLY CONDUCTED
BY IT AFTER THE DATE OF THIS AGREEMENT IN ANY GEOGRAPHIC REGION OR WITH ANY
PERSON;
(VIII)
CONTRACT, UNDERSTANDING OR OTHER AGREEMENT FOR
TRANSPORTATION SERVICES TO BE PROVIDED TO ANY OF THE SOLD COMPANIES OR
SUBSIDIARIES THAT EXTENDS BEYOND THREE MONTHS OR REQUIRES PAYMENTS IN EXCESS OF
$250,000; OR
(IX)
ANY OTHER CONTRACT NOT DESCRIBED ABOVE
(INCLUDING ANY LEASE) WHICH INVOLVES THE PAYMENT OF $250,000 OR MORE IN ANY
12-MONTH PERIOD.
(B)
EXCEPT AS SET FORTH ON SCHEDULE 3.8(B), (I)
EACH CONTRACT OR COMMITMENT LISTED ON SCHEDULE 3.8(A) WHICH PROVIDES FOR PAYMENT
TO OR BY THE COUNTERPARTY THEREUNDER IN EXCESS OF $1,000,000 (THE "MATERIAL
CONTRACTS") IS VALID, BINDING AND ENFORCEABLE AGAINST THE SOLD COMPANY OR
SUBSIDIARY WHICH IS A PARTY TO SUCH MATERIAL CONTRACT AND, TO THE KNOWLEDGE OF
THE SELLER, AGAINST EACH OTHER PARTY THERETO; (II) EACH OF THE SOLD COMPANIES
AND THE SUBSIDIARIES HAS PERFORMED ALL MATERIAL OBLIGATIONS UNDER THE MATERIAL
CONTRACTS REQUIRED TO BE PERFORMED BY IT (AND THERE HAS OCCURRED NO EVENT OR
CIRCUMSTANCE WHICH, WITH THE GIVING OF NOTICE, THE PASSAGE OF TIME, OR BOTH,
WOULD CONSTITUTE A BREACH OR DEFAULT BY ANY SUCH PERSON THEREUNDER OR AN EVENT
OF ACCELERATION OR TERMINATION) AND NONE OF THE SOLD COMPANIES OR SUBSIDIARIES
HAS RECEIVED ANY WRITTEN NOTICE OF ANY CLAIM OF BREACH OR DEFAULT OR ANY
ACCELERATION OR TERMINATION UNDER ANY MATERIAL CONTRACT; AND (III) THE SELLER
HAS NO KNOWLEDGE OF ANY ACCELERATION, TERMINATION, BREACH OR ANTICIPATED BREACH
OF ANY MATERIAL TERM OR CONDITION BY ANY OTHER PARTY TO