BEEN USED, DIVULGED, OR
APPROPRIATED EITHER FOR THE BENEFIT OF ANY PERSON (OTHER THAN THE COMPANY) OR TO
THE DETRIMENT OF THE COMPANY.
NO TRADE SECRET IS SUBJECT TO ANY ADVERSE CLAIM
OR HAS BEEN CHALLENGED OR THREATENED IN ANY WAY.
(H)
NO INFRINGEMENT, MISAPPROPRIATION OR OTHER
VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY HAS OCCURRED OR
RESULTED IN ANY WAY FROM THE CONDUCT OF THE BUSINESS OF PARENT OR THE COMPANY.
NO PROCEEDINGS HAVE BEEN INSTITUTED AGAINST OR NOTICES RECEIVED BY PARENT, THE
COMPANY OR MAJORITY OWNERS ALLEGING THAT PARENT'S OR THE COMPANY'S USE OF ANY
INTELLECTUAL PROPERTY ASSETS INFRINGES UPON OR OTHERWISE VIOLATES ANY RIGHTS OF
A THIRD PARTY IN OR TO SUCH INTELLECTUAL PROPERTY ASSETS.
3.23
INFORMATION TECHNOLOGY.
(A)
THE COMPANY HAS TAKEN COMMERCIALLY
REASONABLE STEPS CONSISTENT WITH INDUSTRY PRACTICE TO MAINTAIN THE MATERIAL
COMPANY IT SYSTEMS (AS DEFINED BELOW) IN GOOD WORKING CONDITION SO AS TO PERFORM
INFORMATION TECHNOLOGY OPERATIONS NECESSARY FOR THE CONDUCT OF THE BUSINESS OF
THE COMPANY AS CONDUCTED ON THE DATE HEREOF, INCLUDING AS NECESSARY FOR THE
CONDUCT OF SUCH BUSINESS AS A WHOLE, CAUSING THE MATERIAL COMPANY IT SYSTEMS TO
BE GENERALLY AVAILABLE FOR USE DURING NORMAL WORKING HOURS AND PERFORMING
REASONABLE BACK-UP PROCEDURES IN RESPECT OF THE DATA CRITICAL TO THE CONDUCT OF
ITS BUSINESS (INCLUDING SUCH DATA AND INFORMATION THAT IS STORED ON MAGNETIC OR
OPTICAL MEDIA IN THE
57
ORDINARY COURSE OF BUSINESS, CONSISTENT WITH PAST PRACTICE) AS CONDUCTED ON THE
DATE HEREOF.
(B)
FOR PURPOSES OF THIS AGREEMENT, "COMPANY IT
SYSTEMS" SHALL MEAN ANY INFORMATION TECHNOLOGY AND COMPUTER SYSTEMS (INCLUDING
COMPUTERS, SOFTWARE, PROGRAMS, DATABASES, MIDDLEWARE, SERVERS, WORKSTATIONS,
ROUTERS, HUBS, SWITCHES, DATA COMMUNICATIONS LINES, AND HARDWARE) USED IN THE
TRANSMISSION, STORAGE, ORGANIZATION, PRESENTATION, GENERATION, PROCESSING OR
ANALYSIS OF DATA IN ELECTRONIC FORMAT, WHICH TECHNOLOGY AND SYSTEMS ARE
NECESSARY TO THE CONDUCT OF THE BUSINESS OF THE COMPANY AS CONDUCTED ON THE DATE
HEREOF.
3.24
OFF BALANCE SHEET LIABILITIES.
THOSE
TRANSACTIONS, ARRANGEMENTS AND OTHER RELATIONSHIPS SPECIFICALLY IDENTIFIED IN
THE FINANCIAL STATEMENTS OR IN THE DISCLOSURE SCHEDULE, AS OF THE DATE HEREOF,
REPRESENT ALL TRANSACTIONS, ARRANGEMENTS AND OTHER RELATIONSHIPS BETWEEN AND/OR
AMONG PARENT, THE COMPANY, ANY OF THEIR AFFILIATES AND ANY SPECIAL PURPOSE OR
LIMITED PURPOSE ENTITY BENEFICIALLY OWNED BY OR FORMED AT THE DIRECTION OF
PARENT, THE COMPANY OR ANY OF THEIR AFFILIATES.
3.25
CERTAIN PAYMENTS.
SINCE JANUARY 1, 2005, NEITHER
PARENT, THE COMPANY NOR ANY DIRECTOR, OFFICER, AGENT, OR EMPLOYEE OF PARENT OR
THE COMPANY, OR TO THE KNOWLEDGE OF MAJORITY OWNERS, PARENT AND THE COMPANY, ANY
OTHER PERSON ASSOCIATED WITH OR ACTING FOR OR ON BEHALF OF THE COMPANY, HAS
DIRECTLY OR INDIRECTLY (A) MADE ANY CONTRIBUTION, GIFT, BRIBE, REBATE, PAYOFF,
INFLUENCE PAYMENT, KICKBACK, OR OTHER PAYMENT TO ANY PERSON, PRIVATE OR PUBLIC,
REGARDLESS OF FORM, WHETHER IN MONEY, PROPERTY, OR SERVICES, (I) TO OBTAIN
FAVORABLE TREATMENT IN SECURING BUSINESS, (II) TO PAY FOR FAVORABLE TREATMENT
FOR BUSINESS SECURED, (III) TO OBTAIN SPECIAL CONCESSIONS, OR FOR SPECIAL
CONCESSIONS ALREADY OBTAINED, FOR OR IN