THAT PURPORTS
TO LIMIT THE ABILITY OF SUCH OFFICER, DIRECTOR, AGENT, EMPLOYEE, CONSULTANT, OR
CONTRACTOR TO (A) ENGAGE IN OR CONTINUE ANY CONDUCT, ACTIVITY, OR PRACTICE
RELATING TO THE BUSINESS OF THE BUSINESS, OR (B) ASSIGN TO THE BUSINESS OR TO
ANY OTHER PERSON ANY RIGHTS TO ANY INVENTION, IMPROVEMENT, OR DISCOVERY.
(C)
EACH CONTRACT IDENTIFIED OR REQUIRED TO BE
IDENTIFIED IN SECTION 3.17(A) OF THE DISCLOSURE SCHEDULE IS IN FULL FORCE AND
EFFECT AND IS VALID AND ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
(D)
(I)
EACH
OF SELLER AND XCEL JAPAN IS, AND AT ALL TIMES SINCE JANUARY 1, 2004 HAS BEEN, IN
FULL COMPLIANCE WITH ALL APPLICABLE TERMS AND REQUIREMENTS OF EACH CONTRACT
RELATING TO THE BUSINESS UNDER WHICH IT HAS OR HAD ANY OBLIGATION OR LIABILITY
OR BY WHICH IT OR ANY OF THE ASSETS OWNED OR USED BY IT IS OR WAS BOUND;
(II)
TO THE KNOWLEDGE OF SELLER, EACH OTHER
PERSON THAT HAS OR HAD ANY OBLIGATION OR LIABILITY UNDER ANY CONTRACT RELATING
TO THE BUSINESS UNDER WHICH AND SELLER OR XCEL JAPAN HAS OR HAD ANY RIGHTS IS,
AND AT ALL TIMES SINCE JANUARY 1, 2004 HAS BEEN, IN FULL COMPLIANCE WITH ALL
APPLICABLE TERMS AND REQUIREMENTS OF SUCH CONTRACT;
(III)
NO EVENT HAS OCCURRED OR CIRCUMSTANCE EXISTS
THAT (WITH OR WITHOUT NOTICE OR LAPSE OF TIME) MAY CONTRAVENE, CONFLICT WITH, OR
RESULT IN A VIOLATION OR BREACH OF, OR GIVE SELLER OR XCEL JAPAN OR, TO THE
KNOWLEDGE OF SELLER, OTHER PERSON, THE RIGHT TO DECLARE A DEFAULT OR EXERCISE
ANY REMEDY UNDER, OR TO ACCELERATE THE MATURITY OR PERFORMANCE OF, OR TO CANCEL,
TERMINATE, OR MODIFY, ANY APPLICABLE CONTRACT; AND
(IV)
NEITHER SELLER NOR XCEL JAPAN HAS GIVEN TO OR
RECEIVED FROM ANY OTHER PERSON, AT ANY TIME SINCE JANUARY 1, 2004, ANY NOTICE OR
OTHER COMMUNICATION (WHETHER ORAL OR WRITTEN) REGARDING ANY ACTUAL, ALLEGED,
POSSIBLE, OR POTENTIAL VIOLATION OR BREACH OF, OR DEFAULT UNDER, ANY CONTRACT.
(E)
THERE ARE NO RENEGOTIATIONS OF, ATTEMPTS TO
RENEGOTIATE, OR OUTSTANDING RIGHTS TO RENEGOTIATE ANY MATERIAL AMOUNTS PAID OR
PAYABLE TO SELLER OR XCEL JAPAN UNDER CURRENT OR COMPLETED CONTRACTS WITH ANY
PERSON AND, TO THE KNOWLEDGE OF SELLER, NO SUCH PERSON HAS MADE WRITTEN DEMAND
FOR SUCH RENEGOTIATION.
3.18
INSURANCE.
(A)
EACH OF SELLER AND XCEL JAPAN HAS MADE
AVAILABLE TO BUYERS TRUE AND COMPLETE COPIES OF ALL POLICIES OF INSURANCE
RELATING TO THE BUSINESS TO WHICH IT IS A PARTY OR UNDER WHICH IT, OR ANY OF ITS
DIRECTORS, IS OR HAS BEEN COVERED AT ANY TIME WITHIN THE ONE (1) YEAR PRECEDING
THE DATE OF THIS AGREEMENT.
39
(B)
SECTION 3.18(B) OF THE DISCLOSURE SCHEDULE
DESCRIBES:
(I)
ANY SELF-INSURANCE ARRANGEMENT BY OR
AFFECTING EACH OF SELLER (SOLELY WITH RESPECT TO THE DIGITRAN BUSINESS) AND XCEL
JAPAN, INCLUDING ANY RESERVES ESTABLISHED THEREUNDER;
(II)
ANY CONTRACT OR ARRANGEMENT, OTHER THAN A
POLICY OF INSURANCE, FOR THE TRANSFER OR SHARING OF ANY RISK BY EACH OF SELLER
(SOLELY WITH RESPECT TO THE DIGITRAN BUSINESS)