Common use of Title and Condition of Assets Clause in Contracts

Title and Condition of Assets. The Shares owned by Seller and Assets owned ----------------------------- by Corporation to be Sold are free and clear of Liens, other than Permitted Encumbrances, or Liens which will be released or discharged at or prior to the Effective Time of Closing. The tangible Assets are in good operating condition and repair, subject to ordinary wear and tear, and have been maintained in accordance with standard industry practice, are capable of being used in the Business as presently being conducted without present need for repair or replacement except in the ordinary course of the Business, conform in all material ------ respects with all applicable legal requirements known to Seller and Corporation to be Sold, and in the aggregate provide the capacity to enable Corporation to be Sold to engage in commercial operation on a continuous basis (subject to normal maintenance and repair outages in the ordinary course). Since the date of the Interim Balance Sheet, Corporation to be Sold has not sold, transferred, leased, distributed or otherwise disposed of any of its assets, or agreed to do so except for sales of products and services in the ------ ordinary course of business or the disposition of immaterial assets in the ordinary course of business or which in the reasonable judgment of management are not necessary or advisable to the efficient operations of Seller and Corporation to be Sold. All items of raw materials, work-in-process and finished goods included in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be Sold, all items of finished goods are of good standard and merchantable quality, and none of the items is obsolete or defective, except in each case for items which have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Balance Sheet.

Title and Condition of Assets. The Shares Seller has good and indefeasible title to the Owned Property and tangible and intangible personal property owned by Seller and Assets owned ----------------------------- by Corporation to be Sold are it that comprise the Assets, free and clear of Liens, other than than: (1) Permitted Encumbrances, or or (2) Liens which will be released or discharged at or prior to the Effective Time of Closing. The To the knowledge of Seller, the tangible Assets are in good operating condition and repair, subject to ordinary wear and tear, and have been maintained in accordance with standard industry practice, are capable of being used in the Business as presently being conducted without present need for repair or replacement except in the ordinary course of the Business, conform in all material ------ respects with all applicable legal requirements known to Seller and Corporation to be Sold, and in the aggregate provide the capacity to enable Corporation to be Sold to engage in commercial operation on a continuous basis (subject to normal maintenance and repair outages in the ordinary course). Since the date of the Interim December Balance Sheet, Corporation to be Sold Seller has not sold, transferred, leased, distributed or otherwise disposed of any of its assets, or agreed to do so except for sales of products Products and services in the ------ ordinary course of business or the disposition of immaterial assets in the ordinary course of business or which in the reasonable judgment of management are not necessary or advisable to the efficient operations of Seller. All real and tangible personal property held by Seller under the Scheduled Leases is held under valid and Corporation binding lease agreements in full force and effect. Seller is not in material default, and to Seller's knowledge no notice of alleged material default has been received by Seller, under any such Scheduled Leases and, to the knowledge of Seller, no lessor is in material default or alleged to be Soldin material default thereunder. All items The Assets constitute all material assets and properties, real, personal, tangible and intangible, that are necessary for the continued conduct of raw materialsthe Business as presently being conducted. Appendix 2.1(B)(12) to the Seller's Disclosure Letter contains a true and correct list of the names of each bank, work-in-process savings and finished goods included loan or other financial institution in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be Soldwhich Seller or subsidiaries has an account, all items of finished goods are of good standard including cash contribution accounts, safe deposit boxes and merchantable qualitylock box arrangements, and none the names of the items is obsolete all Persons authorized to draw thereon or defective, except in each case for items which to have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Balance Sheetaccess thereto.

Title and Condition of Assets. 3.9.1 The Shares owned by Purchased Assets and the Excluded Assets constitute, and on the Closing Date will constitute, all of the assets and properties used or held for use in the conduct of the Business, and the Purchased Assets are, and on the Closing Date will be, in good repair and adequate to conduct the Business as currently conducted (ordinary wear and tear excepted). Seller has good, valid and Assets owned ----------------------------- by Corporation to be Sold are marketable title to, or a valid leasehold interest in, the Purchased Assets, whether real, personal or mixed, tangible or intangible, free and clear of all Liens, except (a) Liens disclosed on the Balance Sheet, (b) the Permitted Liens, and (c) those Liens disclosed on SCHEDULE 3.9 which have terminated or will be released at Closing. The Purchased Assets include all of the assets and properties of the Business that are reflected on the Balance Sheet, except for the Excluded Assets and any of the Purchased Assets that may have been consumed or disposed of in the ordinary course of the Business consistent with past practices since the Balance Sheet Date or as permitted by this Agreement. At the Closing, Seller shall have sold, conveyed, transferred and assigned to Buyer, and Buyer shall have acquired, good and marketable title to, or a valid leasehold interest in, the Purchased Assets free and clear of all of Liens, other than Permitted EncumbrancesLiens. 3.9.2 Except as set forth on ANNEX 3.11D, SCHEDULE 2. 1.1 describes all leases of real property (in each case together with all buildings, fixtures and improvements erected thereon and easements and other rights appurtenant thereto) currently used in the conduct of the Business by the Seller (the "REAL PROPERTY"), specifying in the case of leases or Liens which will be released subleases, the name of the lessor or discharged at sublessor. The Real Property includes all real property, and only such real property, as currently used in connection with the conduct of the Business. 3.9.3 Except as set forth on SCHEDULE 2.2.7, SCHEDULE 2.1.2 describes all personal property used or prior useable in connection with the conduct of the Business, including all machinery, equipment, furniture, vehicles, storage tanks, spare and replacement parts, fuel and other trade fixtures and fixed assets (the "PERSONAL PROPERTY"), specifying in the case of the Assumed Leases, the name of the lessor or sublessor. The Personal Property includes all personal property, and only such personal property, as is used or held for use in connection with the conduct of the Business. 3.9.4 All leases of Real Property or Personal Property included in the Assumed Leases are in good standing and are valid, binding and enforceable against Sellers in accordance with their respective terms, and there does not exist under any such lease of Real Property or Personal Property any material default by Seller or any event that, with notice or lapse of time or both, would constitute a material default by Seller. To the knowledge of Sellers and Principal, no other party to the Effective Time Assumed Leases is in material default and no event has occurred that, with notice or lapse of Closing. time or both, would constitute a material default by such party. 3.9.5 The tangible buildings, structures and equipment included in the Purchased Assets have no material defects, are in good operating condition and repairrepair and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age, subject to length of use, and ordinary wear and tear, and have been maintained in accordance with standard industry practice), are capable of being used suitable for their present uses and, in the case of buildings and other structures, such buildings and other structures (including without limitation, the roofs) are structurally sound. 3.9.6 No violation of any law, regulation or ordinance (including, without limitation, laws, regulations or ordinances relating to zoning, environmental, city planning or similar matters) relating to the Business as presently being conducted without present need for repair or replacement except in the ordinary course any Purchased Asset currently exists. There are no developments affecting any of the BusinessPurchased Assets pending or, conform in all material ------ respects to the knowledge of Seller, threatened, which might materially detract from the value of such Purchased Assets, materially interfere with all applicable legal requirements known to Seller and Corporation to be Sold, and in the aggregate provide the capacity to enable Corporation to be Sold to engage in commercial operation on a continuous basis (subject to normal maintenance and repair outages in the ordinary course). Since the date of the Interim Balance Sheet, Corporation to be Sold has not sold, transferred, leased, distributed any present or otherwise disposed intended use of any such Purchased Assets or materially adversely affect the marketability of its assets, or agreed to do so except for sales of products and services in the ------ ordinary course of business or the disposition of immaterial assets in the ordinary course of business or which in the reasonable judgment of management are not necessary or advisable to the efficient operations of Seller and Corporation to be Sold. All items of raw materials, work-in-process and finished goods included in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be Sold, all items of finished goods are of good standard and merchantable quality, and none of the items is obsolete or defective, except in each case for items which have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Balance SheetPurchased Assets.

Title and Condition of Assets. The Shares Seller Corp. has good and marketable title to the tangible and intangible personal property owned by Seller and Assets owned ----------------------------- by Corporation to be Sold are it that comprise the Assets, free and clear of Liens, other than than: (1) Permitted Encumbrances, or ; or (2) Liens which will be released or discharged at or prior to as of the Effective Time of Closing. No improvement or structure on any real property leased by Seller Corp. encroaches on any adjacent property. No improvement or structure on any real property leased by Seller Corp. has been damaged by any casualty or act of God, or been subject to any condemnation proceedings which, singly or in the aggregate, would have a Material Adverse Effect. The tangible Assets are Equipment (i) is in good operating condition condition, order and repair, subject to ordinary wear and tear, and have been maintained in accordance with standard industry practice, are (ii) is capable of being used in the Business as presently being conducted without present need for repair or replacement except in the ordinary course of the Business, conform (iii) conforms in all material ------ respects with all applicable legal requirements known to Seller and Corporation to be Soldrequirements, and (iv) in the aggregate provide provides the capacity to enable Corporation to be Sold Seller Corp. to engage in commercial operation on a continuous basis (subject to normal maintenance and repair outages in the ordinary course). Since the date of the Interim Unaudited Balance Sheet, Corporation to be Sold Seller Corp. has not sold, transferred, leased, distributed or otherwise disposed of any of its assetsAssets, or agreed to do so except for sales of products and services in the ------ ordinary course of business or the disposition of immaterial assets Assets in the ordinary course of business or which in the reasonable judgment of management are not necessary or advisable to the efficient operations of Seller and Corporation to be Sold. Corp. All items of raw materials, work-in-process and finished goods included in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be SoldSeller Corp., all items of finished goods are of good standard and merchantable quality, and none of the items is obsolete or defective, except in each case for items which have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Unaudited Balance Sheet. The quantities of each category and type of the Inventories not written off or reserved against are reasonable and warranted in the present circumstances of Seller Corp. and are not excessive. The Assets constitute all material assets and properties, real, personal, tangible and intangible, that are necessary for the continued conduct of the Business as presently being conducted.

Title and Condition of Assets. (a) The Shares owned by Seller Purchased Assets and the Excluded Assets owned ----------------------------- by Corporation constitute, and on the Closing Date will constitute, all of the assets and properties used or held for use in the conduct of the Business, and are, and on the Closing Date will be, generally adequate to be Sold are conduct the Business as currently conducted. Sellers have good, valid and marketable title to, or a valid leasehold interest in, the Purchased Assets, whether real, personal or mixed, tangible or intangible, free and clear of all Liens, other than except (a) Liens disclosed on Schedule 2.1(b) and 2.1(c), (b) Liens for Taxes incurred in the ordinary course of business which are not yet due and payable and (c) Liens disclosed and noted on the title commitments provided with respect to each property (the "Permitted EncumbrancesLiens"). The Purchased Assets include all of the assets and properties of the Business that are reflected on the Balance Sheets, except for the Excluded Assets and any of the Purchased Assets that may have been consumed or disposed of in the ordinary course of the Business consistent with past practices since the Balance Sheet Date or as permitted by this Agreement. At the Closing, Sellers shall have sold, conveyed, transferred and assigned to Buyer, and Buyer shall have acquired, good and marketable title to, or a valid leasehold interest in, the Purchased Assets free and clear of all of Liens which will be released except Permitted Liens and Assumed Debt. (b) Schedule 2.1(a) describes all real property and leases of, and other interests in, real property (in each case together with all buildings, fixtures and improvements erected thereon and easements and other rights appurtenant thereto) owned, held or discharged used in the conduct of the Business by the Seller Parties (the "Real Property"), all title insurance policies and surveys with respect thereto, and all Liens thereon, specifying in the case of leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent. Schedule 2.1(a) contains a reasonably complete description of all material renovation projects in process at or prior to any of the Effective Time Facilities, including a list of Closingall contracts relating thereto and any amounts retained by Sellers under such contracts. The tangible Real Property includes all real property, and only such real property, as is used or held for use in connection with the conduct of the Business. (c) Schedule 2.1(b) describes all personal property used or held for use in connection with the conduct of the Business included in the Purchased Assets, including but not limited to all machinery, equipment, furniture, vehicles and other trade fixtures and fixed assets, and any Liens thereon, specifying in the case of leases or subleases, the name of the lessor or sublessor, the lease term and basic annual rent. (d) All leases of Real Property or personal property are in good standing and are valid, binding and enforceable in accordance with their respective terms, and except as set forth Execution Copy -------------- on Schedule 3.10 (d) there does not exist under any such lease of real property or personal property any material default or any event that, with notice or lapse of time or both, would constitute a material default. (e) Except as set forth on Schedule 3.10(e), the buildings, structures and equipment included in the Purchased Assets have no material defects, are in good operating condition and repairrepair and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age and length of use of same, subject to and ordinary wear and tear, and have been maintained in accordance with standard industry practice), are capable of being used suitable for their present uses and, in the Business as presently being conducted case of buildings and other structures, such buildings and other structures (including without present need for repair or replacement except limitation, the roofs thereof), are structurally sound. (f) The buildings and structures included in the ordinary course Purchased Assets currently have access to (i) public roads or valid easements over private streets or private property for such ingress to an egress from all such plants, buildings and structures and (ii) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire protection, drainage and other public utilities, as is necessary for the conduct of the Business. (g) Except as shown on the surveys listed on Schedule 2.1(a), conform in all none of the material ------ respects with all applicable legal requirements known to Seller and Corporation to be Soldstructures on the Real Property encroaches upon real property of another Person, and in no structure of any other Person encroaches upon any Real Property and there are no defects which are not shown on the aggregate provide surveys listed on Schedule 2.1(a) relating to the capacity Real Property which would be shown by an accurate survey as of the date of this Agreement. (h) Except as set forth on Schedule 3.10(h), no violation of any laws, regulations or ordinances relating to enable Corporation zoning, environmental, city planning or similar matters relating to be Sold to engage in commercial operation on a continuous basis the Business, the Development Projects or any Purchased Asset currently exists or has existed at any time since January 1, 1991 (subject to normal maintenance and repair outages in the ordinary course). Since or the date of the Interim Balance SheetSellers' acquisition if later), Corporation except for violations that have not had and would not reasonably be expected to be Sold has not soldhave, transferredindividually or in the aggregate, leaseda Material Adverse Effect. Except as set forth on Schedules 3.10(h), distributed 3.11, 3.20 or otherwise disposed 3.15, there are no developments affecting the Business or any of the Facilities pending or, to the knowledge of Seller, threatened, which might materially detract from the value of such Business or Facility materially interfere with any present or intended use of any of its assets, or agreed to do so except for sales of products and services in the ------ ordinary course of business or the disposition of immaterial assets in the ordinary course of business or which in the reasonable judgment of management are not necessary or advisable such Purchased Assets related to the efficient operations Business or materially adversely affect the marketability of Seller and Corporation such Purchased Assets related to be Sold. All items of raw materials, work-in-process and finished goods included in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be Sold, all items of finished goods are of good standard and merchantable quality, and none of the items is obsolete or defective, except in each case for items which have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Balance SheetBusiness.

Title and Condition of Assets. The Shares owned by (a) Seller has good and Assets owned ----------------------------- by Corporation indefeasible title to be Sold are all of the Assets, free and clear of Liensall Liens (except for the Liens identified on Schedule 6.9 which are being satisfied, other than Permitted Encumbrancesdischarged and released at the Closing). All of the Assets are in Seller's possession and control. At the Closing, or Liens which Seller will be released or discharged at or prior sell, transfer, assign, grant, bargain, deliver and convey to Buyer all right, title and interest in and to the Effective Time Assets, free and clear of Closingany and all Liens. (b) Seller owns or has irrevocable rights to use and is transferring to Buyer hereunder all assets, property and rights as are necessary or useful for the conduct of Business as the Business has been conducted by Seller, except for (i) the Excluded Assets, (ii) governmental licenses, permits and approvals and (iii) assets, property and rights that previously have been disposed of by Seller in the ordinary course of business consistent with past practice. (c) An accurate and complete list of all personal property and Fixed Assets included in the Assets having a fair market or book value per unit in excess of $1,500 is included on Schedule 2.1B. (d) The conduct of the Business of Seller in the ordinary course is not dependent upon the right to use the property of others, except under valid and binding lease agreements included among the Contracts listed on Schedule 6.11 hereto. Seller has quiet and peaceable possession of each of the real properties, vehicles and other equipment which are the subject of such lease agreements. (e) The tangible personal property and Fixed Assets being transferred by Seller, including machinery, equipment, furniture and fixtures, are in good operating condition and repair, subject to repair (ordinary wear and tear, tear excepted). (f) All Inventories of Seller are in good and have been maintained in accordance with standard industry practicemerchantable condition, are capable of being used in the Business as presently being conducted without present need for repair or replacement except turning and are usable and salable in the ordinary course of the Business, conform and the values at which such Inventories are carried on Seller's books of account fairly represent the value thereof, are not in all material ------ respects with all applicable legal requirements known to Seller and Corporation to be Soldexcess of realizable value, and in reflect the aggregate provide the capacity to enable Corporation to be Sold to engage in commercial operation on a continuous basis normal inventory valuation policy of Seller. (subject to normal maintenance and repair outages in the ordinary course). Since the date g) The Accounts Receivable of the Interim Balance Sheet, Corporation to be Sold has not sold, transferred, leased, distributed or otherwise disposed of any of its assets, or agreed to do so except for sales of products Business as shown on Seller's books and services in the ------ ordinary course of business or the disposition of immaterial assets records have arisen in the ordinary course of business or which business, represent valid and enforceable obligations owed to Seller and are recorded as trade accounts receivable on the books of Seller in accordance with GAAP and said Accounts Receivable (billed and unbilled) of the Business will be fully paid in the reasonable judgment ordinary course of management are not necessary or advisable to the efficient operations of Seller and Corporation to be Sold. All items of raw materials, work-in-process and finished goods included in the Inventories are in such condition that they can be readily converted into merchantable finished goods by industry standard processing procedures currently used by Corporation to be Sold, all items of finished goods are of good standard and merchantable quality, and none of the items is obsolete or defective, except in each case for items which have been ------ written off or written down and so reflected on the Interim Balance Sheet or for which reserves are provided the Interim Balance Sheetbusiness.