Common use of Title to and Condition of Properties Clause in Contracts

Title to and Condition of Properties. (a) Schedule 5.10A contains an accurate and complete list of all real property related to the operation of the Business in which the Operating Company or Stellar Propane has any interest, including an accurate description of each property and the interests therein. Schedule 5.10B contains an accurate and complete list of all leases and subleases of real and mixed property related to the operation of the Business under which the Operating Company or Stellar Propane is a lessor or lessee (accurate and complete copies of which have previously been delivered to Buyer). The Operating Company or Stellar Propane, as applicable, has marketable fee simple title to all of the owned real properties described on Schedule 5.10A, and good title to all of the leasehold estates created by the leases and subleases described on Schedule 5.10B (such real properties and leasehold estates are collectively referred to as the “Real Property”), all free and clear of Liens, easements, restrictions and reservations except for Permitted Liens. As to leasehold estates under the leases and subleases of Real Property, the Operating Company or Stellar Propane, as applicable, has quiet and peaceable possession of each of the leased properties. All leases and subleases of Real Property in which the Operating Company or Stellar Propane are a lessor or sublessor are in full force and effect, there is no default or event of default thereunder and the rent thereunder has not been prepaid for more than a one-month period. (b) Schedule 5.10C contains a list of all Capital Leases of the Operating Company and Stellar Propane. Each such Capital Lease relates to the Business. (c) The Operating Company or Stellar Propane, as the case may be, have good and indefeasible title or valid lease rights to all of the assets necessary for the conduct of the Business, as currently conducted, or reflected in the balance sheets contained in the SEC Reports (except for those assets relating solely to the Excluded Subsidiaries) or the 2004 Financials, and all assets associated with the Business purported to have been acquired by the Operating Company or Stellar Propane after the date of such balance sheets, except for such assets that were disposed of in the ordinary course of business and consistent with past practice, and all of such assets are in the Operating Company’s or Stellar Propane’s, as the case may be, possession and control. (d) On the Closing Date, all of the assets necessary for the conduct of the Business, as currently conducted will be owned or leased by the Operating Company or Stellar Propane, as the case may be, free and clear of all Liens, other than Permitted Liens. (e) The accounts receivable of the Operating Company and Stellar Propane as shown on their respective books and records have arisen in the ordinary course of business and consistent with past practice and are recorded as accounts receivable on the books of the Sellers in accordance with GAAP. (f) Except with respect to the Retained Propane Assets, none of the Excluded Subsidiaries is currently engaging in the Business and none of the Excluded Subsidiaries own, lease or have any other rights with respect to any of the assets associated with the Business.

Title to and Condition of Properties. (a) Schedule 5.10A contains an accurate and complete list Each of all real property related to the operation of the Business in which the Operating Company or Stellar Propane has any interest, including an accurate description of each property PhotoWorks and the interests therein. Schedule 5.10B contains an accurate PhotoWorks Subsidiaries has good, valid and complete list of all leases and subleases of real and mixed property related to the operation of the Business under which the Operating Company or Stellar Propane is a lessor or lessee (accurate and complete copies of which have previously been delivered to Buyer). The Operating Company or Stellar Propane, as applicable, has marketable fee simple indefeasible title to all of the owned real its material assets and properties described on Schedule 5.10Aof every kind, nature and good title to description, tangible or intangible, wherever located, which constitute all of the leasehold estates created by property now used in and necessary for the leases conduct of its business as presently conducted (including all material property and subleases described assets shown or reflected on Schedule 5.10B (the Reference Balance Sheet). All such real assets and properties and leasehold estates are collectively referred to as the “Real Property”), all owned free and clear of Liens, easements, restrictions and reservations all Liens except for Permitted Liens. As to leasehold estates To the Knowledge of PhotoWorks, all such properties are usable for their current uses without violating any Applicable Laws, or any applicable private restriction, and such uses are legal conforming uses. No financing statement under the leases Uniform Commercial Code or similar law naming PhotoWorks or any PhotoWorks Subsidiary, or any of their predecessors, is on file in any jurisdiction in which PhotoWorks or any PhotoWorks Subsidiary owns property or does business, and subleases of Real Property, the Operating Company neither PhotoWorks nor any PhotoWorks Subsidiary is a party to or Stellar Propane, as applicable, has quiet and peaceable possession of each bound under any material agreement or legal obligation authorizing any party to file any such financing statement. Section 6.13(a) of the PhotoWorks Disclosure Schedule contains a complete and accurate list of the location of all real property which is owned, leased properties. All leases or operated by PhotoWorks or any PhotoWorks Subsidiary and subleases describes the nature of Real Property PhotoWorks’s or the PhotoWorks Subsidiary’s interest in which the Operating Company or Stellar Propane are a lessor or sublessor are in full force and effect, there is no default or event of default thereunder and the rent thereunder has not been prepaid for more than a one-month periodthat real property. (b) All real property, plants and structures and all machinery and equipment and tangible personal property owned, leased or used by PhotoWorks or any PhotoWorks Subsidiary and material to the operation of its respective business are reasonably suitable for the purpose or purposes for which they are being used (including material compliance with all Applicable Laws) and are in good condition and repair, ordinary wear and tear excepted. Section 6.13(b) of the PhotoWorks Disclosure Schedule 5.10C contains a list lists, and PhotoWorks has furnished or made available to Parent, copies of all Capital Leases of the Operating Company engineering, geologic and Stellar Propane. Each such Capital Lease relates environmental reports prepared by or for PhotoWorks or any PhotoWorks Subsidiary with respect to the Businessreal property owned, leased or used by PhotoWorks or any PhotoWorks Subsidiary. (c) The Operating Company or Stellar Propane, Except as the case may be, have good and indefeasible title or valid lease rights to all set forth in Section 6.13(c) of the assets necessary for the conduct of the BusinessPhotoWorks Disclosure Schedule, as currently conductedno real or personal property owned, leased, or reflected used by PhotoWorks or any PhotoWorks Subsidiary has been used to produce, process, store, handle, or transport any hazardous or toxic substance or waste (as those terms are defined or described in the balance sheets contained in the SEC Reports (except for those assets relating solely to the Excluded Subsidiaries) or the 2004 Financials, and all assets associated with the Business purported to have been acquired by the Operating Company or Stellar Propane after the date of such balance sheets, except for such assets that were disposed of in the ordinary course of business and consistent with past practice, and all of such assets are in the Operating Company’s or Stellar Propane’s, as the case may be, possession and control. (d) On the Closing Date, all of the assets necessary for the conduct of the Business, as currently conducted will be owned or leased by the Operating Company or Stellar Propane, as the case may be, free and clear of all Liens, other than Permitted Liens. (e) The accounts receivable of the Operating Company and Stellar Propane as shown on their respective books and records have arisen in the ordinary course of business and consistent with past practice and are recorded as accounts receivable on the books of the Sellers in accordance with GAAP. (f) Except with respect to the Retained Propane Assets, none of the Excluded Subsidiaries is currently engaging in the Business and none of the Excluded Subsidiaries own, lease or have any other rights with respect to any of the assets associated with Applicable Laws relating to the Businessprotection, preservation, conservation, restoration or quality of the environment), except to the extent immaterial quantities of hazardous substances are used as an incidental aspect of the operation of its respective business. To the Knowledge of PhotoWorks, no hazardous or toxic substance or waste has been disposed of, released or discharged on, leaked from, or has otherwise contaminated any real property now or heretofore owned, leased or used by PhotoWorks or any PhotoWorks Subsidiary. No asbestos or substances containing material quantities of asbestos have been installed in any such property.

Title to and Condition of Properties. (a) Schedule 5.10A 4.5A, Schedule 4.5B, Schedule 4.5C, Schedule 4.5D and Schedule 4.5E hereto contains an accurate a true, correct and complete list of all real property related to the operation of the Business in which the Operating Company or Stellar Propane Seller has any interest, including an . An accurate and legally sufficient description of each property the Seller Property, the Seller Lease Property, the Shareholder Property, the Shareholder Lease Property and the interests thereinThird Party Property is set forth on Schedule 4.5A, Schedule 4.5B, Schedule 4.5C, Schedule 4.5D and Schedule 4.5E, respectively. Schedule 5.10B 2.1A hereto contains an accurate a true, correct and complete list of all leases and subleases of real and mixed property related to the operation of the Business under which the Operating Company or Stellar Propane Seller is a lessor or lessee (true, accurate and complete copies of which have previously been delivered to Buyer). The Operating Company or Stellar Propane, as applicable, Seller has marketable good fee simple title to all of the owned real properties described on Schedule 5.10A4.5A and Schedule 4.5B hereto, free and clear of any mortgage, deed of trust, trust deed, mechanics lien or similar lien, and good good, marketable and indefeasible title to all of the leasehold estates created by the leases and subleases described on Schedule 5.10B (such 2.1A hereto. The Shareholders have good fee simple title to all of the real properties described on Schedule 4.5C and leasehold estates are collectively referred to Schedule 4.5D hereto as the “Real Property”)specified on such Schedules, all free and clear of Liensany mortgage, easementsdeed of trust, restrictions and reservations except for Permitted Lienstrust deed, mechanics lien or similar lien. As to leasehold estates under the leases and subleases of Real the Shareholder Property, the Operating Company or Stellar PropaneShareholder Lease Property and the Third Party Property, as applicable, Seller has quiet and peaceable possession of each of the leased properties. All such leases and subleases of Real Property in which the Operating Company or Stellar Propane are a lessor or sublessor are in full force and effect, there is no default or event of default by Seller thereunder or, to the Knowledge of Seller and Shareholders, by the rent thereunder has not been prepaid for more than a one-month periodother parties to such leases and subleases. (b) Schedule 5.10C contains a A true, correct and complete list of all Capital Leases propane tanks (by size and location) which are owned by Seller having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) and all other personal property included in the Operating Company Assets (by type and Stellar Propanelocation) having a fair market or book value per unit in excess of One Thousand Dollars ($1,000) is included on Schedule 2.1B and a true, correct and complete list of all leases of personal property included in the Assets under which Seller is a lessee or lessor involving any propane tank having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250), any other personal property having a fair market or book value per unit in excess of One Thousand Dollars ($1,000), or any motor vehicle is included on Schedule 2.1C (true, accurate and complete copies of which have previously been delivered to Buyer). Each such Capital Lease relates A true, correct and complete list of all propane tanks (by serial number) which are owned by Seller having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) previously has been furnished by Seller to Buyer. All propane tanks used in the Business. Business which have a capacity of at least one hundred twenty (c120) The Operating Company gallons are under contract to customers or Stellar Propane, as are physically located on the case may be, have plant lot of Seller’s retail locations. Seller has good and indefeasible title or valid lease rights to (i) all of the assets necessary for the conduct personal property set forth on Schedule 2.1B and indicated as being owned by it, (ii) all of the Business, as currently conducted, or Assets reflected in the July 31, 2004 balance sheets contained in the SEC Reports (except for those assets relating solely to the Excluded Subsidiaries) or the 2004 Financialssheet of Seller, and (iii) all assets associated with the Business Assets purported to have been acquired by the Operating Company or Stellar Propane Seller after the date of such balance sheetsJuly 31, except for such assets that were disposed of in the ordinary course of business and consistent with past practice, and all of such assets are in the Operating Company’s or Stellar Propane’s, as the case may be, possession and control. (d) On the Closing Date, all of the assets necessary for the conduct of the Business, as currently conducted will be owned or leased by the Operating Company or Stellar Propane, as the case may be2004, free and clear of all Liens, except for such Assets disposed of in the usual and ordinary course of business consistent with past practices. All of the Assets are in Seller’s possession and control, except that propane tanks leased by Seller to its customers may be located on the premises of the respective customers in accordance with the terms of the applicable lease. (c) The conduct of the Business by Seller in the ordinary course is not dependent upon the right to use the property of others, except under valid and binding lease agreements identified on Schedule 2.1C hereto and under licenses to use shrink-wrap packaged software (i.e., Microsoft and other than Permitted Lienscommercially available software) installed on Seller’s computers. (d) 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 during at least the past two years, except for (i) the Excluded Assets, (ii) governmental licenses, permits and approvals to the extent not assignable to Buyer, and (iii) assets, property and rights that have been disposed of in the ordinary course of Seller’s business. (e) The tangible personal property Assets being transferred by Seller are in good operating condition and repair (ordinary wear and tear excepted). (f) The values at which the inventories of the Business are carried on Seller’s books of account fairly represent the value thereof, are not in excess of realizable value, and reflect the normal inventory valuation policy of Seller. (g) The accounts receivable of the Operating Company and Stellar Propane Business as shown on their respective Seller’s books and records have arisen in the ordinary course of business business, represent valid and consistent with past practice enforceable obligations owed to Seller and are recorded as accounts receivable on the books of the Sellers Seller in accordance with GAAP. (fh) Except with respect to the Retained Propane AssetsSchedule 3.1(e) hereto sets forth a true, none correct and complete list of each acquisition by Seller of the Excluded Subsidiaries is currently engaging in business and assets of retail propane companies that was completed between July 26, 2005 and the Business and none Closing Date, including the closing date for such acquisition, the location of the Excluded Subsidiaries ownbusiness and assets acquired, lease or the Person from whom such business and assets were acquired by Seller, the purchase price paid by Seller for such business and assets, and the trailing twelve-month propane gallons sold by the business acquired. True, accurate and complete copies of all Contracts relating to each such acquisition previously have any other rights with respect been delivered to any of the assets associated with the BusinessBuyer.

Title to and Condition of Properties. (a) Schedule 5.10A 2.1A hereto contains an accurate a true, correct and complete list of ------------- all real property related to the operation of the Business in which the Operating Company or Stellar Propane SELLER has any interest, including an accurate and legally sufficient description of each thereof and separately identifies all real property and the interests thereinSELLER has ever had an interest in. Schedule 5.10B 2.1B hereto contains an accurate a true, correct and complete list of all leases ------------- and subleases of real and mixed property related to the operation of the Business under which the Operating Company or Stellar Propane SELLER is a lessor or lessee (true, accurate and complete copies of which have previously been delivered to BuyerBUYER). The Operating Company or Stellar PropaneSELLER has good, as applicable, has marketable and indefeasible fee simple title to all of its real properties, including but not limited to the owned real properties in which it has an interest as described on Schedule 5.10A2.1A hereto, and good good, marketable and indefeasible title ------------- to all of the leasehold estates created by the leases and subleases described on Schedule 5.10B 2.1B hereto (such real properties and leasehold estates are collectively ------------- referred to herein as the “"Real Property”"), all free and clear of Liens, easements, restrictions and reservations except only for those matters set forth on Schedule 6.10A hereto (such matters hereinafter referred to as "Permitted Liens-------------- Encumbrances"). As Without limiting the generality of the foregoing, as to leasehold estates under the leases and subleases of Real Property, the Operating Company or Stellar Propane, as applicable, SELLER has quiet and peaceable possession of each of the leased properties. All leases and subleases of Real Property in which the Operating Company or Stellar Propane are SELLER is a lessor or sublessor are in full force and effect, there is no default or event of default thereunder and the rent thereunder has not been prepaid for more than a one-month period. SELLER has and upon the transfer to BUYER as contemplated herein the BUYER has complete rights of ingress and egress to all of its real properties and to all its leasehold estates. (b) Schedule 5.10C contains a A true, correct and complete list of all Capital Leases propane tanks and cylinders which are owned or serviced by SELLER and all other personal property included in the Assets having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) is included on Schedule 2.1C and a true, ------------- correct and complete list of all leases of personal property included in the Operating Company Assets under which SELLER is a lessee or lessor involving any propane tank or cylinder or any other personal property having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) is included on Schedule 2.1D (true, accurate and Stellar Propanecomplete copies of which have ------------- previously been delivered to BUYER). Each such Capital Lease relates All propane tanks used in the Business which have a capacity of at least one hundred twenty (120) gallons are under contract to customers or are physically located on the Business. (c) The Operating Company or Stellar Propane, as the case may be, have plant lot of one of SELLER's retail locations. SELLER has good and indefeasible title or valid lease rights to (i) all of the assets necessary for the conduct personal property set forth on Schedule 2.1C and indicated as being owned by ------------- it, (ii) all of the Business, as currently conducted, or Assets reflected in the balance sheets contained in the SEC Reports (except for those assets relating solely to the Excluded Subsidiaries) or the 2004 Financialsfinancial statements of SELLER, and (iii) all assets associated with the Business Assets purported to have been acquired by the Operating Company or Stellar Propane SELLER after the date of such balance sheets, except for such assets that were disposed of in the ordinary course of business and consistent with past practice, and all of such assets are in the Operating Company’s or Stellar Propane’s, as the case may be, possession and control. (d) On the Closing Date, all of the assets necessary for the conduct of the Business, as currently conducted will be owned or leased by the Operating Company or Stellar Propane, as the case may befinal statements, free and clear of all Liens, other than Permitted Liensexcept for such Assets disposed of in the usual and ordinary course of business consistent with past practices, and all of such Assets are in SELLER's possession and control. (c) 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 agreements identified on Schedule 6.10B hereto (true, accurate and -------------- complete copies of which have previously been delivered to BUYER). The Real Property and the improvements located thereon do not encroach upon the property of others and there are no encroachments onto the Real Property from the property of others. The Assets include all utility connections, and the right to use the same, necessary for the conduct of the Business in the ordinary course and said utilities are available under public rights of way or easements benefiting the Real Property. (d) SELLER owns or has irrevocable rights to use and is transferring to BUYER hereunder all assets and property necessary for the conduct of SELLER's Business in the ordinary course. (e) The Assets being transferred by SELLER, including, but not limited to, the machinery, equipment (including automobiles, trucks and heavy machinery), furniture and fixtures are in good operating condition and repair and of an appropriate character suitable for the uses for which intended in the operation of the Business of SELLER in the ordinary course. (f) All inventories of SELLER are of a quality and quantity usable and salable in the ordinary course of SELLER's Business and in any event are not in excess of projected requirements over the next twelve (12) months, and the values at which such inventories are carried on the books of account fairly represent the value thereof, are not in excess of realizable value, and reflect the normal inventory valuation policy of SELLER. (g) The accounts receivable of the Operating Company and Stellar Propane SELLER as shown on their respective its books and records have arisen in the ordinary course of business Business, represent valid and consistent with past practice enforceable obligations owed to SELLER and are recorded as accounts receivable on the books of the Sellers SELLER in accordance with GAAP. GAAP and said accounts receivable (fbilled and unbilled) Except with respect to the Retained Propane Assets, none of SELLER (net of the Excluded Subsidiaries is currently engaging reserve amount) will be fully paid in the ordinary course of Business and none of the Excluded Subsidiaries own, lease or have any other rights with respect to any of the assets associated with the BusinessSELLER.

Title to and Condition of Properties. (a) Schedule 5.10A 2.1A hereto contains an accurate a true, correct and complete list of all real property related to the operation of the Business in which the Operating Company or Stellar Propane has any interestis owned by Seller, including an accurate and legally sufficient description of each property and the interests thereintherein (the “Real Property”). Schedule 5.10B 2.1B hereto contains an accurate a true, correct and complete list of all leases and subleases of real and mixed property related to the operation of the Business under which the Operating Company or Stellar Propane Seller is a lessor or lessee (true, accurate and complete copies of which have previously been delivered to Buyer). The Operating Company or Stellar PropaneSeller has good, as applicable, has marketable and indefeasible fee simple title to all of the owned real properties described on Schedule 5.10A2.1A hereto, and good good, marketable and indefeasible title to all of the leasehold estates created by the leases and subleases described on Schedule 5.10B (such real properties and leasehold estates are collectively referred to as the “2.1B hereto. The Real Property”), all Property described on Schedule 2.1A is owned by Seller free and clear of Liens, easements, restrictions and reservations except only for those matters which are included in the Title Commitment (collectively, such matters hereinafter referred to as “Permitted LiensEncumbrances”). As to leasehold estates under the leases and subleases of Real Propertyidentified on Schedule 2.1B, the Operating Company or Stellar Propane, as applicable, Seller has quiet and peaceable possession of each of the leased properties. All leases and subleases of Real Property in which the Operating Company or Stellar Propane are Seller is a lessor or sublessor sublessor, or lessee or sublessee, are in full force and effect, there is no default or event of default thereunder and the rent thereunder has not been prepaid for more than a one-month period. (b) Schedule 5.10C contains a A true, correct and complete list of all Capital Leases propane tanks which are owned or serviced by Seller and all other personal property included in the Assets having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) is included on Schedule 2.1C and a true, correct and complete list of all leases of personal property included in the Operating Company Assets under which Seller is a lessee or lessor involving any propane tank or any vehicle or other personal property having a fair market or book value per unit in excess of Two Hundred Fifty Dollars ($250) is included on Schedule 2.1D (true, accurate and Stellar Propanecomplete copies of which have previously been delivered to Buyer). Each such Capital Lease relates All propane tanks used in the Business which have a capacity of at least one hundred twenty (120) gallons are under contract to the Business. (c) The Operating Company customers or Stellar Propane, as the case may be, have are physically located on Seller’s tank storage locations. Seller has good and indefeasible marketable title or valid lease rights to (i) all of the assets necessary for the conduct personal property set forth on Schedule 2.1C and indicated as being owned by it, (ii) all of the Business, as currently conducted, or Assets reflected in the September 30, 2003 balance sheets contained in the SEC Reports (except for those assets relating solely to the Excluded Subsidiaries) or the 2004 Financialssheet of Seller, and (iii) all assets associated with the Business Assets purported to have been acquired by the Operating Company or Stellar Propane Seller after the date of such balance sheetsSeptember 30, except for such assets that were disposed of in the ordinary course of business and consistent with past practice, and all of such assets are in the Operating Company’s or Stellar Propane’s, as the case may be, possession and control. (d) On the Closing Date, all of the assets necessary for the conduct of the Business, as currently conducted will be owned or leased by the Operating Company or Stellar Propane, as the case may be2003, free and clear of all Liens, other than except Permitted LiensEncumbrances and except for such Assets disposed of in the usual and ordinary course of business consistent with past practices. All of the Assets are in Seller’s possession and control. (c) The conduct of the Business by Seller in the ordinary course is not dependent upon the right to use the property of others, except as identified on Schedule 2.1D hereto. The Assets include all utility connections, and the right to use the same, necessary for the conduct of the Business in the ordinary course and said utilities are available under public rights of way or easements benefiting the Real Property. All of the Real Property has both physical and legal access to an open and publicly-dedicated road. (d) The tangible personal property Assets being transferred by Seller are, taken as a whole, in good operating condition and repair (ordinary wear and tear excepted). (e) All inventories of the Business are of a quality and quantity usable and salable in the ordinary course of the Business as historically conducted. (f) The accounts receivable of the Operating Company and Stellar Propane Business as shown on their respective Seller’s books and records have arisen in the ordinary course of business business, represent valid and consistent with past practice enforceable obligations owed to Seller and are recorded as accounts receivable on the books of the Sellers Seller in accordance with GAAP. (f) Except with respect to the Retained Propane Assets, none of the Excluded Subsidiaries is currently engaging in the Business and none of the Excluded Subsidiaries own, lease or have any other rights with respect to any of the assets associated with the Business.