TO OWN, INCLUDING ALL PERSONAL PROPERTY REFLECTED AS OWNED ON THE MOST
RECENT BALANCE SHEET (OTHER THAN PERSONAL PROPERTY SOLD, DISPOSED OF OR REPLACED
IN THE ORDINARY COURSE OF BUSINESS SINCE THE DATE THEREOF).
TO THE KNOWLEDGE OF
SELLER, EACH COMPANY HAS A VALID LEASEHOLD INTEREST IN ALL PERSONAL PROPERTY
THAT SUCH COMPANY PURPORTS TO LEASE, AND ALL SUCH LEASES ARE IN FULL FORCE AND
EFFECT AND CONSTITUTE VALID AND BINDING OBLIGATIONS OF AND ARE ENFORCEABLE
AGAINST, THE LESSORS THERETO, EXCEPT WHERE ANY SUCH FAILURE TO BE IN FULL FORCE
AND EFFECT, TO CONSTITUTE A VALID AND BINDING OBLIGATION, OR TO BE ENFORCEABLE
AGAINST THE LESSOR THERETO WOULD NOT BE MATERIAL TO THE COMPANIES TAKEN AS A
WHOLE.
TO THE KNOWLEDGE OF THE SELLER, NEITHER COMPANY IS IN BREACH OF ANY OF
THE TERMS OF ANY SUCH LEASE EXCEPT WHERE ANY SUCH BREACH WOULD NOT BE MATERIAL
TO THE COMPANIES TAKEN AS A WHOLE.
(E)
THIS SECTION 4.5 CONTAINS THE SOLE AND EXCLUSIVE REPRESENTATIONS
AND WARRANTIES OF SELLER RELATING TO REAL PROPERTY.
Section 4.6
Contracts.
(A)
TO THE KNOWLEDGE OF SELLER AND EXCEPT AS OTHERWISE DISCLOSED IN
SCHEDULE 4.6 OR AS ENTERED INTO AFTER THE DATE HEREOF IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.1, THERE ARE NO OUTSTANDING COMMITMENTS, CONTRACTS AND
AGREEMENTS (OTHER THAN AGREEMENTS RELATING TO REAL PROPERTY AGREEMENTS) TO WHICH
THE COMPANIES ARE PARTIES OR BY WHICH THEY ARE BOUND THAT: (I) INVOLVE
COMMITMENTS BY THE COMPANIES FOR TERMS OF TWELVE (12) MONTHS OR LONGER THAT
INVOLVE ANNUALIZED PAYMENTS OF MORE THAN TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000), (II) INVOLVE PAYMENT OF MORE THAN FIVE HUNDRED THOUSAND DOLLARS
($500,000) IN THE AGGREGATE (AND IN THE CASE OF THE FOREGOING CLAUSES (I) AND
(II), ARE NOT TERMINABLE BY THEIR TERMS, WITHOUT PENALTY, ON THIRTY (30) DAYS OR
LESS NOTICE), (III) CONTAIN A
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COVENANT NOT TO COMPETE RESTRICTING THE COMPANIES FROM COMPETING OR ENGAGING IN
ANY LINE OF BUSINESS; (IV) UNDER WHICH THE COMPANIES HAVE (A) CREATED, INCURRED,
ASSUMED OR GUARANTEED (OR MAY CREATE, INCUR, ASSUME OR GUARANTEE) ANY
INDEBTEDNESS, (B) GRANTED A LIEN (OTHER THAN A PERMITTED LIEN) ON THEIR ASSETS,
WHETHER TANGIBLE OR INTANGIBLE, TO SECURE SUCH INDEBTEDNESS, OR AGREED TO ANY
RESTRICTION OR LIMITATION ON DISTRIBUTIONS, DIVIDENDS OR RETURN ON EQUITY, OR
EXTENDED CREDIT TO ANY PERSON IN AN AMOUNT, INDIVIDUALLY OR IN THE AGGREGATE, IN
EXCESS OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) OF COMMITTED CREDIT
(EXCLUDING TRADE RECEIVABLES IN THE ORDINARY COURSE OF BUSINESS) OR (C) ANY
INDEMNITY, ANY GUARANTY OF PERFORMANCE OR ANY AGREEMENT TO PROVIDE CREDIT
SUPPORT OR OTHERWISE MAKE CAPITAL CONTRIBUTIONS, LOANS OR ADVANCES; (V) ANY
CURRENT CONTRACT TO WHICH EITHER COMPANY IS A PARTY FOR THE PURCHASE OR SALE OF
ANY BUSINESS, CORPORATION, PARTNERSHIP, JOINT VENTURE OR OTHER BUSINESS
ORGANIZATION; (VI) INVOLVE HEDGES, SWAPS, FIXED PRICED COMMITMENTS OR OTHER
DERIVATIVES THAT WOULD BE AN OBLIGATION OF EITHER COMPANY AFTER CLOSING; (VII)
ARE REAL PROPERTY AGREEMENTS; OR (VIII) ANY AMENDMENT, SUPPLEMENT, RESTATEMENT,
OR OTHER MODIFICATION RELATING TO ANY OF