TENANTS THEREUNDER ARE CURRENT IN ALL MATERIAL RESPECTS,
(III) NO TERMINATION EVENT OR CONDITION OR UNCURED DEFAULT OF A MATERIAL NATURE
ON THE PART OF THE COMPANY OR ANY SUCH SUBSIDIARY OR, TO THE KNOWLEDGE OF THE
COMPANY OR ANY SUCH SUBSIDIARY, THE LANDLORD, EXISTS UNDER ANY REAL PROPERTY
LEASE, (IV) THE COMPANY OR ONE OF ITS SUBSIDIARIES IS IN ACTUAL POSSESSION OF
EACH LEASED REAL PROPERTY AND IS ENTITLED TO QUIET ENJOYMENT THEREOF IN
ACCORDANCE WITH THE TERMS OF THE APPLICABLE REAL PROPERTY LEASE AND APPLICABLE
LAW, AND (V) THE COMPANY AND ITS SUBSIDIARIES OWN OUTRIGHT ALL OF THE PERSONAL
PROPERTY (EXCEPT FOR LEASED PROPERTY OR ASSETS FOR WHICH IT HAS A VALID AND
ENFORCEABLE RIGHT TO USE) WHICH IS REFLECTED ON THE BALANCE SHEET, EXCEPT FOR
PROPERTY SINCE SOLD OR OTHERWISE DISPOSED OF IN THE ORDINARY COURSE OF BUSINESS
AND CONSISTENT WITH PAST PRACTICE AND EXCEPT FOR LIENS OF RECORD AND OTHER
PERMITTED LIENS.
EXCEPT WHERE THE FAILURE WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, HAVE A COMPANY MATERIAL ADVERSE EFFECT, THE PLANT, PROPERTY AND
EQUIPMENT OF THE COMPANY AND ITS SUBSIDIARIES THAT ARE USED IN THE OPERATIONS OF
THEIR BUSINESSES ARE IN GOOD OPERATING CONDITION AND REPAIR, SUBJECT TO ORDINARY
WEAR AND TEAR, AND, SUBJECT TO NORMAL MAINTENANCE, ARE AVAILABLE FOR USE.
3.10.
CERTAIN CONTRACTS.
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS BREACHED, OR RECEIVED IN WRITING ANY CLAIM OR NOTICE THAT IT
HAS BREACHED, ANY OF THE TERMS OR CONDITIONS OF (I) ANY AGREEMENT, CONTRACT OR
COMMITMENT REQUIRED TO BE FILED AS AN EXHIBIT TO THE COMPANY SEC REPORTS
(INCLUDING ANY AGREEMENTS, CONTRACTS OR COMMITMENTS ENTERED INTO SINCE
DECEMBER 31, 2004 THAT WILL BE REQUIRED TO BE FILED BY THE COMPANY WITH THE SEC
IN ANY REPORT), (II) ANY AGREEMENTS, CONTRACTS OR COMMITMENTS WITH
MANUFACTURERS, SUPPLIERS, SALES REPRESENTATIVES, DISTRIBUTORS, OR ORIGINAL
EQUIPMENT MANUFACTURER ("OEM") STRATEGIC PARTNERS OF THE COMPANY PURSUANT TO
WHICH THE COMPANY RECOGNIZED REVENUES OR PAYMENTS IN EXCESS OF $250,000 FOR THE
TWELVE-MONTH PERIOD ENDED DECEMBER 31, 2004, OR (III) ANY AGREEMENTS, CONTRACTS
OR COMMITMENTS CONTAINING COVENANTS THAT LIMIT THE ABILITY OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES TO COMPETE IN ANY LINE OF BUSINESS OR WITH ANY PERSON (AS
DEFINED IN SECTION 8.6 HEREOF), OR THAT INCLUDE ANY EXCLUSIVITY PROVISION OR
INVOLVE ANY RESTRICTION ON THE GEOGRAPHIC AREA IN WHICH THE COMPANY OR ANY OF
ITS SUBSIDIARIES MAY CARRY ON ITS BUSINESS (COLLECTIVELY, "COMPANY MATERIAL
CONTRACTS"), IN SUCH A MANNER AS, INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD OR
WOULD REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL ADVERSE EFFECT.
SECTION 3.10 OF THE COMPANY DISCLOSURE LETTER LISTS EACH COMPANY MATERIAL
CONTRACT DESCRIBED IN CLAUSES (II) AND (III) OF THE PRECEDING SENTENCE.
EACH
COMPANY MATERIAL CONTRACT THAT HAS NOT EXPIRED BY ITS TERMS IS IN FULL FORCE AND
EFFECT AND IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY AND/OR ITS
SUBSIDIARIES, ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM AND SIMILAR