AS A TRANSFEREE OR
SUCCESSOR, BY CONTRACT, OR OTHERWISE.
(F)
THE UNPAID TAXES OF TARGET (A) DID NOT, AS OF THE MOST RECENT
FISCAL MONTH END, EXCEED THE RESERVE FOR TAX LIABILITY (RATHER THAN ANY RESERVE
FOR DEFERRED TAXES ESTABLISHED TO REFLECT TIMING DIFFERENCES BETWEEN BOOK AND
TAX INCOME) SET FORTH ON THE FACE OF THE MOST RECENT BALANCE SHEET (RATHER THAN
IN ANY NOTES THERETO) AND (B) DO NOT EXCEED THAT RESERVE AS ADJUSTED FOR THE
PASSAGE OF TIME THROUGH THE CLOSING DATE IN ACCORDANCE WITH THE PAST CUSTOM AND
PRACTICE OF TARGET IN FILING ITS TAX RETURNS.
SINCE THE DATE OF THE MOST RECENT
BALANCE SHEET, TARGET HAS NOT INCURRED ANY LIABILITY FOR TAXES ARISING FROM
EXTRAORDINARY GAINS OR LOSSES, AS THAT TERM IS USED IN GAAP, OUTSIDE THE
ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST CUSTOM AND PRACTICE.
(G)
TARGET WILL NOT BE REQUIRED TO INCLUDE ANY ITEM OF INCOME IN, OR
EXCLUDE ANY ITEM OF DEDUCTION FROM, TAXABLE INCOME FOR ANY TAXABLE PERIOD (OR
PORTION THEREOF) ENDING AFTER THE CLOSING DATE AS A RESULT OF ANY:
(I)
CHANGE IN METHOD OF ACCOUNTING FOR A TAXABLE PERIOD ENDING ON OR
PRIOR TO THE CLOSING DATE;
(II)
"CLOSING AGREEMENT" AS DESCRIBED IN CODE §7121 (OR ANY
CORRESPONDING OR SIMILAR PROVISION OF STATE, LOCAL OR FOREIGN INCOME TAX LAW)
EXECUTED ON OR PRIOR TO THE CLOSING DATE;
(III)
INTERCOMPANY TRANSACTION OR EXCESS LOSS ACCOUNT DESCRIBED IN
TREASURY REGULATIONS UNDER CODE §1502 (OR ANY CORRESPONDING OR SIMILAR PROVISION
OF STATE, LOCAL OR FOREIGN INCOME TAX LAW);
(IV)
INSTALLMENT SALE OR OPEN TRANSACTION DISPOSITION MADE ON OR PRIOR
TO THE CLOSING DATE; OR
(V)
PREPAID AMOUNT RECEIVED ON OR PRIOR TO THE CLOSING DATE.
(H)
TARGET HAS NOT DISTRIBUTED STOCK OR EQUITY OF ANOTHER PERSON, OR
HAS HAD ITS MEMBERSHIP INTERESTS DISTRIBUTED BY ANOTHER PERSON, IN A TRANSACTION
THAT WAS PURPORTED OR INTENDED TO BE GOVERNED IN WHOLE OR IN PART BY CODE §355
OR CODE §361.
19
4.12
REAL PROPERTY.
(A)
TARGET DOES NOT HAVE, AND HAS NEVER HAD, ANY OWNED REAL PROPERTY.
(B)
SECTION 4.12(B) OF THE DISCLOSURE SCHEDULE SETS FORTH THE ADDRESS
OF EACH PARCEL OF LEASED REAL PROPERTY, AND A TRUE AND COMPLETE LIST OF ALL
LEASES FOR EACH SUCH LEASED REAL PROPERTY (INCLUDING THE DATE AND NAME OF THE
PARTIES TO SUCH LEASE DOCUMENT).
TARGET HAS DELIVERED TO BUYER A TRUE AND
COMPLETE COPY OF EACH SUCH LEASE DOCUMENT.
EXCEPT AS SET FORTH IN SECTION
4.12(B) OF THE DISCLOSURE SCHEDULE, WITH RESPECT TO EACH OF THE LEASES:
(I)
SUCH LEASE IS LEGAL, VALID, BINDING, ENFORCEABLE AND IN FULL
FORCE AND EFFECT;
(II)
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT DO NOT REQUIRE
THE CONSENT OF ANY OTHER PARTY TO SUCH LEASE, WILL NOT RESULT IN A BREACH OF OR
DEFAULT UNDER SUCH LEASE, AND WILL NOT OTHERWISE CAUSE SUCH LEASE TO CEASE TO BE
LEGAL, VALID, BINDING, ENFORCEABLE AND IN FULL FORCE AND EFFECT ON IDENTICAL
TERMS FOLLOWING THE CLOSING;
(III)
TARGET'S POSSESSION AND QUIET ENJOYMENT