Common use of Assets and Properties Clause in Contracts

Assets and Properties. (a) The Company has (i) good and marketable title to all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Liens. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of business.

Assets and Properties. (a) The Except as set forth in Section 3.15 of the Company has Disclosure Letter, and except for the Excluded Company Real Property, (i) either the Company or a Subsidiary of the Company has good and marketable title valid title, and as of the Effective Time, PropCo will have good and valid title, subject to all Permitted Liens and any encumbrances and obligations that run with the land (including, but not limited to, easements and right-of-way agreements), to each real property owned by the Company or any Subsidiary of its assets and properties the Company (whether realsuch owned property collectively, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010“Company Owned Real Property”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interests in all interest, and as of its assets the Effective Time, PropCo will have good and properties which it purports to leasevalid leasehold interest, in each case material lease, material sublease and other material agreement under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (with respect to both clause including real property at which operations of the Company or any of its Subsidiaries are conducted) (i) such property, the “Company Leased Real Property” and (ii) abovesuch leases, subleases and other agreements are, collectively, the “Company Real Property Leases”), in each case, free and clear of any Liens, all Liens other than any Permitted LiensLiens and any Lien affecting solely the interest of the landlord thereunder. Each Company Real Property Lease is, and after giving effect to the Distribution will be, valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions. No uncured default of a material nature on the part of the Company or, if applicable, its Subsidiary or, to the knowledge of the Company, the landlord or sublandlord thereunder (as applicable), exists under any Company Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 3.15(a) of the Company Disclosure Letter sets forth a correct and complete list, as of the date hereof, of the Company Owned Real Property and the Company Leased Real Property. (b) The There are no leases, subleases, licenses, rights or other agreements affecting any portion of the Company does not own and has never owned Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company or its Subsidiaries in the operation of its business thereon. There are no outstanding options or rights of first refusal in favor of any real propertyother party to purchase any Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property by the Company in the operation of its business thereon. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Company Owned Real Property or Company Leased Real Property that would reasonably be expected to adversely affect in any material respect the existing use of such Company Owned Real Property or Company Leased Real Property in the operation of the business conducted thereon as currently conducted. (c) Schedule 6.9(cSection 3.15(c) of the Company Disclosure Letter contains a true, complete and correct list of each Vessel and such list includes all Vessels used by the Company and its Subsidiaries in the conduct of the Company’s and its Subsidiaries’ business. The Company or a Subsidiary of the Company owns and has good and merchantable title to the Vessels, subject to any Permitted Liens. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, (i) all real estate leasedeach Vessel is currently documented with and has a current and valid certificate of inspection issued by, subleased the United States Coast Guard or occupied by the Company pursuant to a Lease (the "Leased Premises")other applicable Governmental Entity, indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which each Vessel is owned by, and on the Company is Closing Date will be owned by, a party (including all subleases and other Leases through which the Company has granted any interest in any citizen of the Leased PremisesUnited States, or any portion thereofpursuant to 46 U.S.C. §50501, as amended, and such citizen is eligible to any Person). own and operate the Vessel in the coastwise trade of the United States, (diii) The Company (the Vessels are in sufficient condition and no other Person) is in actual occupancy of all Leased Premises leased by it repair and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required adequate for the use, occupancy, occupancy and operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards business of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practiceits Subsidiaries, and (biv) to the inventories included in knowledge of the Final Closing Statement that Company, the improvements situated on the Vessels are finished goods are saleable in the ordinary course free from structural defects and violations of businessLaws applicable thereto.

Assets and Properties. (a) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December 31consolidated balance sheet of the Company and its Subsidiaries as of August 27, 2010 Balance Sheet2005 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December 31August 27, 2010) 2005, except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of their businesses as presently conducted. Except as set forth in Section 4.24(a) of the Company Disclosure Schedule and except as would not have a Company Material Adverse Effect, all of the Company's and its Subsidiaries' buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and properties which it purports to lease, in repair (ordinary wear and tear excepted) for the operation of their businesses as presently conducted. (b) Section 4.24(b) of the Company Disclosure Schedule sets forth the address and description of each case (with parcel of Owned Real Property. With respect to both clause each parcel of Owned Real Property, except as set forth in Section 4.24(b) of the Company Disclosure Schedule: (i) and (ii) above)the Company or its Subsidiaries have fee simple title, free and clear of all Liens except Permitted Liens as of the Closing Date; (ii) neither the Company nor any Liensof its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (iii) there are no outstanding options, other than Permitted Liens. (b) The Company does not own and has never owned rights of first offer or rights of first refusal to purchase such Owned Real Property or any real propertyportion thereof or interest therein. (c) Section 4.24(c) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete and correct list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has made available to Parent and Acquisition Corp. a complete copy of each such Lease. Neither the Company nor its Subsidiaries are party to any oral Leases. Except as set forth in Section 4.24(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) all real estate leased, subleased or occupied by as to the Company pursuant to a and its Subsidiaries, such Lease (the "Leased Premises")is legal, indicating the ownershipvalid, street address binding, enforceable and use of each of the Leased Premises (in full force and prior uses to the extent known to Parent) and effect in all material respects; (ii) all Leases the transaction contemplated by this Agreement does not require the consent of or notice to which any other party to such Lease, will not result in a material breach of or material default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, or, to the knowledge of the Company, any other party to the Lease is in material breach or material default under such Lease and no event, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) the other party to such Lease is not an affiliate of the Company is a party or any of its Subsidiaries; (including all subleases and other Leases through which v) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vi) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (vii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in Section 4.24(c) of the Company Disclosure Schedule, to none of the Leases contain any Person)capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, "Permitted Liens" shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord's, mechanic's, carrier's, workmen's, repairmen's or other Contract similar Liens arising or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable incurred in the ordinary course of business for amounts which are not due and payable and which would not, individually or in amounts consistent with past practicethe aggregate, have a Material Adverse Effect on the business of the Company and its Subsidiaries as currently conducted thereon, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ownership or use of the properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties, and (biii) the inventories included in the Final Closing Statement liens pursuant to that are finished goods are saleable in the ordinary course of business.certain loan agreement with The CIT Group/Business Credit, Inc.

Assets and Properties. (ai) The Company has (i) good and marketable title to to, or a valid leasehold interest or interest as a licensee in, the properties and assets used or held for use by it, located on its Premises, or shown on the Latest Balance Sheet or acquired after the date thereof. Except as provided in Exhibit 3.1(g)(i), as of the Closing, all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in Acquired Assets will be owned by the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above)Company, free and clear of all Encumbrances except for the Retained Liabilities. Since June 30, 1999, the Company has not entered into any Lienscontract or made any commitment to sell all or any part of its assets. The Acquired Assets constitute all of the real, other than Permitted Liens. (b) The Company does not own personal and has never owned any real mixed assets and property. (c) Schedule 6.9(c) contains a true, complete both tangible and correct list of (i) all real estate leasedintangible, subleased including Intellectual Property, which are being used or occupied held for use by the Company pursuant to a Lease (in the "Leased Premises"), indicating the ownership, street address and use of each conduct of the Leased Premises (business and prior uses to operations of the extent known to Parent) Company, consistent with historical and (ii) current practices. The Company owns or leases all Leases to which the Company is a party (including all subleases equipment and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate tangible assets necessary for the conduct of the Business its business as it is being presently conducted as of the date hereof and as it will presently proposed to be conducted through conducted. Each such tangible asset material to the Closing Date. (f) All of the material tangible Assets are adequately Company's operations has been maintained in accordance with normal industry practice and are is in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable subject to normal wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are tear). All leases of such quality as to meet the quality control standards of real property between the Company and any applicable governmental quality control standard and Shareholder, officer or director or any relative or affiliate thereof are usable on fair market terms (including rent at fair market value). None of the Shareholders, nor any relative or affiliate thereof, own any asset, tangible or intangible, which is used in the ordinary course business of business the Company, other than real property leased to the Company at fair market value which leases are disclosed in amounts consistent Schedule 3.1(h). (ii) The Premises constitute all of the real property, buildings and improvements used by the Company in its business. To the best knowledge of the Shareholders, the Premises have been occupied, operated and maintained by the Company in accordance with past practiceapplicable Legal Requirements. The Company has not received notice of violation of any Legal Requirement or Permit relating to its operations or its owned or leased properties. (iii) No party to any lease with respect to any Premises has repudiated any provision thereof, and (b) the inventories included there are no disputes, oral agreements or forbearance programs in the Final Closing Statement that are finished goods are saleable in the ordinary course of businesseffect as to any such lease.

Assets and Properties. (a) The Company has Except as set forth in Section 7.13 of the Seller Disclosure Letter and the real property subject to the Belterra Park Purchase Agreement (i) either the Companies or a Subsidiary of the Companies has good and marketable title valid title, and as of the Closing Date will have good and valid title, subject only to all of its assets and properties (whether real, personal or mixed, or tangible or intangibleA) which it purports to own Permitted Liens (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed Permitted Closing Liens) that will be released and extinguished at or prior to the Closing Date, (B) Permitted Closing Liens, and (C) any encumbrances and obligations that run with the land (including, but not limited to, easements and right-of-way agreements), to each material real property owned by any of in the ordinary course Companies or any of business consistent with past practices since December 31their Subsidiaries (such owned property collectively, 2010the “Companies Owned Real Property”) and (ii) either the Companies or a Subsidiary of the Companies has a good and valid leasehold interests in all interest, and as of its assets the Closing Date, the Companies or a Subsidiary of the Companies will have good and properties which it purports to leasevalid leasehold interest, in each case material lease, material sublease and other material agreement under which the Companies or any of their Subsidiaries uses or occupies or has the right to use or occupy any real property (with respect to both clause including real property at which operations of the Companies or any of their Subsidiaries are conducted) (i) such property, collectively, the “Company Leased Real Property” and (ii) abovesuch leases, subleases and other agreements are, collectively, the “Company Real Property Leases”), in each case, free and clear of any Liens, all Liens other than (A) Permitted Liens (other than Permitted Closing Liens) that will be released and extinguished on or prior to the Closing Date, (B) Permitted Closing Liens, and (C) any Lien affecting solely the interest of the landlord thereunder. Each Company Real Property Lease is, and after giving effect to the consummation of the transactions contemplated by this Agreement and receipt of any consents required under any Company Real Property Lease from the landlords thereunder, will be, valid, binding and in full force and effect, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. Except as set forth in Section 7.13 of the Seller Disclosure Letter, no uncured default of a material nature on the part of any Company or, if applicable, its Subsidiary or, to the Knowledge of Seller, the landlord or sublandlord thereunder (as applicable), exists under any Company Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 7.13(a) of the Seller Disclosure Letter sets forth a correct and complete list, as of the date hereof, of the Company Owned Real Property and the Company Leased Real Property. (b) The Company does not own Other than the Belterra Park Purchase Agreement and has never owned any real property. (c) Schedule 6.9(c) contains a truethe transactions contemplated therein, complete and correct list of (i) all real estate leasedthere are no material leases, subleased subleases, licenses, rights or occupied other agreements affecting any portion of the Company Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company pursuant to a Lease (or its Subsidiaries in the "Leased Premises"), indicating the ownership, street address and use operation of each of the Leased Premises (and prior uses to the extent known to Parent) its business thereon; and (ii) all Leases there are no material outstanding options or rights of first refusal in favor of any other party to which the purchase any Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, Owned Real Property or any portion thereof, thereof or interest therein that would reasonably be expected to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and adversely affect the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to existing use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable Owned Real Property by the Company in the ordinary course operation of its business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessthereon.

Assets and Properties. (a) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December 31consolidated balance sheet of the Company and its Subsidiaries as of August 27, 2010 Balance Sheet2005 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December 31August 27, 2010) 2005, except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of their businesses as presently conducted. Except as set forth in SECTION 4.24(A) of the Company Disclosure Schedule and except as would not have a Company Material Adverse Effect, all of the Company's and its Subsidiaries' buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and properties which it purports to lease, in repair (ordinary wear and tear excepted) for the operation of their businesses as presently conducted. (b) SECTION 4.24(B) of the Company Disclosure Schedule sets forth the address and description of each case (with parcel of Owned Real Property. With respect to both clause each parcel of Owned Real Property, except as set forth in SECTION 4.24(B) of the Company Disclosure Schedule: (i) and (ii) above)the Company or its Subsidiaries have fee simple title, free and clear of all Liens except Permitted Liens as of the Closing Date; (ii) neither the Company nor any Liensof its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (iii) there are no outstanding options, other than Permitted Liens. (b) The Company does not own and has never owned rights of first offer or rights of first refusal to purchase such Owned Real Property or any real propertyportion thereof or interest therein. (c) SECTION 4.24(C) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete and correct list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has made available to Parent and Acquisition Corp. a complete copy of each such Lease. Neither the Company nor its Subsidiaries are party to any oral Leases. Except as set forth in SECTION 4.24(C) of the Company Disclosure Schedule, with respect to each of the Leases: (i) all real estate leased, subleased or occupied by as to the Company pursuant to a and its Subsidiaries, such Lease (the "Leased Premises")is legal, indicating the ownershipvalid, street address binding, enforceable and use of each of the Leased Premises (in full force and prior uses to the extent known to Parent) and effect in all material respects; (ii) all Leases the transaction contemplated by this Agreement does not require the consent of or notice to which any other party to such Lease, will not result in a material breach of or material default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, or, to the knowledge of the Company, any other party to the Lease is in material breach or material default under such Lease and no event, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) the other party to such Lease is not an affiliate of the Company is a party or any of its Subsidiaries; (including all subleases and other Leases through which v) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vi) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (vii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in SECTION 4.24(C) of the Company Disclosure Schedule, to none of the Leases contain any Person)capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, "PERMITTED LIENS" shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord's, mechanic's, carrier's, workmen's, repairmen's or other Contract similar Liens arising or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable incurred in the ordinary course of business for amounts which are not due and payable and which would not, individually or in amounts consistent with past practicethe aggregate, have a Material Adverse Effect on the business of the Company and its Subsidiaries as currently conducted thereon, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ownership or use of the properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties, and (biii) the inventories included in the Final Closing Statement liens pursuant to that are finished goods are saleable in the ordinary course of business.certain loan agreement with The CIT Group/Business Credit, Inc.

Assets and Properties. (a) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December consolidated balance sheet of the Company and its Subsidiaries as of January 31, 2010 Balance Sheet2007 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December January 31, 2010) 2007, except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of their businesses as presently conducted. Except as set forth in Section 3.24(a) of the Company Disclosure Schedule and except as would not have a Company Material Adverse Effect, all of the Company’s and its Subsidiaries’ buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and repair (ordinary wear and tear excepted) in all material respects for the operation of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Lienstheir businesses as presently conducted. (b) The Neither the Company does not own and has never owned nor any real propertyof its Subsidiaries owns any Owned Real Property. (c) Section 3.24(c) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has made available to Parent and Acquisition Corp. a complete and correct list accurate copy of each such Lease. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, neither the Company nor its Subsidiaries are party to any oral Leases. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) all real estate leased, subleased or occupied by as to the Company pursuant to a and its Subsidiaries, such Lease (the "Leased Premises")is legal, indicating the ownershipvalid, street address binding, enforceable and use of each of the Leased Premises (in full force and prior uses to the extent known to Parent) and effect in all material respects; (ii) all Leases the Transactions do not require the consent of or notice to which any other party to such Lease, will not result in a breach of or default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, nor, to the knowledge of the Company, any other party to the Lease is in material breach or default under such Lease and neither the Company nor any of its Subsidiaries is aware of any event, which has occurred which, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) to the knowledge of the Company, no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not be redeposited in full; (v) the other party (including all subleases and other Leases through which to such Lease is not an affiliate of the Company or any of its Subsidiaries; (vi) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vii) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (viii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, to none of the Leases contains any Person)material capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, “Permitted Liens” shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other Contract similar Liens arising or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable incurred in the ordinary course of business in for amounts consistent with past practicewhich are not due and payable and which would not, and (b) the inventories included individually or in the Final Closing Statement that are finished goods are saleable in aggregate, reasonably be expected to be material, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ordinary course ownership or use of businessthe properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties or (iii) liens granted under the Credit Agreement.

Assets and Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company has (i) Material Adverse Effect, the Company and each of its Subsidiaries are in possession of and have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all or valid rights under contract to use, the machinery, equipment, furniture, fixtures, and other tangible personal property and assets owned, leased, or used by the Company or any of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above)Subsidiaries, free and clear of any Liens, all Liens other than Permitted Liens. (b) The Except as would not, individually or in the aggregate, reasonably be expected to have a Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a trueMaterial Adverse Effect, complete and correct list the assets of the Company (i) all real estate leasedhave been maintained and repaired in the Ordinary Course of Business, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company are in such condition and repair, reasonable wear and tear excepted, as is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises suitable for the purposes for which they are currently being usedpresently used by the Company, and (iii) are free from material defects (patent and latent). (ec) All existing waterThe Company owns no, sewerand has never owned any, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Datereal property. (fd) All The real property leased or demised by the leases described on Section 3.07(d) of the Company Disclosure Schedule (the “Leased Real Property”) constitutes all of the real property used, occupied or leased by the Company. Except as set forth on Section 3.07(d) of the Company Disclosure Schedule, the Leased Real Property leases are in full force and effect, and the Company holds a valid and existing leasehold interest in the Leased Real Property under each such lease. The Company has delivered or made available to Parent true, correct and complete copies of each of the leases described on Section 3.07(d) of the Company Disclosure Schedule, and none of such leases has been modified in any respect, except to the extent that such modifications are disclosed by the copies delivered or made available to Parent. Neither the Company nor, to the Company’s knowledge, any other party to the Leased Real Property leases, is in default in any material respect under any of such leases. No event has occurred which, if not remedied, would result in a default by the Company in any material respect under the Leased Real Property leases and, to the Company’s knowledge, no event has occurred which, if not remedied, would result in a default by any party other than the Company in any material respect under the Leased Real Property leases. To the Company’s knowledge, the Leased Real Property and all of the material tangible Assets are adequately maintained fixtures and improvements thereon are in good operating condition and repair and free from any without material defects (including latent structural defects and adverse physical conditions)are suitable, reasonable wear sufficient and tear exceptedappropriate for their current uses. To the Company’s knowledge, the use and are suitable for operation of the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included Leased Real Property in the Final Closing Statement are of such quality as to meet the quality control standards conduct of the Company and Company’s business do not violate any applicable governmental quality control standard and Law, Order, covenant, condition, restriction, easement, license, Permit, agreement, Contract or right of any Person. To the Company’s knowledge, no material improvements constituting a part of the Leased Real Property encroach on real property owned or leased by another Person. There are usable no Actions pending nor, to the Company’s knowledge, threatened against or affecting the Leased Real Property or any portion thereof or interest therein in the ordinary course nature or in lieu of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businesscondemnation or eminent domain proceedings.

Assets and Properties. To Seller’s knowledge: (a) The Schedule 4.13(a) includes a description of all real property and mining claims held by the Company has or Rock Creek, including all (i) good patented mining claims and marketable title to all other fee interests in real property held by the Company and forming part of its assets the Hollister Mine (collectively, the “Hollister Fee Properties”), patented mining claims and properties other fee interests in real property held by the Company and forming part of the ▇▇▇▇▇▇▇▇▇ Mine (whether realcollectively, personal or mixedthe “▇▇▇▇▇▇▇▇▇ Fee Properties”) and fee interests in real property held by Rock Creek (collectively, or tangible or intangiblethe “Rock Creek Fee Properties” and, together with the Hollister Fee Properties and the ▇▇▇▇▇▇▇▇▇ Fee Properties, collectively, the “Fee Properties”), (ii) which it purports to own unpatented mining claims held by the Company and forming part of the Hollister Mine (including all assets collectively, the “Hollister Unpatented Claims”) and properties recorded on unpatented mining claims held by the December 31Company and forming part of the ▇▇▇▇▇▇▇▇▇ Mine (collectively, 2010 Balance Sheetthe “▇▇▇▇▇▇▇▇▇ Unpatented Claims” and together with the Hollister Unpatented Claims, other than inventories disposed of in collectively, the ordinary course of business consistent with past practices since December 31, 2010“Unpatented Claims”) and (iiiii) valid leasehold interests in all real property, including fee interests and patented and unpatented mining claims, held by the Company and forming part of its assets and properties which it purports to leasethe Hollister Mine (collectively, in each case (with respect to both clause (ithe “Hollister Leasehold Interests”) and leasehold interests in real property, including fee interests and patented and unpatented mining claims, held by the Company and forming part of the ▇▇▇▇▇▇▇▇▇ Mine (ii) abovecollectively, the “▇▇▇▇▇▇▇▇▇ Leasehold Interests” and together with the Hollister Leasehold Interests, collectively, the “Leasehold Interests”). The Fee Properties, free the Unpatented Claims and clear of the Leasehold Interests are referred to collectively in this Agreement as the “Properties”. Rock Creek does not hold any Lienspatented mining claims, other than Permitted Liensunpatented mining claims or leasehold interests in real property. (b) The Company does not own and has never owned Leasehold Interests are leased pursuant to the leases (including any real propertyamendments or modifications thereof) described on Schedule 4.13(b) (the “Property Leases”). (c) Schedule 6.9(c4.13(b) contains includes a truedescription of all royalties, complete overriding royalties, net profit interests and correct list payments on or out of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases production to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person)Properties is subject. (d) The Schedule 4.13(c) includes a description of all material water rights held by the Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and collectively, the Company enjoys peaceful and undisturbed possession thereof“Water Rights”). There are no restrictions imposed by Rock Creek does not hold any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being usedmaterial Water Rights. (e) All existing waterSchedule 4.13(d) identifies, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof hereof, each asset, piece of equipment, vehicle and as it will be conducted through other tangible property and property, other than interests in real property, owned or leased by the Closing DateCompany that, to Seller’s knowledge, has a fair market value of at least $25,000 (the “Moveable Assets”). Rock Creek does not own any material assets or properties, other than interests in real property. (f) All easements and rights of way that are material to the material tangible Assets Company’s and Rock Creek’s conduct of operations as currently conducted are adequately maintained identified at Schedule 4.13(f) and are valid and in good operating condition full force and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being usedeffect. (g) The inventories (other than inventory for which a reserve has been provided) included Except as disclosed in Schedule 4.13(g), there are no material farm-in or earn-in rights, back-in rights, rights of first refusal, rights of first offer, option rights, or area of interest rights affecting the Final Closing Statement are of such quality as to meet Properties or the quality control standards assets of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessor Rock Creek.

Assets and Properties. (ai) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December 31consolidated balance sheet of the Company and its Subsidiaries as of September 24, 2010 Balance Sheet2005 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices practice since December 31September 24, 20102005, except for Liens set forth on Section 4.01(q)(i) of the Company Disclosure Schedule, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use, in all of its assets and properties which it purports to leasematerial respects, in each case (with respect to both clause (i) and (ii) above)all assets, free and clear of any Lienstangible or intangible, other than Permitted Liens. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate necessary for the conduct of the Business their businesses as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) presently conducted. All of the material Company’s and its Subsidiaries’ buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible Assets assets (whether owned or leased) are adequately maintained in structurally sound and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable ordinary wear and tear excepted, and are suitable ) for the uses for which they are being usedoperation of their businesses as presently conducted, except to the extent such failures that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (gii) The inventories Section 4.01(q)(ii) of the Company Disclosure Schedule sets forth the address and description of each parcel of Owned Real Property. With respect to each parcel of Owned Real Property, (i) the Company or its Subsidiaries have good and marketable fee simple title, free and clear of all Liens except Permitted Liens and except for Liens set forth on Section 4.01(q)(ii) of the Company Disclosure Schedule; (ii) neither the Company nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein; (iv) all aspects of such Owned Real Property are in compliance in all material respects with any and all of the restrictions and other than inventory for which a reserve has been provided) provisions included in the Final Closing Statement Permitted Liens, and there are no matters that create, or that with notice or the passage of time would create, a material default under any of the documents evidencing the Permitted Liens; (v) there exists no material conflict or dispute with any regulatory agency or other Person relating to such Owned Real Property or the activities thereon; and (vi) there are no condemnation proceedings pending or, to the Company’s knowledge, threatened with respect to any portion of such quality Owned Real Property. Neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein. (iii) Section 4.01(q)(iii) of the Company Disclosure Schedule sets forth the address of each parcel of Leased Real Property, and a true, correct and complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document and the expiration date of each Lease). The Company has made available to Acquirer and Merger Sub a true, correct and complete copy of each such Lease. Neither the Company nor its Subsidiaries are party to any oral Leases. With respect to each of the Leases: (i) as to meet the quality control standards Company and its Subsidiaries, such Lease is legal, valid, binding, enforceable and in full force and effect in all material respects; (ii) the transaction contemplated by this Agreement does not require the consent of or notice to any other party to such Lease, will not result in a material breach of or material default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, or, to the knowledge of the Company, any other party to the Lease is in material breach or material default under such Lease and no event has occurred which, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) the other party to such Lease is not an Affiliate of the Company or any of its Subsidiaries; (v) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any Person the contractual right to use or occupy such Leased Real Property or any portion thereof; (vi) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; (vii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens and except as set forth on Section 4.01(q)(iii) of the Company Disclosure Schedule; (viii) all aspects of the Leased Real Property are in compliance in all material respects with any and all of the restrictions and other provisions included in the Permitted Liens, and there are no matters that create, or that with notice or the passage of time would create, a material default under any of the documents evidencing the Permitted Liens; (ix) there are no condemnation proceedings pending or, to the Company’s knowledge, threatened with respect to any portion of the Leased Real Property. None of the Leases contain any capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. To the knowledge of the Company, each of the Company and any applicable governmental quality control standard and are usable its Subsidiaries has all permits or licenses necessary to use its Leased Real Property, except where the failure to obtain such permits or licenses would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (iv) As used in this Agreement, the term “Permitted Liens” means (i) statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other similar Liens arising or incurred in the ordinary course of business in amounts consistent with past practicepractice for amounts (x) which are not due and payable, (y) that are not more than $500,000 in amount, individually, as to any Owned Real Property or Leased Real Property, or (z) that are not more than $5,000,000 in amount, in the aggregate as to all Owned Real Property and Leased Real Property, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ownership or use of the properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties, and (biii) Liens pursuant to (x) the inventories included in Fifth Amended and Restated Loan Agreement, as amended, dated as of June 29, 2001, by and among the Final Closing Statement that are finished goods are saleable in Company, Citizens Bank of Massachusetts, HSBC Bank USA, National Association, and TD Banknorth, N.A. (the ordinary course “Loan Agreement”), (y) the Mortgage, Assignment of businessRents and Security Agreement, dated as of March 1, 1999, as amended, by and between Birch Pond Realty Corporation and ▇▇▇▇ ▇▇▇▇▇▇▇ Real Estate Finance, Inc., (the “▇▇▇▇▇▇ Facility Loan”), and (z) the Master Security Agreement, dated as of December 23, 1998, as amended, by and between DM Management Company and Citizens Leasing Corporation, and the related Secured Promissory Note No. 5, dated May 30, 2003 (collectively, the “Security Agreement”).

Assets and Properties. (a) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December consolidated balance sheet of the Company and its Subsidiaries as of July 31, 2010 Balance Sheet2006 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December July 31, 2010) 2006, except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of their businesses as presently conducted. Except as set forth in Section 3.24(a) of the Company Disclosure Schedule and except as would not have a Company Material Adverse Effect, all of the Company’s and its Subsidiaries’ buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and repair (ordinary wear and tear excepted) in all material respects for the operation of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Lienstheir businesses as presently conducted. (b) The Neither the Company does not own and has never owned nor any real propertyof its Subsidiaries owns any Owned Real Property. (c) Section 3.24(c) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has made available to Parent and Acquisition Corp. a complete and correct list accurate copy of each such Lease. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, neither the Company nor its Subsidiaries are party to any oral Leases. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) all real estate leased, subleased or occupied by as to the Company pursuant to a and its Subsidiaries, such Lease (the "Leased Premises")is legal, indicating the ownershipvalid, street address binding, enforceable and use of each of the Leased Premises (in full force and prior uses to the extent known to Parent) and effect in all material respects; (ii) all Leases the Transactions do not require the consent of or notice to which any other party to such Lease, will not result in a breach of or default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, nor, to the knowledge of the Company, any other party to the Lease is in material breach or default under such Lease and neither the Company nor any of its Subsidiaries is aware of any event, which has occurred which, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) to the knowledge of the Company, no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not be redeposited in full; (v) the other party (including all subleases and other Leases through which to such Lease is not an affiliate of the Company or any of its Subsidiaries; (vi) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vii) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (viii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, to none of the Leases contains any Person)material capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, “Permitted Liens” shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other Contract similar Liens arising or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable incurred in the ordinary course of business in for amounts consistent with past practicewhich are not due and payable and which would not, and (b) the inventories included individually or in the Final Closing Statement that are finished goods are saleable in aggregate, reasonably be expected to be material, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ordinary course ownership or use of businessthe properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties or (iii) liens granted under the Credit Agreement.

Assets and Properties. (a) The Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or a Subsidiary of the Company has (i) good good, marketable and marketable valid title to, free and clear of all Liens, or holds pursuant to valid and enforceable leases or license, all of its the tangible personal property and assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded that are reflected on the December 31most recent balance sheet included in the Company Financial Statements or acquired after the date of such balance sheet, 2010 Balance Sheet, other than inventories disposed subject to Permitted Liens and except for dispositions of such property and assets by the Company or a Subsidiary of the Company in the ordinary course of business consistent with past practices since December 31practice. The machinery, 2010equipment, furniture, fixtures and other tangible personal property and assets owned, leased or used by the Company or any of its Subsidiaries are, together with the contemplated capital expenditures set forth in the Company’s fiscal 2015 budget and capital expenditure plan (the “Company 2015 Budget”) (copies of which have been made available to Parent), in the aggregate, sufficient and adequate to carry on their respective businesses in all material respects as presently conducted, and the Company and its Subsidiaries are in possession of and have good title to, or valid leasehold interests in or valid rights under contract to use, such assets that are material to the Company and its Subsidiaries, taken as a whole, free and clear of all Liens other than Permitted Liens, except in each case as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) either the Company or a Subsidiary of the Company has good and valid title to each material real property (and each real property at which material operations of the Company or any of its Subsidiaries are conducted) owned by the Company or any Subsidiary, other than Company Real Property Leases (such owned property collectively, the “Company Owned Real Property”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interests interest in all each material lease, sublease and other agreement under which the Company or any of its assets Subsidiaries uses or occupies or has the right to use or occupy any material real property (or real property at which material operations of the Company or any of its Subsidiaries are conducted) (such property subject to a lease, sublease or other agreement, the “Company Leased Real Property” and properties which it purports to leasesuch leases, subleases and other agreements are, collectively, the “Company Real Property Leases”), in each case (with respect to both clause (i) and (ii) above)case, free and clear of all Liens other than any Permitted Liens, and other than Permitted Liens. any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of the real property subject thereto by the owner (bor lessee to the extent a leased property) The thereof in the operation of its business. Except as has not had and would not have, individually or in the aggregate, a Company does not own Material Adverse Effect, (A) each Company Real Property Lease is valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions and (B) no uncured default of a material nature on the part of the Company or, if applicable, its Subsidiary or, to the knowledge of the Company, the landlord thereunder, exists under any Company Real Property Lease, and no event has never owned any real propertyoccurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 3.17(b) of the Company Disclosure Schedule sets forth a correct and complete list, as of the date hereof, of the Company Owned Real Property and the Company Leased Real Property. (c) Schedule 6.9(c) contains Except as has not had and would not have, individually or in the aggregate, a trueCompany Material Adverse Effect, complete and correct list of (i) all real estate leasedthere are no leases, subleased subleases, licenses, rights or occupied other agreements granting any person the right to use or occupy any material portion of the Company Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company pursuant to a Lease (or its Subsidiaries in the "Leased Premises")operation of its business thereon, indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which except for such arrangements solely among the Company is a and its Subsidiaries or among the Company’s Subsidiaries, there are no outstanding options or rights of first refusal in favor of any other party (including all subleases and other Leases through which the to purchase any Company has granted any interest in any of the Leased Premises, Owned Real Property or any portion thereof, thereof or interest therein that would reasonably be expected to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and adversely affect the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to existing use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable Owned Real Property by the Company in the ordinary course operation of its business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessthereon.

Assets and Properties. (a) The Company has (i) good and marketable title to all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Liens. (b) The Company Subsidiary does not own and to the Company’s knowledge has never owned any real property. (b) Section 4.16(b) of the Company Disclosure Letter sets forth (a) the address of all Leased Real Property (b) the identification of the lease, license, sublease or other occupancy agreements and all amendments, modifications, supplements, and assignments thereto, together with all exhibits, addendum, riders and other documents constituting a part thereof where the Company or any Company Subsidiary is the tenant or subtenant of any real property (collectively, the “Leases”), (c) Schedule 6.9(cthe identity of the lessor, lessee, and current occupant (if different than the lessee) contains a trueof the applicable Leased Real Property, complete and correct list (d) the length of term for the tenancy (without consideration of renewal or termination options). Except as set forth in Section 4.16(b) of the Company Disclosure Letter, with respect to each of the Leases: (i) subject to the Enforceability Exception, such Lease is legally valid, binding, enforceable and in full force and effect and there are no material disputes with respect to such Lease; (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, or otherwise permit any landlord to terminate, recapture or accelerate rent or cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing; (iii) neither the Company or Company Subsidiary is in breach or default under such Lease, and, to the knowledge of the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease; and (iv) the Company or a Company Subsidiary has a good and valid title to a leasehold estate in each Leased Real Property. True correct and complete copies of the Leases have been delivered to or made available to Parent and Sub. The Leased Real Property constitutes all of the real estate leased, subleased property used or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the any Company is a party (including all subleases and other Leases through which the Company has granted any interest Subsidiary in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for connection with the conduct of the Business as it is being conducted as business of the date hereof Company and any Company Subsidiary as it will be conducted through the Closing Datecurrently operated and is sufficient therefore. (fc) All Each of the Company and the Company Subsidiaries has title to, or a valid leasehold interest in, as applicable, all personal property used by them in their respective businesses free and clear of any Liens, except for Permitted Liens. Such personal property and Leased Real Property (taken as a whole) is in all material tangible Assets are adequately maintained and are respects in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)repair, reasonable ordinary wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of business.

Assets and Properties. (a) The Company has (i) good and marketable valid right, title and interest in and to or, in the case of leased properties or properties held under license, good and valid leasehold or license interests in, all of its assets and properties, including, but not limited to, all of the machinery, equipment, terminals, computers, vehicles, and all other assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including reflected in the Latest Balance Sheet and all of the assets purchased or otherwise acquired since the date of the Latest Balance Sheet, except those assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) after the date of the Latest Balance Sheet. The Company holds title to each such property and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), asset free and clear of any all Liens, other than except Permitted Liens. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) current use and operation of all real estate leasedproperty is in compliance with all Applicable Laws (including without limitation laws relating to parking, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address zoning and use of each of the Leased Premises (and prior uses to the extent known to Parentland use) and public and private covenants and restrictions except where non-compliance would not be reasonably likely to have a Material Adverse Effect on the Company, (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted not received written notice of noncompliance with any interest in any Applicable Laws and (iii) utilities, access and parking, if any, for each such real property are adequate for the current use and operation of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereofeach such real property. There are no restrictions imposed by any Lease zoning, building code, occupancy restriction or other Contract land-use regulation proceedings or any proposed change in any Applicable Laws, which could materially detrimentally affect the use or operation by Law which preclude the Company of any real property, nor has the Company received any written notice of any special assessment proceedings affecting the real property, or restrict applied for any change to the ability to zoning or land use status of the Leased Premises real property. The Company has obtained all licenses, permits, approvals, easements and rights of way (and all such items are currently in full force and effect) required from any Governmental Authority having jurisdiction over each real property or from private parties for the purposes for which they are currently being used. (ecurrent use and operation of each real property except where the failure to obtain such licenses, permits, approvals, easements and rights of way would not be reasonably likely to have a Material Adverse Effect on the Company. Neither the Company, nor any Subsidiary is a foreign person, as the term foreign person is defined in Section 1445(f)(3) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing DateCode. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of business.

Assets and Properties. Section 3.17.1 Neither the Company nor any Company Subsidiary owns any real property. Except as set forth in Section 3.17 of the Company Disclosure Schedule, each of the Company and the Company Subsidiaries has a valid leasehold interest in all of its leased real property (aincluding all rights and privileges pertaining or relating thereto) The free and clear of any and all liens, except for liens, defects or failures to be in full force and effect which, individually or in the aggregate, would not reasonably be expected to have a Company has Material Adverse Effect and except for Permitted Liens. Each of the foregoing real property leases (i) good constitutes a legally valid and marketable title binding obligation of the Company or Company Subsidiary party thereto and assuming such lease is a legally valid and binding obligation of, and enforceable against, the other parties thereto, is enforceable against the Company or the Company Subsidiary party thereto, in each case, except as may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar Laws relating to all or affecting the rights and remedies of its assets creditors and properties (by general principles of equity regardless of whether real, personal considered in a proceeding at law or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) equity; and (ii) to the Company’s knowledge is a legally valid leasehold interests and binding obligation of the other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar Laws relating to or affecting the rights and remedies of creditors and by general principles of equity regardless of whether considered in all of its assets a proceeding at law or in equity, and properties which it purports to leaseexcept, in each case (with respect to both clause clauses (i) and (ii) above), as has not had or would not reasonably be expected to have a Company Material Adverse Effect. Except as have not had or would not reasonably be expected to have a Company Material Adverse Effect, (a) none of the Company or the Company Subsidiaries is in breach or default under any such lease and (b) to the Company’s knowledge, none of the landlords or sublandlords under any such lease is in material breach or default of its obligations under such lease. Except as has not had a Company Material Adverse Effect, the Company and the Company Subsidiaries enjoy peaceful and undisturbed possession under each such lease. Copies of all such leases together with any amendments thereto have heretofore been made available to Parent. Section 3.17.2 Each of the Company and the Company Subsidiaries has title to, or a valid leasehold interest in, as applicable, all personal property used in their respective businesses free and clear of any Liensand all liens, other than except for liens, defects in title or failures to be in full force and effect which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and except for Permitted Liens. (b) The Company does not own . Such personal property and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and property are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)repair, reasonable ordinary wear and tear and deferred maintenance excepted, and are suitable except for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included such failures to be in good operating condition and repair which, individually or in the Final Closing Statement are of such quality as aggregate, would not reasonably be expected to meet the quality control standards of the have a Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessMaterial Adverse Effect.

Assets and Properties. (a) The Except as set forth in Section 3.16 of the Company Disclosure Letter, and except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (i) either the Company or a Subsidiary of the Company has good and marketable valid title to all each real property owned by the Company or any Subsidiary of its assets and properties the Company (whether realsuch owned property collectively, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010“Company Owned Real Property”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interests interest in all each lease, sublease and other agreement under which the Company or any of its assets Subsidiaries uses or occupies or has the right to use or occupy any real property (including real property at which operations of the Company or any of its Subsidiaries are conducted) (such property, the “Company Leased Real Property” and properties which it purports to leasesuch leases, subleases and other agreements are, collectively, the “Company Real Property Leases”), in each case (with respect to both clause (i) and (ii) above)case, free and clear of any Liens, all Liens other than any Permitted LiensLiens and, with respect to (ii), except for those reflected or reserved against in the balance sheet of the Company as of December 31, 2016 and included in the Company SEC Documents. Each Company Real Property Lease is valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions. No uncured default of a material nature on the part of the Company or, if applicable, its Subsidiary or, to the knowledge of the Company or of the landlord thereunder (as applicable), exists under any Company Real Property Lease, and, to the knowledge of the Company, no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 3.16(a) of the Company Disclosure Letter sets forth a correct and complete list, as of the date of this Agreement, of the Company Owned Real Property and the Company Leased Real Property. (b) The There are no leases, subleases, licenses, rights or other agreements affecting any portion of the Company does not own and has never owned Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect in any real propertymaterial respect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company or any of its Subsidiaries in the operation of its business thereon. There are no outstanding options or rights of first refusal in favor of any other party to purchase any Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property by the Company or any of its Subsidiaries in the operation of its business thereon. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Company Owned Real Property or Company Leased Real Property that would reasonably be expected to adversely affect in any material respect the existing use of such Company Owned Real Property or Company Leased Real Property in the operation of the business conducted thereon as currently conducted. (c) Schedule 6.9(c) contains No circumstances exist that would provide the basis for a true, complete and correct list of (i) all real estate leased, subleased or occupied by valid claim against the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or party under Article VI of that certain Project Agreement by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of between the Company and any applicable governmental quality control standard and are usable in the ordinary course Consolidated City of business in amounts consistent with past practiceIndianapolis, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course dated as of businessOctober 21, 2011.

Assets and Properties. (a) The Company has (i) and AVP Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a legal, valid, binding, enforceable and in full force and effect leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December 31consolidated balance sheet of Company and AVP Subsidiaries as of the date hereof or acquired after the date thereof, 2010 Balance Sheet, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December 31the date hereof, 2010) except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). Company and AVP Subsidiaries own, have a valid leasehold interests in interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of its assets their businesses as presently conducted. All of Company’s and properties which it purports to leaseAVP Subsidiaries’ buildings (including all components of such buildings, in each case (with respect to both clause (i) structures and (ii) aboveother improvements), free and clear all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and repair (ordinary wear and tear excepted) for the operation of any Liens, other than Permitted Lienstheir businesses as presently conducted. (b) The Neither Company does not own and has never owned nor any AVP Subsidiary owns any real property. (c) Section 3.24(c) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete and correct list of all Leases (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for each such Leased Real Property (including the date and name of the parties to such Lease document) used or intended to be used in or otherwise related to the business. Company has made available to Parent and Acquisition Corp. a complete copy of each such Lease. Neither Company nor any AVP Subsidiary are party to any oral Leases. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) as to Company and AVP Subsidiaries, such Lease is legal, valid, binding, enforceable and in full force and effect in all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and material respects; (ii) all Leases the transaction contemplated by this Agreement does not require the consent of or notice to which any other party to such Lease, will not result in a material breach of or material default under such Lease, will not give rise to any recapture or similar rights, 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) none of Company, AVP Subsidiaries, or, to Company’s Knowledge, any other party to the Lease is in material breach or material default under such Lease and no event, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) the other party to such Lease is not an Affiliate of Company is a party or any AVP Subsidiary; (including all subleases and other Leases through which the v) neither Company nor any AVP Subsidiary has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vi) neither Company nor any AVP Subsidiary has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (vii) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in Section 3.24(c) of the Company Disclosure Schedule, to none of the Leases contain any Person)capital expenditure requirements or remodeling obligations of Company or any AVP Subsidiary other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, “Permitted Liens” shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other Contract similar Liens arising or by Law incurred in the ordinary course of business for amounts which preclude are not due and payable and which would not, individually or restrict in the ability to use the Leased Premises for the purposes aggregate, have a Company Material Adverse Effect and for which they are currently being used. appropriate reserves have been established by Company in accordance with GAAP, (eii) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as Liens relating to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable deposits made in the ordinary course of business in amounts consistent connection with past practiceworkers’ compensation, unemployment insurance and other types of social security or to secure the performance of leases, trade contracts or other similar agreements, (iii) Liens securing executory obligations under any lease that constitutes an “operating lease,” (iv) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ownership or use of the properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties and (bv) Liens for taxes or governmental assessments, charges or claims the inventories included payment of which is not yet due, or Liens for taxes the validity of which are being contested in the Final Closing Statement that are finished goods are saleable good faith by appropriate proceedings and as to which appropriate reserves have been established by Company in the ordinary course of businessaccordance with GAAP.

Assets and Properties. (ai) The Company has (i) good and marketable title to to, or a valid leasehold interest or interest as a licensee in, the properties and assets used or held for use by it, located on its Premises, or shown on the Latest Balance Sheet or acquired after the date thereof. As of the Closing, all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in Acquired Assets will be owned by the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above)Company, free and clear of any Liensall Encumbrances except for the Assumed Liabilities; provided, however, that PentaStar and the Acquiror hereby acknowledge and agree that the Company has not trademarked its name or "NCI" and has not performed or requested a trademark search. Accordingly, it is possible some other than Permitted Liens. (b) The Person has trademarked the Company name or "NCI" or some form thereof and the Company does not own warrant that there are no other Persons using its name, except that the Company does represent and warrant that it has never owned not granted any real Person the right to use the Company's name or "NCI" or any deviation thereof. Since November 30, 1999, the Company has not entered into any contract or made any commitment to sell all or any part of its assets. The Acquired Assets constitute all of the real, personal and mixed assets and property. (c) Schedule 6.9(c) contains a true, complete both tangible and correct list of (i) all real estate leasedintangible, subleased including Intellectual Property, which are being used or occupied held for use by the Company pursuant to a Lease (in the "Leased Premises"), indicating the ownership, street address and use of each conduct of the Leased Premises (business and prior uses to operations of the extent known to Parent) Company, consistent with historical and (ii) current practices. The Company owns or leases all Leases to which the Company is a party (including all subleases equipment and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate tangible assets necessary for the conduct of its business as presently conducted. Each such tangible asset material to the Business as it Company's operations has been maintained in accordance with normal industry practice and is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable subject to normal wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are tear). All leases of such quality as to meet the quality control standards of real property between the Company and any applicable governmental quality control standard and Shareholder, officer or director or any relative or affiliate thereof are usable on fair market terms (including rent at fair market value). None of the Shareholders, nor any relative or affiliate thereof, own any asset, tangible or intangible, which is used in the ordinary course business of business in amounts consistent with past practicethe Company, and other than real property leased to the Company at fair market value, which leases are set forth on Exhibit 3.1(h). (bii) The Company does not lease the inventories included Premises, but employees of the Company occupy space in the Final Closing Statement that are finished goods are saleable premises of OC Mergerco 2, Inc. in the ordinary course of businessSeattle, Washington.

Assets and Properties. (a) The Section 4.16(a) of the Company has Disclosure Letter sets forth the address of all real property owned by the Company or any Company Subsidiary as of the date of this Agreement (the “Owned Real Property”). With respect to each Owned Real Property, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company or the Company Subsidiary (as the case may be) has good and marketable fee simple title to such Owned Real Property, free and clear of all of its assets and properties (whether realLiens, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and except Permitted Liens; (ii) valid except as set forth in Section 4.16(a) of the Company Disclosure Letter, the Company or the Company Subsidiary has not leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein; and (iv) neither the Company nor any Company Subsidiary is a party to any agreement or option to purchase any real property or interest therein. (b) Section 4.16(b) of the Company Disclosure Letter sets forth the address of all leasehold interests or subleasehold estates held by the Company or any Company Subsidiary as of the date of this Agreement (i) that are operated as restaurants or venues or (ii) with an annual base rent in all excess of its assets $250,000 per year (the “Leased Real Property”). Except as set forth in Section 4.16(b) of the Company Disclosure Letter and properties which it purports except for matters that, individually or in the aggregate, would not reasonably be expected to leasehave a Company Material Adverse Effect, in each case (with respect to both clause each of the Leases: (i) such Lease is legally valid, binding, enforceable and in full force and effect and to the Company’s knowledge, there are no disputes with respect to such Lease; (ii) above)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, or otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing; and (iii) neither the Company or Company Subsidiary is in breach or default under such Lease, and, to the knowledge of the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease. (c) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Company and the Company Subsidiaries has title to, or a valid leasehold interest in, as applicable, all personal property used in their respective businesses free and clear of any Liens, other than except for Permitted Liens. . Such personal property, Owned Real Property and Leased Real Property (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains taken as a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Personwhole) is in actual occupancy of all Leased Premises leased by it good operating condition and the Company enjoys peaceful repair, ordinary wear and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability tear and deferred maintenance excepted, and except for such failures to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)which would not, reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included individually or in the Final Closing Statement are of such quality as aggregate, reasonably be expected to meet the quality control standards of the have a Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessMaterial Adverse Effect.

Assets and Properties. (a) The Section 3.7 of the Disclosure Schedule sets forth a true and complete list of all real property and interests in real property owned (the “Owned Real Property”), leased or subleased (the “Leased Real Property”), by the Company or any of its Subsidiaries as of the date hereof. Prior to the date hereof, the Company has made available to Buyer true and complete copies of all lease and sublease agreements applicable to the Leased Real Property. Except as set forth in Section 3.7 of the Disclosure Schedule or for defects in title (ior other Encumbrances) good or failures to be in full force and marketable effect, none of which, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect, each of the Company and its Subsidiaries has fee simple title to all of its assets and properties (whether real, personal or mixedthe Owned Real Property, or tangible or intangible) which it purports to own a valid, binding and enforceable leasehold interest in the Leased Real Property (including all assets rights, title, privileges and properties recorded on appurtenances pertaining or relating thereto). Neither the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all Company or any of its assets and properties which it purports Subsidiaries nor, to leasethe Company’s knowledge, any other party to any lease or sublease applicable to the Leased Real Property, is in breach or default under such lease or sublease, and, to the Company’s knowledge, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such leases or subleases, in each case (with respect expect as would not, individually or in the aggregate, reasonably be expected to both clause (ihave a Company Material Adverse Effect. Except as disclosed in Section 3.7(a) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted to any Person the right to use or occupy the Owned Real Property or Leased Real Property or any portion thereof. The Owned Real Property and (ii) above), free Leased Real Property comprise all of the real property necessary to operate the businesses of the Company and clear of any Liens, other than Permitted Liensits Subsidiaries in all material respects in the manner currently conducted. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list Each of (i) all real estate leased, subleased or occupied by the Company pursuant and its Subsidiaries has title to, or a leasehold interest in, as applicable, all personal property used in their respective businesses, except for defects in title or failures to be in full force and effect which would not, individually or in the aggregate, reasonably be expected to have a Lease (Company Material Adverse Effect. Such personal property and the "Leased Premises")buildings, indicating the ownership, street address structural elements and use of each fixtures of the Owned Real Property and Leased Premises Real Property (and prior uses to the extent known to Parenttaken as a whole) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)repair, reasonable ordinary wear and tear and excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of business.

Assets and Properties. (a) The Except as would not, individually or in the aggregate, have a Company has Material Adverse Effect, (i) good and marketable the Company or one of its Subsidiaries have valid title to to, or valid leasehold or sublease interests or other comparable contract rights in or relating to, all of its the personal properties and tangible assets necessary and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Liens. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as business of the date hereof Company and its Subsidiaries, taken as it will be conducted through the Closing Date. a whole, as currently conducted, and (fii) All of the material tangible Assets are adequately maintained such properties and assets are in reasonably good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)operating condition, reasonable ordinary wear and tear excepted, and are suitable for the uses for which they are being used. (gb) The inventories (other than inventory for which a reserve has been providedSection 4.14(b) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company Disclosure Schedule sets forth the address and description of each real property currently owned by the Company or any applicable governmental quality control standard of its Subsidiaries (with all easements and are usable other rights appurtenant to such real property, collectively, the “Owned Real Property”). With respect to each Owned Real Property, the Company or one of its Subsidiaries has good and marketable fee simple title to such Owned Real Property, free and clear of all Liens, other than for such customary easements, covenants and restrictions recorded in the ordinary course public records in the county and state where such Owned Real Property located that would not, individually or in the aggregate, have a Company Material Adverse Effect, and for Permitted Liens. (c) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, the Company and its Subsidiaries have a valid leasehold interest in all of business the Leased Real Property free and clear of all Liens (except for Permitted Liens) on the leasehold estate. (d) Except as would not, individually or in amounts consistent with past practicethe aggregate, have a Company Material Adverse Effect, (i) there are no pending or, to the knowledge of the Company, threatened condemnation or eminent domain proceedings that affect any Owned Real Property or Leased Real Property, and (bii) the inventories included in Company has not received any written notice of the Final Closing Statement that are finished goods are saleable in the ordinary course intention of businessany Governmental Entity or other Person to take any Owned Real Property or Leased Real Property.

Assets and Properties. (a) Neither the Company nor any Company Subsidiary owns or has ever owned any real property. Schedule 2.12(a) to the Disclosure Letter identifies each parcel of real property leased, occupied, or otherwise used by the Company or any Company Subsidiary (the “Company Real Estate”). The Company has (i) good and marketable title the Company Subsidiaries have adequate rights of ingress and egress into any Company Real Estate and, to all the Knowledge of its assets the Company, there are no facts that could reasonably be expected to materially and properties (whether realadversely affect the possession, personal or mixeduse, or tangible or intangible) which it purports to own (including all assets and properties recorded on occupancy of the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), Company Real Estate. All Company Real Estate is leased free and clear of all Encumbrances, except for Permitted Encumbrances. The Company has provided to Acquiror accurate and complete copies of all leases, subleases and other agreements under which the Company or any LiensCompany Subsidiary uses or occupies, other than Permitted Liensor has the right to use or occupy, now or in the future, any real property or facility, including all modifications, amendments and supplements thereto. (b) The tangible personal property of the Company does not own and has never owned or any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of Company Subsidiary is (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)repair, reasonable subject to normal wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practicetear, and (bii) the inventories included not obsolete, dangerous, or in the Final Closing Statement that are finished goods are saleable need of renewal or replacement, except for renewal or replacement in the ordinary course of business, consistent with past practice. The tangible personal property is sufficient for the continued conduct of business of the Company after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the personal property necessary to conduct the business of the Company as currently conducted. (c) There is no material property or obligation of the Company or any Company Subsidiary, including uncashed checks to vendors, customers, or employees, non-refunded overpayments, or unclaimed subscription balances, that is escheatable or reportable as unclaimed property to any state or municipality under any applicable escheatment or unclaimed property laws. (d) Schedule 2.12(d) to the Disclosure Letter sets forth a list of each tangible asset and item of tangible personal property of the Company or any Company Subsidiary with an assessed value in excess of $100,000, together with a brief description.

Assets and Properties. (a) The Company has (i) Each of the Company, UST and VNS has good and marketable title to to, or a valid leasehold interest or interest as a licensee in, the properties and assets used or held for use by it, located on its Premises, or shown on its Latest Balance Sheet or acquired after the date thereof. As of the Closing, all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in Acquired Assets will be owned by the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above)Company, free and clear of any Liens, all Encumbrances (other than the Permitted Liens. (b) Encumbrances in the event that, subject to Section 4.10, the Acquiror has not paid off the debt to RFC Capital Corporation as of the Closing). Neither the Company, UST nor VNS has entered into any contract or made any commitment to sell all or any part of its assets, except to the extent that the Permitted Encumbrances could be deemed a contract or commitment to sell assets. The Company does not own Acquired Assets constitute all of the real, personal and has never owned any real mixed assets and property. (c) Schedule 6.9(c) contains a true, complete both tangible and correct list of (i) all real estate leasedintangible, subleased including Intellectual Property, which are being used or occupied held for use by the Company pursuant to a Lease (in the "Leased Premises"), indicating the ownership, street address and use of each conduct of the Leased Premises (business and prior uses to operations of the extent known to Parent) Company, consistent with historical and (ii) current practices. The UST/VNS Assets constitute all Leases to of the real, personal and mixed assets and property, both tangible and intangible, including Intellectual Property, which are being used or held for use by UST or VNS in the Company is a party (including conduct of their respective business and operations, consistent with historical and current practices. Each of the Company, UST and VNS owns or leases all subleases equipment and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate tangible assets necessary for the conduct of the Business its business as it is being presently conducted as of the date hereof and as it will presently proposed to be conducted through conducted. Each such tangible asset material to the Closing Date. (f) All of the material tangible Assets are adequately maintained and are Company's, UST's or VNS's operations is in good operating condition and repair repair. There are no leases of real property between the Company, UST or VNS and free from any material defects (including latent defects and adverse physical conditions)shareholder, reasonable wear and tear exceptedofficer or director or any relative or affiliate thereof. None of the current or former shareholders, and are suitable for nor any relative or affiliate thereof, of the uses for Company, UST or VNS, owns any asset, tangible or intangible, which they are being usedis used in the business of the Company, UST or VNS, as the case may be, other than assets which will be included in the Acquired Assets. (gii) The inventories Premises constitute all of the real property, buildings and improvements used by the Company, UST or VNS, as the case may be, in its business. To the best knowledge of the Shareholder, the Premises have been occupied, operated and maintained in accordance with applicable Legal Requirements. None of the Company, UST or VNS has received notice of violation of any Legal Requirement or Permit relating to its operations or its owned or leased properties. (other than inventory for which a reserve iii) No party to any lease with respect to any Premises has been provided) included repudiated any provision thereof, and there are no disputes, oral agreements or forbearance programs in the Final Closing Statement are of such quality effect as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businesssuch lease.

Assets and Properties. (a) The Company Except as set forth on Schedule 6.6(a), each of Seller and the Seller Subsidiaries has (i) good good, valid and marketable title to all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above)Assets, free and clear of any Liens, other than Permitted Liens. The delivery by Seller or a Seller Subsidiary of the bills of sale and other instruments of assignment, conveyance and transfer pursuant to this Agreement will transfer to Buyer at the Closing good, valid and marketable title to the Assets, free and clear of all Liens, other than Permitted Liens. (b) The Company does not own Seller has good and has never owned any real propertymarketable fee simple title to the Morganton Facility, free and clear of all Liens, other than Permitted Liens. (c) Schedule 6.9(c) contains a true, complete and correct list One or more of (i) all real estate leased, subleased Seller or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company Seller Subsidiaries (and no other Person) is in actual occupancy of all Leased Premises leased by it the Morganton Facility and Seller and the Company enjoys Seller Subsidiaries enjoy peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict in any material respect the ability to use the Leased Premises Morganton Facility for the purposes for which they are it is currently being used. Except for the Lease Agreement, there are no other leases, tenancies or occupancy agreements affecting the Morganton Facility. (d) All improvements at the Morganton Facility were constructed in compliance in all material respects with all applicable Laws (including building, planning and zoning Laws) and Permits affecting the Morganton Facility (provided that the representation and warranty in this sentence is subject to Seller’s knowledge only to the extent such representation and warranty relates to the period prior to January 1, 2004). No improvements at the Morganton Facility and none of the current uses or conditions thereof violate in any material respect any applicable deed restrictions or other applicable covenants, restrictions, agreements, site plan approvals or variances or the certificate of occupancy for each of the improvements at the Morganton Facility. All improvements at the Morganton Facility are wholly within the boundaries of the real property covered by the deed relating thereto, and do not encroach upon the property of, or otherwise conflict in any material respect with the property rights of, any other Person. (e) All existing waterSchedule 6.6(e) sets forth service Contracts of Seller and Seller Subsidiaries that are material to the manufacturing operations at the Morganton Facility ("Material Facility Services Contracts"). Seller and Seller Subsidiaries have not received or given notice of any cancellation or termination of any Material Facility Services Contract and Seller and Seller Subsidiaries are not in material default (other than for delayed payments noted on Schedule 6.6(e)) under any such Material Facility Services Contracts, sewernor has any other event occurred which, steam, gas, electricity, telephone and other utilities and services required but for the use, occupancy, operation and maintenance giving of notice or passage of time would constitute an event of default under any of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing DateMaterial Facility Services Contracts. (f) All No assessment for public improvements has been made with respect to the Morganton Facility which remains unpaid including, but not limited to, assessments for construction of sewer or water lines or mains, streets, sidewalks or curbing. No notice or order by any Governmental Entity has been served upon Seller or any Seller Subsidiary which (i) requires the performance of any work or the making of any repairs or alterations on the premises of the Morganton Facility or in the streets bounding thereon or (ii) orders the installation, repair or alteration of any public improvements on or about the premises of the Morganton Facility or the streets bounding thereon which may or might create a lien on the premises of the Morganton Facility. The Morganton Facility is connected to public water and sewer lines in sufficient capacity to service the Morganton Facility for Buyer’s intended use. There are no outstanding charges or fees in connection with the use, installation, connection or tap-in to any utilities, public or private, serving the Morganton Facility. (g) Seller and Seller Subsidiaries have not received any notice of any condemnation proceedings or other proceeding in the nature of eminent domain with respect to the Morganton Facility and, to the knowledge of Seller, no such proceedings are threatened. (h) The structure (i.e., foundation, load-bearing and exterior walls and roof) of the Morganton Facility is in good condition and free from material defect. The currently used systems (i.e. the heating, ventilating, air conditioning, electrical, plumbing, sprinkling, security and telecommunication systems) at the Morganton Facility are in good and operable condition considering the age of such systems and are in material compliance with applicable building, fire and safety codes. (i) No notice has been received by Seller or any Seller Subsidiary from any insurance company providing insurance coverage for the Morganton Facility that policies insuring the Morganton Facility will not be renewed. No notice has been received by Seller or any Seller Subsidiary from, or issued by, any insurance company which has issued a policy with respect to the Morganton Facility or from any board of fire underwriters (or any other body exercising similar functions) claiming any defects or deficiencies or requiring the performance of any repairs, alterations or other work. No notice has been received in the last two years to the effect that any portion of the Morganton Facility has been subjected to material damage by fire or other casualty which material damage is unrepaired as of the date hereof. (j) Except as set forth on Schedule 6.6(j), to Seller’s knowledge, the machinery, equipment and other items of tangible personal property included in the Assets are adequately maintained and structurally sound, are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear exceptedconsidering the age of such equipment, and are suitable adequate for the uses for to which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are put, and none of such quality as to meet the quality control standards machinery, equipment and other items of the Company tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and any applicable governmental quality control standard and repairs that are usable in the ordinary course of business in amounts consistent with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of business.

Assets and Properties. (a) The Section 4.9(a) of the Disclosure Schedules sets forth a list of all real property leases to which any Company is a party (whether as a (sub)lessor, (sub)lessee, guarantor or otherwise) (the “Company Real Property Leases”; all real property in which any Company holds a leasehold interest, whether as lessee or sublessee, the “Leased Real Property”), and the street address, date of each Company Real Property Lease and the name of each of the parties to each Company Real Property Lease with respect to the Company Real Property Leases. Except for the Company Real Property Leases identified in Section 4.9(a) of the Disclosure Schedules, no Company owns any interest (fee, leasehold or otherwise) in any real property and the Companies have not entered into any leases, arrangements, licenses or other agreements relating to the sale or lease of all or any portion of the Leased Real Property, nor has any Company entered into any agreement to purchase or option agreement for the purchase of any real property. Except as set forth in Section 4.9(a) of the Disclosure Schedules, with respect to each Company Real Property Lease: (i) good and marketable title to all of the Companies have not assigned, sublet, transferred, conveyed any interest in or collaterally assigned its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of interest in the ordinary course of business consistent with past practices since December 31, 2010) and Leased Real Property or such Company Real Property Lease; (ii) valid leasehold interests in all the Companies have not received any written notice of its assets and properties which it purports to lease, in each case (default with respect to both clause any Company Real Property Lease that remains outstanding as of the date of this Agreement; (iiii) the Companies have not received any written notice of any violation of default with respect to any covenants, conditions, restrictions easements, rights of way, zoning ordinances, or private agreements affecting the Leased Real Property; (iv) there are no condemnation or eminent domain proceedings pending or, to the Knowledge of the Company, contemplated against the Leased Real Property; (v) there are no casualties or other material repairs with respect to the Leased Real Property which are required and which have not been completed as of the date of this Agreement, ordinary wear and tear excepted; (vi) the landlord, sublessor or licensor under each Company Real Property Lease has completed its obligations under such Company Real Property Lease to prepare the applicable Leased Real Property for the Company’s initial occupancy of the premises thereunder and disbursed all required allowances to the Company for the performance of improvements to the Leased Real Property; (vii) to the Knowledge of the Company, the landlord, sublessor or licensor under each Company Real Property Lease has not defaulted under its obligations under such Company Real Property Lease; and (iiviii) above)no counterparty to a Company Real Property Lease is a Related Person of the Company or Sellers. (b) Section 4.9(b) of the Disclosure Schedules sets forth a list and description of all material capital expenditures (A) undertaken by a Company in the twelve (12) months prior to Closing or (B) currently planned to be undertaken by a Company in the twelve (12) months following Closing. (c) The Companies have a valid leasehold interest in the Leased Real Property, free and clear of any Liens, Liens other than Permitted Liens. (b. The Companies are in peaceful and undisturbed possession of each parcel of Leased Real Property. The Companies have not received written notice from any applicable Governmental Authority that the current use or operation of the Leased Real Property is in breach or violation of, or default under, any applicable Laws that has not been remedied prior to the date of this Agreement. The Companies have not received written notice from any third party that the current use or operation of the Leased Real Property is in breach or violation of, or default under, any applicable covenants, conditions, restrictions easements, rights of way, zoning ordinances, or private agreements affecting the Leased Real Property. Access to the Leased Real Property has not been materially impaired except as set forth on Section 4.9(c) of the Disclosure Schedules. True and complete copies of all Company Real Property Leases have been delivered to Buyer. The Company does Companies do not currently own and has never have not previously owned any real property. (cd) Schedule 6.9(cExcept as set forth on Section 4.9(d) contains a trueof the Disclosure Schedules, complete and correct list the transactions contemplated by this Agreement do not require the consent of (i) all real estate leased, subleased or occupied by the Company pursuant any counterparty to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each of the Leased Premises (and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being usedReal Property Lease. (e) All existing water, sewer, steam, gas, electricity, telephone Section 4.9(e) of the Disclosure Schedules sets forth the rent and other utilities fees paid by either Company for each parcel of Leased Real Property during calendar years 2021, 2022 and services required for 2023, indicating in each case, if applicable, the use, occupancy, operation and maintenance amount of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Datepercentage rent (or other rent based on a Company’s income) paid in each such calendar year. (f) All The Companies own good title to, or hold pursuant to valid and, to the Knowledge of the Company, enforceable leases, all of the material tangible Assets are adequately maintained personal property and are other material assets (i) shown to be owned by the Companies on the Balance Sheet (or that were purchased or acquired after the Balance Sheet Date and identified in the books and records as being owed by a Company as of the Closing Date), and (ii) used or held for use in, and necessary for the operation of, the business of the Companies as currently conducted, in each case, other than inventory sold or disposed of in the Ordinary Course of Business (the “Assets”), free and clear of all Liens other than Permitted Liens. Each such Asset (other than inventory) is free from material defects (patent and latent) and in good operating condition and repair and free from any that is, in all material defects (including latent defects and adverse physical conditions)respects, reasonably suitable for the purposes of which such Asset is presently used by the Companies, reasonable wear and tear and normal preventative maintenance excepted, and are suitable for the uses for which they are being used. (g) The inventories Assets together with the intangible assets of the Companies are, collectively, sufficient to allow the Companies to operate the business of the Companies as presently conducted. (h) All items of inventory of the Companies are of good, marketable and merchantable quality. The quantity of inventory of the Companies is consistent with the past practices of the Company in all material respects. No Company has sold or disposed of any items of inventory except through sales or returns in the Ordinary Course of Business and the quantities of all items of inventory and supplies of the Companies are not excessive and are reasonable in the present circumstances of the business of the Company. The inventory of the Companies is in the physical possession of the Companies or in transit to or from a customer or supplier thereof and no inventory has been pledged as collateral or otherwise is subject to any Lien (other than a Permitted Lien). The inventory for which a reserve has been provided) included located in the Final Closing Statement are of such quality as to meet Companies’ warehouses is valued in accordance with the quality control standards of the Company and any applicable governmental quality control standard and are usable weighted average cost method. The inventory was acquired or produced in the ordinary course Ordinary Course of business Business. All inventory complies in amounts consistent all material respect with past practiceall Laws, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessincluding Applicable Food Laws.

Assets and Properties. (a) The Company owns no real property, and Schedule 2.8(a) lists all real property currently leased by the Company (the “Leased Real Property”), with the leases or other agreements evidencing such interests being referred to as the “Real Property Leases”), and all real property previously leased by the Company as of May 2, 2005 or later. Except as set forth on Schedule 2.8(a), neither of the Company nor, to the Knowledge of the Seller, any other party thereto is in material breach of or default under any Real Property Lease, and no party to any Real Property Lease has given either written notice of or made a written claim with respect to any material breach or default thereunder. Except as set forth on Schedule 2.8(a), to the Knowledge of the Seller, none of the Leased Real Property is subject to any Lien (iother than a Permitted Lien). There are no pending or, to the Knowledge of the Seller, threatened condemnation or other Proceedings or claims relating to any of the Leased Real Property. Seller has delivered to Purchaser complete copies of the Real Property Leases and all amendments thereto. Except for the Real Property Leases, there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of any parcel of the Leased Real Property. (b) good All improvements located on each parcel of the Leased Real Property are supplied with utilities and marketable title to other services necessary for the operation of such facilities in the ordinary course of business, including gas, electricity, water and telephone, all of which services are adequate for the operation of the business of the Company as presently conducted. Each parcel of the Leased Real Property abuts on, and has direct vehicular access to, a public road or has access to a public road. The Company has all easements and rights necessary to conduct its business and no easements have been granted by the Company to other parties in connection with the Leased Real Property that could reasonably be expected to interfere with the operation of its business. The use by the Company of the Leased Real Property for the conduct of its business as currently conducted complies with all applicable Laws, including, without limitation, all applicable zoning laws, use restrictions and restrictive covenants, without the necessity of any special or conditional use permit, variance, rezoning or other governmental or private party approval, nor any improvements, upgrades or renovations to the Leased Real Property. To the Knowledge of the Seller, in any of the improvements upon the Leased Real Property, there are no roof leaks, structural defects or infestations by wood damaging pests. (c) Except as set forth on Schedule 2.8(c), to the Knowledge of the Seller, substantially all items of equipment used in the conduct of the business of the Company are in good operating condition and repair 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, ordinary wear and tear excepted) and are suitable for their present uses. (d) Other than as set forth on Schedule 2.8(d), the improvements, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property currently owned or leased by the Company, together with all other properties and assets of the Company, are sufficient for the continued conduct of the Company’s business after Closing in substantially the same manner as conducted prior to the Closing and properties constitute all of the rights, property and assets reasonably necessary to conduct the business of the Company as currently conducted. (whether reale) The accounts receivable reflected in the Interim Financial Statements and all accounts receivable arising thereafter through the Closing, personal represent bona fide claims against debtors for sales, services performed or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of charges arising in the ordinary course of business consistent with past practices since December 31and are not, 2010) and (ii) valid leasehold interests in all of its assets and properties which it purports to lease, in each case (with respect to both clause (i) and (ii) above), free and clear of any Liens, other than Permitted Liens. (b) The Company does not own and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each Knowledge of the Leased Premises (Seller, subject to dispute or counterclaim, except as provided for in the reserve for bad debts set forth on the Interim Financial Statements as adjusted for operations and prior uses to the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted transactions through the Closing DateDate in accordance with the Company’s past practices. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company is of merchantable quality and any applicable governmental quality control standard and are usable is capable of being sold in the ordinary course of business in amounts consistent with past practice, and (b) without discount except to the inventories included extent reasonable reserves have been established by the Company in the Final Interim Financial Statements (as adjusted for operations and transactions through the Closing Statement Date in accordance with the Company’s past practices) for inventory that are finished goods are is defective, excess, discontinued or otherwise not saleable in the ordinary course of business. Except as set forth on Schedule 2.8(f), no such inventory is held on a consignment basis. Except as set forth on Schedule 2.8(f), the quantities of inventory of work-in-process and finished goods do not exceed an amount that is reasonably expected to be delivered within 60 days. (g) Except as set forth on Schedule 2.8(g), the Company has legal and beneficial ownership of, or valid leasehold interests in, all of the tangible personal property and assets that are reasonably necessary for the continued conduct of the business of the Company as currently conducted, free and clear of any Liens other than Permitted Liens. This Section 2.8(g) does not relate to intellectual property or insurance assets and properties, which are addressed solely in Sections 2.11 and 2.16, respectively.

Assets and Properties. (a) The Company has (i) and its Subsidiaries have good and marketable title to all of its assets and properties (whether real, personal or mixedto, or tangible a valid leasehold interest in or intangible) which it purports valid right to own (including use, all material properties and assets and properties recorded used by them, located on their premises or shown on the December 31consolidated balance sheet of the Company and its Subsidiaries as of August 27, 2010 Balance Sheet2005 or acquired after the date thereof, free and clear of all Liens (other than inventories properties and assets disposed of in the ordinary course of business consistent with past practices since December 31August 27, 2010) 2005, except for Liens disclosed on such consolidated balance sheet, and (ii) except for Permitted Liens). The Company and its Subsidiaries own, have a valid leasehold interests interest in, or have the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of their businesses as presently conducted. Except as set forth in Section 4.24(a) of the Company Disclosure Schedule and except as would not have a Company Material Adverse Effect, all of the Company's and its Subsidiaries' buildings (including all components of such buildings, structures and other improvements), and all equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) are in adequate condition and properties which it purports to lease, in repair (ordinary wear and tear excepted) for the operation of their businesses as presently conducted. (b) Section 4.24(b) of the Company Disclosure Schedule sets forth the address and description of each case (with parcel of Owned Real Property. With respect to both clause each parcel of Owned Real Property, except as set forth in Section 4.24(b) of the Company Disclosure Schedule: (i) and (ii) above)the Company or its Subsidiaries have fee simple title, free and clear of all Liens except Permitted Liens as of the Closing Date; (ii) neither the Company nor any Liensof its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (iii) there are no outstanding options, other than Permitted Liens. (b) The Company does not own and has never owned rights of first offer or rights of first refusal to purchase such Owned Real Property or any real propertyportion thereof or interest therein. (c) Section 4.24(c) of the Company Disclosure Schedule 6.9(c) contains sets forth the address of each parcel of Leased Real Property, and a true, complete and correct list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has made available to Parent and Acquisition Corp. a complete copy of each such Lease. Neither the Company nor its Subsidiaries are party to any oral Leases. Except as set forth in Section 4.24(c) of the Company Disclosure Schedule, with respect to each of the Leases: (i) all real estate leased, subleased or occupied by as to the Company pursuant to a and its Subsidiaries, such Lease (the "Leased Premises")is legal, indicating the ownershipvalid, street address binding, enforceable and use of each of the Leased Premises (in full force and prior uses to the extent known to Parent) and effect in all material respects; (ii) all Leases the transaction contemplated by this Agreement does not require the consent of or notice to which any other party to such Lease, will not result in a material breach of or material default under such Lease, will not give rise to any recapture or similar rights, 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) none of the Company, its Subsidiaries, or, to the knowledge of the Company, any other party to the Lease is in material breach or material default under such Lease and no event, with the passage of time or giving of notice or both, would constitute a material breach or default under such Lease; (iv) the other party to such Lease is not an Affiliate of the Company is a party or any of its Subsidiaries; (including all subleases and other Leases through which v) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any interest in any of Person the contractual right to use or occupy such Leased Premises, Real Property or any portion thereof; (vi) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein; and (x) there are no Liens on the estate or interest created by such Lease except for Permitted Liens. Except as set forth in Section 4.24(c) of the Company Disclosure Schedule, to none of the Leases contain any Person)capital expenditure requirements or remodeling obligations of the Company or any of its Subsidiaries other than ordinary maintenance and repair obligations. (d) The Company For purposes of this Agreement, "Permitted Liens" shall mean (and no other Personi) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease statutory landlord's, mechanic's, carrier's, workmen's, repairmen's or other Contract similar Liens arising or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable incurred in the ordinary course of business for amounts which are not due and payable and which would not, individually or in amounts consistent with past practicethe aggregate, have a Material Adverse Effect on the business of the Company and its Subsidiaries as currently conducted thereon, (ii) such easements, covenants and other restrictions or encumbrances of record as do not materially affect the ownership or use of the properties or assets subject thereto or affected thereby or otherwise materially affect, restrict or impair business operations at such properties, and (biii) the inventories included in the Final Closing Statement liens pursuant to that are finished goods are saleable in the ordinary course of business.certain loan agreement with The CIT Group/Business Credit, Inc.

Assets and Properties. Section 3.17.1 Section 3.17.1 of the Company Disclosure Schedule sets forth a complete list of the real property leased, subleased, licensed, used or otherwise occupied by the Company (aeach individually referred to herein as a “Company Real Property” and collectively referred to herein as the “Company Real Properties”) and each agreement (whether written or oral) pursuant to which the Company leases, subleases, licenses, uses or otherwise occupies such Company Real Property (each, a “Company Real Property Lease”), including all modifications, amendments and supplements thereto. Except as set forth on Section 3.17.1 of the Company Disclosure Schedule, no person (other than the Company) possesses, uses or occupies any portion of the Company Real Property. The Company has (i) good a valid leasehold interest in or right to use, as applicable, and marketable title to enjoys peaceful possession of, all of its assets and properties (whether real, personal or mixed, or tangible or intangible) which it purports to own the Company Real Properties (including all assets rights, privileges and properties recorded appurtenances pertaining or relating thereto) free and clear of any and all Liens, except for Permitted Liens. Section 3.17.2 Each Company Real Property Lease is in full force and effect, is valid and binding on the December 31parties thereto, 2010 Balance Sheetand is enforceable in accordance with its terms. There is no existing material default by the Company, or to the Knowledge of the Company, any other than inventories disposed party under any Company Real Property Lease, and no event has occurred that (with the giving of in notice, lapse of time or both) would constitute a material default or material breach under any Company Real Property Lease or permit the ordinary course termination, modification or acceleration of business consistent with past practices since December 31rent under any Company Real Property Lease. The Company has not received any notice of and there is no pending or, 2010) and (ii) valid leasehold interests in all to the Knowledge of its assets and properties which it purports to leasethe Company, in each case (threatened condemnation, eminent domain or similar actions with respect to both clause (i) and (ii) above)any Company Real Property. Section 3.17.3 The Company owns, has a valid leasehold interest in, or right to use, as applicable, all material personal property used in its business, free and clear of any and all Liens, other than except for Permitted Liens. (b) The Company does not own . Such personal property and has never owned any real property. (c) Schedule 6.9(c) contains a true, complete and correct list of (i) all real estate leased, subleased or occupied by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each structural elements of the Leased Premises leased property (and prior uses to the extent known to Parenttaken as a whole) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions)repair, reasonable ordinary wear and tear and deferred maintenance excepted, and are suitable except for such failures to be in good operating condition and repair which, individually or in the uses for which they are being usedaggregate, would not reasonably be expected to be material to the Company. (g) Section 3.17.4 The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards of the Company and any applicable governmental quality control standard and are usable in the ordinary course of business in amounts consistent with past practicedoes not now own, and (b) the inventories included has never owned, any direct or indirect interest in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessany real property. Section 3.17.5 The Company is not a party to any agreement or option to lease or to purchase any real property or interest therein.

Assets and Properties. (a) The Company owns no real property. Section 4.10(a) of the Disclosure Schedule identifies each parcel of real property leased or occupied by the Company (the "Company Real Estate") and a brief description of its use. The Company has adequate rights of ingress and egress into any Company Real Estate and there are no facts known to the Company that would reasonably be expected to materially and adversely affect the possession, use or occupancy of the Company Real Estate in the Ordinary Course of Business. There are no disputes, oral agreements, or forbearance programs in effect as to any Company Real Estate. The Company has not subleased, sublet, licensed or otherwise granted any Person the right to use or occupy any Company Real Estate or any portion thereof. The Company would not be required as a result of any alterations to any Company Real Estate previously made or ongoing or in process in any manner as of the Closing Date to expend in excess of $50,000 in causing the Company Real Estate to comply with the surrender conditions set forth in the applicable lease. To the knowledge of the Company, all utilities serving the Company Real Estate are installed and operating and are sufficient to enable the Company Real Estate to continue to be used and operated consistent in all material respects with past practices. To the knowledge of the Company, (i) good and marketable title there are no material structural defects with respect to all any of its assets and properties (whether realCompany Real Estate or any portion thereof, personal or mixed, or tangible or intangible) which it purports to own (including all assets and properties recorded on the December 31, 2010 Balance Sheet, other than inventories disposed of in the ordinary course of business consistent with past practices since December 31, 2010) and (ii) valid leasehold interests the roof and roof structure and all electrical wiring, heating, cooling and plumbing systems serving any of the Company Real Estate or any portion thereof are in good working order. The Company has made available to Parent copies of all of its assets leases, subleases and properties other agreements under which it purports the Company uses or occupies or has the right to leaseuse or occupy, now or in each case (with respect to both clause (i) the future, any real property or facility, including all modifications, amendments and (ii) above), free and clear of any Liens, other than Permitted Lienssupplements thereto. (b) The tangible personal property of the Company does not own that is material to the operation of its business is in normal operating condition and has never owned any real propertyrepair, subject to ordinary wear and tear. Section 4.10(b) of the Disclosure Schedule sets forth a list of each item of Company tangible personal property with a net book value in excess of $5,000. (c) Schedule 6.9(c) contains a trueThe Company Real Property and the machinery, complete equipment, personal properties, buildings, facilities, vehicles, Inventory and correct list of (i) all real estate leased, subleased other tangible assets owned or occupied leased by the Company pursuant to a Lease (the "Leased Premises"), indicating the ownership, street address and use of each constitute all of the Leased Premises (properties, rights and prior uses assets necessary to operate the extent known to Parent) and (ii) all Leases to which the Company is a party (including all subleases and other Leases through which the Company has granted any interest in any of the Leased Premises, or any portion thereof, to any Person). (d) The Company (and no other Person) is in actual occupancy of all Leased Premises leased by it and the Company enjoys peaceful and undisturbed possession thereof. There are no restrictions imposed by any Lease or other Contract or by Law which preclude or restrict the ability to use the Leased Premises for the purposes for which they are currently being used. (e) All existing water, sewer, steam, gas, electricity, telephone and other utilities and services required for the use, occupancy, operation and maintenance of the Leased Premises are adequate for the conduct of the Business as it is being conducted as of the date hereof and as it will be conducted through the Closing Date. (f) All of the material tangible Assets are adequately maintained and are in good operating condition and repair and free from any material defects (including latent defects and adverse physical conditions), reasonable wear and tear excepted, and are suitable for the uses for which they are being used. (g) The inventories (other than inventory for which a reserve has been provided) included in the Final Closing Statement are of such quality as to meet the quality control standards business of the Company and any applicable governmental quality control standard and are usable in substantially the same manner conducted by the Company in the ordinary course Ordinary Course of Business. The Company owns or has a valid, written and enforceable right to use all of the assets and rights it uses in operating the business of the Company. Notwithstanding anything to the contrary contained in amounts consistent this Section 4.10, no representation or warranty is made in this Section 4.10 with past practice, and (b) the inventories included in the Final Closing Statement that are finished goods are saleable in the ordinary course of businessrespect to Intellectual Property.