Common use of Real and Tangible Personal Property Clause in Contracts

Real and Tangible Personal Property. (a) Schedule 4.3(a) sets forth a legal description of the Owned Real Property. Except as set forth on Schedule 4.3(a) hereto, K▇▇▇▇ has good and marketable title to the Owned Real Property, free and clear of all Liens. Except as set forth on Schedule 4.3(a) hereto, (i) the buildings, structures, fixtures, building systems and equipment included in the Owned Real Property (collectively, the “Improvements”) are, taken as a whole, in good condition and repair, normal wear and tear excepted, except to the extent the failure to be in such condition or repair does not materially impair the operation of the Owned Real Property as currently conducted and (ii) there are no material structural deficiencies affecting the Improvements. For purposes of the preceding sentence, “material” or “materially” means that the cost to repair or remedy any deficiency or condition would exceed the sum of $10,000. The classification of each parcel of Owned Real Property under applicable zoning laws, ordinances and regulations expressly permits the use and occupancy of such parcel and the operation of the Business as currently conducted thereon (and not merely as a prior non-conforming use or similar designation), and permits the Improvements located thereon as currently constructed, used and occupied. There is no condemnation, expropriation or other proceeding in eminent domain, pending or, to the Knowledge of Sellers, threatened, affecting any parcel of Owned Real Property or any portion thereof or interest therein. (b) Sellers have previously provided or made available to Purchaser a true and correct copy of the L▇▇▇ Road Lease and each of the Farm Leases, each as amended as of the date hereof. Except as set forth on Schedule 4.3(b) hereto, with respect to each of the L▇▇▇ Road Lease and each of the Farm Leases: (i) such lease is valid and enforceable, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law; (ii) the transactions contemplated by this Agreement (including the Sublease) do not require the consent of any other party to such lease (other than the Seller Required Approvals), will not result in a breach of or default under such lease, and will not otherwise cause such lease to cease to be so valid and enforceable on terms substantially identical in all material respects following the Closing; (iii) Goodyear’s possession and quiet enjoyment of the Leased Real Property under the L▇▇▇ Road Lease is not presently disturbed and there are currently no disputes with respect to such lease; (iv) neither Goodyear nor the other party to the L▇▇▇ Road Lease, is in material breach or default under such lease; (v) Goodyear has not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and (vi) Goodyear has not collaterally assigned or granted any Lien in the L▇▇▇ Road Lease or any interest therein. (c) Except as set forth on Schedule 4.3(c) hereto, K▇▇▇▇ or Goodyear has obtained all Permits (other than Environmental Permits that are addressed in Section 4.18) required to be obtained by K▇▇▇▇ or Goodyear with respect to the Owned Real Property. (d) Except as otherwise set forth herein, the Purchased Assets constitute all of the assets, rights and properties (other than any Excluded Assets) used or held for use by Sellers in connection with the manufacture of Farm Tires at and necessary for the operation of the Freeport Facility as presently operated. (e) Schedule 2.1(a)(i) hereto sets forth a listing of all capital assets owned by Goodyear included in the Purchased Assets, other than Inventories, as of December 31, 2004. Except as set forth on Schedule 4.3(e)(i) hereto, and except with respect to such Purchased Assets as Goodyear has disposed of in the Ordinary Course of Business since December 31, 2004, Goodyear has good title to or an enforceable right to use all such Purchased Assets, free and clear of all Liens. All assets listed on Schedule 2.1(a)(i) are in good operating condition and repair (subject to normal wear and tear), are free from manufacturing flaws and have been maintained in accordance with Goodyear’s normal practices. (f) Goodyear has previously provided or made available to Purchaser a true and correct copy of each of the Personal Property Leases, each as amended as of the date hereof. Except as set forth in Schedule 4.3(f) hereto, each of the Personal Property Leases are, assuming due execution and delivery by the counterparties thereto, legal, valid and binding in all material respects, enforceable in all material respects in accordance with their terms, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law. All such Personal Property Leases are free of any material default or breach thereof by Goodyear. (g) Schedule 4.3(g) lists all Permitted Liens as of January 31, 2005 to Sellers’ Knowledge.

Real and Tangible Personal Property. (a) Schedule 4.3(a) sets forth a legal description of the Owned Real Property. Except as set forth on Schedule 4.3(a) hereto, K▇▇▇▇▇ has good and marketable title to the Owned Real Property, free and clear of all Liens. Except as set forth on Schedule 4.3(a) hereto, (i) the buildings, structures, fixtures, building systems and equipment included in the Owned Real Property (collectively, the “Improvements”) are, taken as a whole, in good condition and repair, normal wear and tear excepted, except to the extent the failure to be in such condition or repair does not materially impair the operation of the Owned Real Property as currently conducted and (ii) there are no material structural deficiencies affecting the Improvements. For purposes of the preceding sentence, “material” or “materially” means that the cost to repair or remedy any deficiency or condition would exceed the sum of $10,000. The classification of each parcel of Owned Real Property under applicable zoning laws, ordinances and regulations expressly permits the use and occupancy of such parcel and the operation of the Business as currently conducted thereon (and not merely as a prior non-conforming use or similar designation), and permits the Improvements located thereon as currently constructed, used and occupied. There is no condemnation, expropriation or other proceeding in eminent domain, pending or, to the Knowledge of Sellers, threatened, affecting any parcel of Owned Real Property or any portion thereof or interest therein. . 30 (b) Sellers have previously provided or made available to Purchaser a true and correct copy of the L▇▇▇▇ Road Lease and each of the Farm Leases, each as amended as of the date hereof. Except as set forth on Schedule 4.3(b) hereto, with respect to each of the L▇▇▇▇ Road Lease and each of the Farm Leases: (i) such lease is valid and enforceable, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law; (ii) the transactions contemplated by this Agreement (including the Sublease) do not require the consent of any other party to such lease (other than the Seller Required Approvals), will not result in a breach of or default under such lease, and will not otherwise cause such lease to cease to be so valid and enforceable on terms substantially identical in all material respects following the Closing; (iii) Goodyear’s possession and quiet enjoyment of the Leased Real Property under the L▇▇▇▇ Road Lease is not presently disturbed and there are currently no disputes with respect to such lease; (iv) neither Goodyear nor the other party to the L▇▇▇▇ Road Lease, is in material breach or default under such lease; (v) Goodyear has not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and (vi) Goodyear has not collaterally assigned or granted any Lien in the L▇▇▇▇ Road Lease or any interest therein. (c) Except as set forth on Schedule 4.3(c) hereto, K▇▇▇▇▇ or Goodyear has obtained all Permits (other than Environmental Permits that are addressed in Section 4.18) required to be obtained by K▇▇▇▇▇ or Goodyear with respect to the Owned Real Property. (d) Except as otherwise set forth herein, the Purchased Assets constitute all of the assets, rights and properties (other than any Excluded Assets) used or held for use by Sellers in connection with the manufacture of Farm Tires at and necessary for the operation of the Freeport Facility as presently operated. . (e) Schedule 2.1(a)(i) hereto sets forth a listing of all capital assets owned by Goodyear included in the Purchased Assets, other than Inventories, as of December 31, 2004. Except as set forth on Schedule 4.3(e)(i) hereto, and except with respect to such Purchased Assets as Goodyear has disposed of in the Ordinary Course of Business since December 31, 2004, Goodyear has good title to or an enforceable right to use all such Purchased Assets, free and clear of all Liens. All assets listed on Schedule 2.1(a)(i) are in good operating condition and repair (subject to normal wear and tear), are free from manufacturing flaws and have been maintained in accordance with Goodyear’s normal practices. . (f) Goodyear has previously provided or made available to Purchaser a true and correct copy of each of the Personal Property Leases, each as amended as of the date hereof. Except as set forth in Schedule 4.3(f) hereto, each of the Personal Property Leases are, assuming due execution and delivery by the counterparties thereto, legal, valid and binding in all material respects, enforceable in all material respects in accordance with their terms, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law. All such Personal Property Leases are free of any material default or breach thereof by Goodyear. . 31 (g) Schedule 4.3(g) lists all Permitted Liens as of January 31, 2005 to Sellers’ Knowledge.. Section 4.4 Financial Reports. Attached as Schedule 4.4 hereto are copies of certain management measurements of income and losses with respect to the Business (collectively, the “Reports”). The Reports (a) were prepared in all material respects in accordance with, and reflect, in all material respects, the books of account and other financial records of Goodyear and (b) were prepared in all material respects consistent with the past practices of Goodyear for measuring income and loss for unincorporated business units, except that (i) the Reports exclude information relating to rubber track and (ii) the Reports disaggregate or eliminate certain items of expense deemed by Goodyear not to be directly related to the Business. Section 4.5 Absence of Certain Changes. Except as set forth on Schedule 4.5 hereto, between December 31, 2004 and the date hereof, there has not been: (a) any Material Adverse Change; (b) any material increase made or promised in the compensation or other remuneration or rate thereof payable or to become payable by Goodyear to its Employees generally; (c) except as set forth on Schedules 4.3(a), (b), (c) or (e)(i) any Lien with respect to the Business other than Liens that do not individually or in the aggregate, exceed $25,000, imposed upon or attached to any of the Purchased Assets; (d) except as set forth on Schedules 4.3(a), (b), (c) or (f) or Schedule 4.12, any material amendment to, consent by any Seller to the termination of or material breach by any Seller of any Assumed Contract or Assumed Lease; (e) any material commitment to any labor organization by Goodyear with respect to the Employees; (f) except as set forth on Schedule 4.5(f), any sale, transfer, lease, sublease, license or other disposal by any Seller of any of the Purchased Assets which individually or in the aggregate have a value in excess of $10,000 other than Inventories sold in the Ordinary Course of Business with respect to the Business; (g) any material changes in the customary methods of operation of the Business, including, without limitation, policies and practices relating to Inventories; 32

Real and Tangible Personal Property. (a) Schedule 4.3(a) sets forth The Companies and each of their Subsidiaries have good and valid title to, or a legal description valid license or leasehold interest in, all tangible personal property required for the continued operation of the Owned Real Property. Except as set forth on Schedule 4.3(a) hereto, K▇▇▇▇ has good businesses of the Companies and marketable title to the Owned Real Propertytheir Subsidiaries, free and clear of all any Liens. Except as set forth on Schedule 4.3(a) hereto, (i) the buildings, structures, fixtures, building systems and equipment included in the Owned Real Property (collectively, the “Improvements”) are, taken as a whole, in good condition and repair, normal wear and tear excepted, except to the extent the failure to be in such condition or repair does not materially impair the operation of the Owned Real Property as currently conducted and (ii) there are no material structural deficiencies affecting the Improvements. For purposes of the preceding sentence, “material” or “materially” means that the cost to repair or remedy any deficiency or condition would exceed the sum of $10,000. The classification of each parcel of Owned Real Property under applicable zoning laws, ordinances and regulations expressly permits the use and occupancy of such parcel and the operation of the Business as currently conducted thereon (and not merely as a prior non-conforming use or similar designation), and permits the Improvements located thereon as currently constructed, used and occupied. There is no condemnation, expropriation or other proceeding in eminent domain, pending or, to the Knowledge of Sellers, threatened, affecting any parcel of Owned Real Property or any portion thereof or interest thereinPermitted Exceptions. (b) Sellers have previously provided or made available to Purchaser Schedule 2.12 sets forth a true and correct copy complete list of the L▇▇▇ Road Lease and each of the Farm Leases, each as amended as of the date hereof. Except as set forth on Schedule 4.3(b) hereto, with respect to each of the L▇▇▇ Road Lease and each of the Farm Leases: (i) such lease is valid all real property and enforceable, subject only to bankruptcy, reorganization, receivership interests in real property owned in fee by the Companies and other laws affecting creditors’ rights generally their Subsidiaries (the “Owned Property”) and to general principals of equity, whether invoked in a proceeding in equity or at law; (ii) the transactions contemplated by this Agreement (all agreements, including the Sublease) do not require the consent of any other party to such lease (other than the Seller Required Approvals), will not result in a breach of or default under such lease, and will not otherwise cause such lease to cease to be so valid and enforceable on terms substantially identical in all material respects following amendments and modifications thereto, relating to real property leased, subleased, license, used or otherwise occupied by the Closing; Companies or any of their Subsidiaries (iii) Goodyear’s possession and quiet enjoyment of the Leased each individually, a “Real Property under Lease” and together with the L▇▇▇ Road Lease is not presently disturbed and there are currently no disputes with respect Owned Property, being referred to such lease; (iv) neither Goodyear nor herein as the other party to the L▇▇▇ Road Lease, is in material breach or default under such lease; (v) Goodyear has not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and (vi) Goodyear has not collaterally assigned or granted any Lien in the L▇▇▇ Road Lease or any interest therein“Company Properties”). (c) Except as set forth on Schedule 4.3(c) hereto2.12, K▇▇▇▇ the Companies or Goodyear has obtained one of their Subsidiaries have good and valid fee title to all Permits (other than Environmental Permits that are addressed in Section 4.18) required to be obtained by K▇▇▇▇ or Goodyear with respect to the Owned Real Property, free and clear of all Liens except Permitted Exceptions. (d) Except as otherwise set forth herein(i) Seller has made available to Buyer, the Purchased Assets constitute in all material respects, true, correct and complete copies of the assetsReal Property Leases, rights and properties (other than any Excluded Assetsii) used or held for use by Sellers in connection with the manufacture of Farm Tires at and necessary for the operation each of the Freeport Facility as presently operatedReal Property Leases is in full force and effect and is a legal, valid and binding obligation of the Companies or their Subsidiaries, enforceable against them in accordance with its terms, subject to the Enforceability Exception, (iii) neither the Companies nor any of their Subsidiaries is in default under any Real Property Lease or has received any written notice of any default or event that with notice or lapse of time, or both, would constitute a material default by the Companies or any of their Subsidiaries under any of the Real Property Leases, and (iv) to the Knowledge of the Companies, no other party is in default thereof and no party to any Real Property Lease has exercised any termination rights with respect thereto. (e) Schedule 2.1(a)(iThere are no pending or, to Sellers’ Knowledge, threatened material appropriation, condemnation, eminent domain or like proceedings relating to the Owned Property or, to the Knowledge of the Companies, the real property subject to the Real Property Leases. (f) hereto sets forth a listing of all capital assets owned by Goodyear included in the Purchased Assets, other than Inventories, as of December 31, 2004. Except as set forth on Schedule 4.3(e)(i) hereto2.12, and except with respect neither the Company nor any of its Subsidiaries lease, sublease, license to such Purchased Assets as Goodyear has disposed of in the Ordinary Course of Business since December 31, 2004, Goodyear has good title any other Person or permit any other Person to or an enforceable right to use all such Purchased Assets, free and clear of all Liens. All assets listed on Schedule 2.1(a)(i) are in good operating condition and repair (subject to normal wear and tear), are free from manufacturing flaws and have been maintained in accordance with Goodyear’s normal practices. (f) Goodyear has previously provided or made available to Purchaser a true and correct copy of each occupy any of the Personal Property Leases, each as amended as of the date hereof. Except as set forth in Schedule 4.3(f) hereto, each of the Personal Property Leases are, assuming due execution and delivery by the counterparties thereto, legal, valid and binding in all material respects, enforceable in all material respects in accordance with their terms, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law. All such Personal Property Leases are free of any material default or breach thereof by GoodyearCompany Properties. (g) Schedule 4.3(g) lists all Permitted Liens as of January 31, 2005 to Sellers’ Knowledge.

Real and Tangible Personal Property. Except as set ----------------------------------- forth on Schedule 4.14(a), MDI or its Subsidiaries has valid title to ----------------- all properties, interests in properties and assets (areal and personal) reflected in the consolidated balance sheet of MDI as at September 30, 1996 (except properties, interests in properties and assets sold or otherwise disposed of since September 30, 1996 in the ordinary course of business to Persons other than Affiliates of MDI consistent with past practices), free and clear of all mortgages, liens, pledges, charges or encumbrances of any kind or character, except the lien of current taxes not yet due and payable. Schedule 4.3(a4.14(a) sets forth a legal description hereof lists ---------------- each piece of real property owned, leased or utilized by MDI and/or its Subsidiaries, including the location thereof and the use to which it is put by MDI and/or any of its Subsidiaries. All improvements located on any real property owned by MDI or any of its Subsidiaries are in good structural condition, free from any termite infestation or damage, roof leakage, wood rot or decay or any structural or other defect or impairment of any nature whatsoever which might impair the value, utility or life expectancy of such improvements, or which might otherwise adversely affect the operation thereof. All of the Owned Real Propertyreal property owned by MDI or any of its Subsidiaries and the improvements thereon are suitable for the purposes for which they are currently used. All of the real property owned by MDI or any of its Subsidiaries has all utilities required for the full and complete occupancy and operation thereof. There exist paved and publicly dedicated roads providing pedestrian and vehicular ingress and egress to and from all of such real property and no additional easements or licenses are required for such access. To the best of Stockholder's and MDI's knowledge, no fact or condition exists which could result in the termination or impairment of any access to any of the real property owned by MDI or any of its Subsidiaries, or which could result in a discontinuation of necessary water, sewer, telephone, gas, electric or other utilities or services to any of such real property. To the best of Stockholder's and MDI's knowledge, none of the improvements located on any of the real property owned by MDI or any of its Subsidiaries encroach onto adjoining land or onto any easements, and there is no encroachment of improvements from adjoining land onto any of such real property. To the best of Stockholder's and MDI's knowledge, none of the real property owned by MDI or any of its Subsidiaries is located in an area identified as having special flood or mud slide hazards or wet lands. To the best of Stockholder's and MDI's knowledge, there are no soil or geological conditions which might impair or adversely affect the current use of any of the real property owned by MDI or any of its Subsidiaries. No written notification has been received by Stockholder or MDI advising that the whole or any portion of the real property owned by MDI is being condemned or otherwise taken by any public authority. Except as set forth on Schedule 4.3(a) hereto4.14(a), K▇▇▇▇ has good the facilities, equipment and marketable title assets -------------- utilized by MDI and/or its Subsidiaries and/or necessary to the Owned Real Property, free operations of MDI's and/or its Subsidiaries' businesses are owned or leased by MDI and/or its Subsidiaries and clear of all Liens. Except as set forth on Schedule 4.3(a) hereto, (i) the buildings, structures, fixtures, building systems and equipment included in the Owned Real Property (collectively, the “Improvements”) are, taken as a whole, in good condition and repair, normal wear and tear excepted, except to the extent the failure to be in such condition or repair does are not materially impair the operation of the Owned Real Property as currently conducted and (ii) there are no material structural deficiencies affecting the Improvements. For purposes of the preceding sentence, “material” or “materially” means that the cost to repair or remedy any deficiency or condition would exceed the sum of $10,000. The classification of each parcel of Owned Real Property under applicable zoning laws, ordinances and regulations expressly permits the use and occupancy of such parcel and the operation of the Business as currently conducted thereon (and not merely as a prior non-conforming use or similar designation)obsolete, and permits the Improvements located thereon as currently constructed, used and occupied. There is no condemnation, expropriation or other proceeding in eminent domain, pending or, to the Knowledge of Sellers, threatened, affecting any parcel of Owned Real Property or any portion thereof or interest therein. (b) Sellers have previously provided or made available to Purchaser a true and correct copy of the L▇▇▇ Road Lease and each of the Farm Leases, each as amended as of the date hereof. Except as set forth on Schedule 4.3(b) hereto, with respect to each of the L▇▇▇ Road Lease and each of the Farm Leases: (i) such lease is valid and enforceable, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law; (ii) the transactions contemplated by this Agreement (including the Sublease) do not require the consent of any other party to such lease (other than the Seller Required Approvals), will not result in a breach of or default under such lease, and will not otherwise cause such lease to cease to be so valid and enforceable on terms substantially identical in all material respects following the Closing; (iii) Goodyear’s possession and quiet enjoyment of the Leased Real Property under the L▇▇▇ Road Lease is not presently disturbed and there are currently no disputes with respect to such lease; (iv) neither Goodyear nor the other party to the L▇▇▇ Road Lease, is in material breach or default under such lease; (v) Goodyear has not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and (vi) Goodyear has not collaterally assigned or granted any Lien in the L▇▇▇ Road Lease or any interest therein. (c) Except as set forth on Schedule 4.3(c) hereto, K▇▇▇▇ or Goodyear has obtained all Permits (other than Environmental Permits that are addressed in Section 4.18) required to be obtained by K▇▇▇▇ or Goodyear with respect to the Owned Real Property. (d) Except as otherwise set forth herein, the Purchased Assets constitute all of the assets, rights and properties (other than any Excluded Assets) used or held for use by Sellers in connection with the manufacture of Farm Tires at and necessary for the operation of the Freeport Facility as presently operated. (e) Schedule 2.1(a)(i) hereto sets forth a listing of all capital assets owned by Goodyear included in the Purchased Assets, other than Inventories, as of December 31, 2004. Except as set forth on Schedule 4.3(e)(i) hereto, and except with respect to such Purchased Assets as Goodyear has disposed of in the Ordinary Course of Business since December 31, 2004, Goodyear has good title to or an enforceable right to use all such Purchased Assets, free and clear of all Liens. All assets listed on Schedule 2.1(a)(i) are in good operating condition and repair sufficient for the operation of the business as presently conducted. Each of the leases under which the properties of MDI and its Subsidiaries are leased is unmodified and in full force and effect and there are no agreements between Stockholder, MDI or any of their respective Subsidiaries and any third parties claiming an interest in MDI's or its Subsidiaries' interest in the leased property occupied by MDI or its Subsidiaries or otherwise affecting its use and occupancy thereof. Neither MDI nor any of its Subsidiaries is in default under any of such leases and no defaults (whether or not subsequently cured) by MDI or its Subsidiaries have been alleged thereunder. To the best of MDI's and Stockholder's knowledge, each lessor named in any of such leases is not in default thereunder, and no defaults by such lessor have been alleged thereunder and are continuing. Schedule 4.14(a) also sets forth, with ---------------- respect to each lease (capitalized or otherwise) to which MDI or any of its Subsidiaries is a party which is a Material Agreement: (A) the parties to such lease; (B) the property covered by such lease; (C) a schedule of payments payable under such lease (both throughout the term of the lease and at the end of the lease); (D) whether MDI or any of its Subsidiaries has any rights or obligations to acquire any property which is subject to normal wear such lease and tear)the price and terms thereof; (E) the term of such lease; and (F) any options which MDI or any of its Subsidiaries may have to extend the term of such lease. Set forth on Schedule 4.14(a) is a list of the five largest lessors of ----------------- equipment (measured by dollar volume) to MDI and its Subsidiaries during the fiscal year ended September 30, are free from manufacturing flaws 1996, and have been maintained in accordance with Goodyear’s normal practices. (f) Goodyear has previously provided or made available respect to Purchaser a true each, the name and correct copy address and the dollar volume involved. The amortization of each capitalized lease is based on the useful life of the Personal Property Leases, each as amended as of the date hereof. Except as set forth in Schedule 4.3(f) hereto, each of the Personal Property Leases are, assuming due execution and delivery by the counterparties thereto, legal, valid and binding in all material respects, enforceable in all material respects in accordance with their terms, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and to general principals of equity, whether invoked in a proceeding in equity or at law. All such Personal Property Leases are free of any material default or breach thereof by Goodyearasset. (g) Schedule 4.3(g) lists all Permitted Liens as of January 31, 2005 to Sellers’ Knowledge.