Common use of Absence of Liens and Encumbrances Clause in Contracts

Absence of Liens and Encumbrances. (a) For purposes of this Agreement, a “Lien” shall mean any lien, encumbrance, mortgage, pledge, hypothecation, charge, security interest, title retention or restriction or security agreement or arrangement of any kind. “Permitted Lien” shall mean, collectively, any (i) Liens for Taxes, assessments or governmental charges or levies not yet due or, as disclosed on Schedule 3.5, being contested in good faith and any Liens for Taxes disclosed on Schedule 3.18, (ii) statutory Liens of carriers, warehousemen, mechanics, materialmen and the like arising in the ordinary course of business that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, disclosed on Schedule 3.5, (iii) easements, restrictive covenants, rights of way and other similar restrictions of record that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (iv) zoning, building and other similar restrictions that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (v) easements, encroachments and other minor imperfections of title that do not impair in any material respect the value of the Purchased Assets or the continued conduct of the Business or the continued use of any of the Purchased Assets in the manner currently conducted or used, (vi) in the case of leased property, all matters, whether or not of record, affecting the title of the lessor (and any underlying lessor) of the leased property so long as such matters do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (vii) any Lien created by a Purchasing Entity in connection with this Agreement, (viii) other Liens set forth on Schedule 3.5, (ix) Liens relating to deposits made in the ordinary course of business in connection with workers’ compensation, employment insurance and other types of social security, (x) Liens to secure the performance of leases, trade contracts or other similar agreements and securing executory obligations under any lease that constitutes an “operating lease” under GAAP, and (xi) Liens to secure payment obligations in connection with purchased property in the ordinary course of business. Except as set forth on Schedule 3.5, each of the applicable Selling Entities has good, and in the case of the US Assets, marketable title to or, in the case of leased properties and assets, valid leasehold interests in, all of the Purchased Assets free and clear of all Liens other than Permitted Liens. The Selling Entities own all of the assets primarily or exclusively used by them in the operation and conduct of the Business, or required by them for the normal conduct of the Business, and those assets are the absolute legal and beneficial property of the relevant Selling Entity, except for those assets leased by them under leases specifically identified on Schedule 3.6(c) and Schedule 3.8(d) hereto. Except as described on Schedule 3.6(c) and Schedule 3.8(d) hereto, no financing statement with respect to any of the Purchased Assets is active in any jurisdiction.

Absence of Liens and Encumbrances. (a) For purposes Apex and each of this Agreementits subsidiaries has good and marketable title to, a “Lien” shall mean any lienor valid leasehold interests in, encumbrance, mortgage, pledge, hypothecation, charge, security interest, title retention all its material properties and assets except for such as are no longer used or restriction useful in the conduct of its businesses or security agreement or arrangement as have been disposed of any kind. “Permitted Lien” shall mean, collectively, any (i) Liens for Taxes, assessments or governmental charges or levies not yet due or, as disclosed on Schedule 3.5, being contested in good faith and any Liens for Taxes disclosed on Schedule 3.18, (ii) statutory Liens of carriers, warehousemen, mechanics, materialmen and the like arising in the ordinary course of business that do not impair and except for defects in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedtitle, disclosed on Schedule 3.5, (iii) easements, restrictive covenants, rights covenants and similar encumbrances that individually or in the aggregate would not materially interfere with the ability of way and other similar restrictions of record that do not impair in any material respect the conduct of the Business Apex or the use of any of the Purchased Assets its subsidiaries to conduct its business as currently conducted. All such material assets and properties, other than assets and properties in the manner currently conducted which Apex or used, (iv) zoning, building and other similar restrictions that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedits subsidiaries has a leasehold interest, (v) easements, encroachments and other minor imperfections of title that do not impair in any material respect the value of the Purchased Assets or the continued conduct of the Business or the continued use of any of the Purchased Assets in the manner currently conducted or used, (vi) in the case of leased property, all matters, whether or not of record, affecting the title of the lessor (and any underlying lessor) of the leased property so long as such matters do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (vii) any Lien created by a Purchasing Entity in connection with this Agreement, (viii) other Liens set forth on Schedule 3.5, (ix) Liens relating to deposits made in the ordinary course of business in connection with workers’ compensation, employment insurance and other types of social security, (x) Liens to secure the performance of leases, trade contracts or other similar agreements and securing executory obligations under any lease that constitutes an “operating lease” under GAAP, and (xi) Liens to secure payment obligations in connection with purchased property in the ordinary course of business. Except as set forth on Schedule 3.5, each of the applicable Selling Entities has good, and in the case of the US Assets, marketable title to or, in the case of leased properties and assets, valid leasehold interests in, all of the Purchased Assets are free and clear of all Liens other than Permitted Liens. The Selling Entities own all except for Liens that (A) are created, arise or exist under or in connection with any of the assets primarily contracts or exclusively used by them other matters referred to in the operation Apex Schedules or in the Apex SEC Reports or the exhibits thereto, (B) relate to any taxes or other governmental charges or levies that are not yet due and conduct of the Businesspayable, (C) relate to, or required are created, arise or exist in connection with, any legal proceeding that is being contested in good faith, or (D) individually or in the aggregate would not materially interfere with the ability of Apex and each of its subsidiaries to conduct their business as currently conducted and would not materially and adversely impact the transferability, financeability, ownership, leasing, use, development or occupancy of any such properties or assets ("APEX PERMITTED LIENS"). To the knowledge of Apex, there are no natural or artificial conditions upon any real property owned by them for Apex ("APEX OWNED REAL PROPERTY"), or any other facts or conditions which could, in the normal conduct aggregate, have a material and adverse impact on the transferability, financeability, ownership, leasing, use, development, occupancy or operation of any such Apex Owned Real Property. There are no parties in possession of any portion of any Apex Owned Real Property, whether as tenants, trespassers or otherwise, except Apex. There are no pending, or, to the Businessknowledge of Apex, threatened assessments, improvements or activities of any public or quasi-public body either planned, in the process of construction or completed which may give rise to any assessment against any Apex Owned Real Property. Apex and each of its subsidiaries has complied in all material respects with and is not in default under the terms of all material leases to which it is a party, and those assets all such leases are in full force and effect. To the absolute legal and beneficial property knowledge of the relevant Selling Entity, except for those assets leased by them under leases specifically identified on Schedule 3.6(c) and Schedule 3.8(d) hereto. Except as described on Schedule 3.6(c) and Schedule 3.8(d) heretoApex, no financing statement party to any material lease is in default of such lease and there exists no event or circumstance with respect to such lease which with the giving of notice or the passage of time, or both, would constitute a default by any of the Purchased Assets is active in any jurisdictionparty to such lease.

Absence of Liens and Encumbrances. (a) For purposes of this Agreement, a “Lien” “ shall mean any lien, encumbrance, mortgage, pledge, hypothecation, charge, security interest, title retention or restriction or security agreement or arrangement of any kind. “Permitted Lien” “ shall mean, collectively, any (i) Liens for Taxes, assessments or governmental charges or levies not yet due or, as disclosed on Schedule 3.5, being contested in good faith and any Liens for Taxes disclosed on Schedule 3.18, (ii) statutory Liens of carriers, warehousemen, mechanics, materialmen and the like arising in the ordinary course of business that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, disclosed on Schedule 3.5, (iii) easements, restrictive covenants, rights of way and other similar restrictions of record that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (iv) zoning, building and other similar restrictions that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (v) easements, encroachments and other minor imperfections of title that do not impair in any material respect the value of the Purchased Assets or the continued conduct of the Business or the continued use of any of the Purchased Assets in the manner currently conducted or used, (vi) in the case of leased property, all matters, whether or not of record, affecting the title of the lessor (and any underlying lessor) of the leased property so long as such matters do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (vii) any Lien created by a Purchasing Entity in connection with this Agreement, (viii) other Liens set forth on Schedule 3.5, (ix) Liens relating to deposits made in the ordinary course of business in connection with workers’ compensation, employment insurance and other types of social security, (x) Liens to secure the performance of leases, trade contracts or other similar agreements and securing executory obligations under any lease that constitutes an “operating lease” “ under GAAP, and (xi) Liens to secure payment obligations in connection with purchased property in the ordinary course of business. Except as set forth on Schedule 3.5, each of the applicable Selling Entities has good, and in the case of the US Assets, marketable title to or, in the case of leased properties and assets, valid leasehold interests in, all of the Purchased Assets free and clear of all Liens other than Permitted Liens. The Selling Entities own all of the assets primarily or exclusively used by them in the operation and conduct of the Business, or required by them for the normal conduct of the Business, and those assets are the absolute legal and beneficial property of the relevant Selling Entity, except for those assets leased by them under leases specifically identified on Schedule 3.6(c) and Schedule 3.8(d) hereto. Except as described on Schedule 3.6(c) and Schedule 3.8(d) hereto, no financing statement with respect to any of the Purchased Assets is active in any jurisdiction.

Absence of Liens and Encumbrances. (a) For purposes Apex and each of this Agreementits subsidiaries has good and marketable title to, a “Lien” shall mean any lienor valid leasehold interests in, encumbrance, mortgage, pledge, hypothecation, charge, security interest, title retention all its material properties and assets except for such as are no longer used or restriction useful in the conduct of its businesses or security agreement or arrangement as have been disposed of any kind. “Permitted Lien” shall mean, collectively, any (i) Liens for Taxes, assessments or governmental charges or levies not yet due or, as disclosed on Schedule 3.5, being contested in good faith and any Liens for Taxes disclosed on Schedule 3.18, (ii) statutory Liens of carriers, warehousemen, mechanics, materialmen and the like arising in the ordinary course of business that do not impair and except for defects in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedtitle, disclosed on Schedule 3.5, (iii) easements, restrictive covenants, rights covenants and similar encumbrances that individually or in the aggregate would not materially interfere with the ability of way and other similar restrictions of record that do not impair in any material respect the conduct of the Business Apex or the use of any of the Purchased Assets its subsidiaries to conduct its business as currently conducted. All such material assets and properties, other than assets and properties in the manner currently conducted which Apex or used, (iv) zoning, building and other similar restrictions that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedits subsidiaries has a leasehold interest, (v) easements, encroachments and other minor imperfections of title that do not impair in any material respect the value of the Purchased Assets or the continued conduct of the Business or the continued use of any of the Purchased Assets in the manner currently conducted or used, (vi) in the case of leased property, all matters, whether or not of record, affecting the title of the lessor (and any underlying lessor) of the leased property so long as such matters do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (vii) any Lien created by a Purchasing Entity in connection with this Agreement, (viii) other Liens set forth on Schedule 3.5, (ix) Liens relating to deposits made in the ordinary course of business in connection with workers’ compensation, employment insurance and other types of social security, (x) Liens to secure the performance of leases, trade contracts or other similar agreements and securing executory obligations under any lease that constitutes an “operating lease” under GAAP, and (xi) Liens to secure payment obligations in connection with purchased property in the ordinary course of business. Except as set forth on Schedule 3.5, each of the applicable Selling Entities has good, and in the case of the US Assets, marketable title to or, in the case of leased properties and assets, valid leasehold interests in, all of the Purchased Assets are free and clear of all Liens other than Permitted Liens. The Selling Entities own all except for Liens that (A) are created, arise or exist under or in connection with any of the assets primarily contracts or exclusively used by them other matters referred to in the operation Apex Schedules or in the Apex SEC Reports or the exhibits thereto, (B) relate to any taxes or other governmental charges or levies that are not yet due and conduct of the Businesspayable, (C) relate to, or required are created, arise or exist in connection with, any legal proceeding that is being contested in good faith, or (D) individually or in the aggregate would not materially interfere with the ability of Apex and each of its subsidiaries to conduct their business as currently conducted and would not materially and adversely impact the transferability, financeability, ownership, leasing, use, development or occupancy of any such properties or assets ("APEX PERMITTED LIENS"). To the knowledge of Apex, there are no natural or artificial conditions upon any real property owned by them for Apex ("APEX OWNED REAL PROPERTY"), or any other facts or conditions which could, in the normal conduct aggregate, have a material and adverse impact on the transferability, financeability, ownership, leasing, use, development, occupancy or operation of any such Apex Owned Real Property. There are no parties in possession of any portion of any Apex Owned Real Property, whether as tenants, trespassers or otherwise, except Apex. There are no pending, or, to the Businessknowledge of Apex, threatened assessments, -44- 50 improvements or activities of any public or quasi-public body either planned, in the process of construction or completed which may give rise to any assessment against any Apex Owned Real Property. Apex and each of its subsidiaries has complied in all material respects with and is not in default under the terms of all material leases to which it is a party, and those assets all such leases are in full force and effect. To the absolute legal and beneficial property knowledge of the relevant Selling Entity, except for those assets leased by them under leases specifically identified on Schedule 3.6(c) and Schedule 3.8(d) hereto. Except as described on Schedule 3.6(c) and Schedule 3.8(d) heretoApex, no financing statement party to any material lease is in default of such lease and there exists no event or circumstance with respect to such lease which with the giving of notice or the passage of time, or both, would constitute a default by any of the Purchased Assets is active in any jurisdictionparty to such lease.

Absence of Liens and Encumbrances. (a) For purposes Cybex and each of this Agreementits subsidiaries has good and marketable title to, a “Lien” shall mean any lienor valid leasehold interests in, encumbrance, mortgage, pledge, hypothecation, charge, security interest, title retention all its material properties and assets except for such as are no longer used or restriction useful in the conduct of its businesses or security agreement or arrangement as have been disposed of any kind. “Permitted Lien” shall mean, collectively, any (i) Liens for Taxes, assessments or governmental charges or levies not yet due or, as disclosed on Schedule 3.5, being contested in good faith and any Liens for Taxes disclosed on Schedule 3.18, (ii) statutory Liens of carriers, warehousemen, mechanics, materialmen and the like arising in the ordinary course of business that do not impair and except for defects in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedtitle, disclosed on Schedule 3.5, (iii) easements, restrictive covenants, rights covenants and similar encumbrances that individually or in the aggregate would not materially interfere with the ability of way and other similar restrictions of record that do not impair in any material respect the conduct of the Business Cybex or the use of any of the Purchased Assets its subsidiaries to conduct its business as currently conducted. All such material assets and properties, other than assets and properties in the manner currently conducted which Cybex or used, (iv) zoning, building and other similar restrictions that do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or usedits subsidiaries has a leasehold interest, (v) easements, encroachments and other minor imperfections of title that do not impair in any material respect the value of the Purchased Assets or the continued conduct of the Business or the continued use of any of the Purchased Assets in the manner currently conducted or used, (vi) in the case of leased property, all matters, whether or not of record, affecting the title of the lessor (and any underlying lessor) of the leased property so long as such matters do not impair in any material respect the conduct of the Business or the use of any of the Purchased Assets in the manner currently conducted or used, (vii) any Lien created by a Purchasing Entity in connection with this Agreement, (viii) other Liens set forth on Schedule 3.5, (ix) Liens relating to deposits made in the ordinary course of business in connection with workers’ compensation, employment insurance and other types of social security, (x) Liens to secure the performance of leases, trade contracts or other similar agreements and securing executory obligations under any lease that constitutes an “operating lease” under GAAP, and (xi) Liens to secure payment obligations in connection with purchased property in the ordinary course of business. Except as set forth on Schedule 3.5, each of the applicable Selling Entities has good, and in the case of the US Assets, marketable title to or, in the case of leased properties and assets, valid leasehold interests in, all of the Purchased Assets are free and clear of all Liens other than Permitted Liens. The Selling Entities own all except for Liens that (A) are created, arise or exist under or in connection with any of the assets primarily contracts or exclusively used by them other matters referred to in the operation Cybex Schedules or in the Cybex SEC Reports or the exhibits thereto, (B) relate to any taxes or other governmental charges or levies that are not yet due and conduct of the Businesspayable, (C) relate to, or required are created, arise or exist in connection with, any legal proceeding that is being contested in good faith, or (D) individually or in the aggregate would not materially interfere with the ability of Cybex and each of its subsidiaries to conduct their business as currently conducted and would not materially and adversely impact the transferability, financeability, ownership, leasing, use, development or occupancy of any such properties or assets ("CYBEX PERMITTED LIENS"). To the knowledge of Cybex, there are no natural or artificial conditions upon any real property owned by them for Cybex ("CYBEX OWNED REAL PROPERTY"), or any other facts or conditions which could, in the normal conduct aggregate, have a material and adverse impact on the transferability, financeability, ownership, leasing, use, development, occupancy or operation of any such Cybex Owned Real Property. There are no parties in possession of any portion of any Cybex Owned Real Property, whether as tenants, trespassers or otherwise, except Cybex. There are no pending, or, to the Businessknowledge of Cybex, threatened assessments, improvements or activities of any public or quasi-public body either planned, in the process of construction or completed which may give rise to any assessment against any Cybex Owned Real Property. Cybex and each of its subsidiaries has complied in all material respects with and is not in default under the terms of all material leases to which it is a party, and those assets all such leases are in full force and effect. To the absolute legal and beneficial property knowledge of the relevant Selling Entity, except for those assets leased by them under leases specifically identified on Schedule 3.6(c) and Schedule 3.8(d) hereto. Except as described on Schedule 3.6(c) and Schedule 3.8(d) heretoCybex, no financing statement party to any material lease is in default of such lease and there exists no event or circumstance with respect to such lease which with the giving of notice or the passage of time, or both, would constitute a default by any of the Purchased Assets is active in any jurisdictionparty to such lease.