Common use of Certain Assets Clause in Contracts

Certain Assets. (a) The Company or a Company Subsidiary has good and valid title to or the right to use all the assets reflected on the Financial Statements or thereafter acquired, other than those disposed of since the date of the Financial Statements in the ordinary course of business consistent with past practice, in each case free and clear of all Liens except (i) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business with respect to obligations that are not delinquent, (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (iii) Liens for Taxes that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves, in accordance with GAAP, have been established, (iv) Liens that are released in connection with the Closing by operation of, as the case may be, the Plan, the Confirmation Order, the Bankruptcy Code or otherwise, (v) rights reserved to the lessors or licensors of any of the assets of the Company or any Company Subsidiary, and the restrictions, conditions, restrictive covenants and limitations in respect thereof pursuant to the terms of any Contract, which, in each case, (X) do not constitute security interests or similar interests and, (Y) individually or in the aggregate, do not materially detract from the value of, or impair the use of, such property to or by the business; (vi) Liens that secure debt that is reflected as a liability on the Financial Statements or Liens the existence of which is referred to in the notes to the Financial Statements (which Liens in this clause (vi) will be fully discharged as of the repayment of the Company’s debtor-in-possession credit facility as in effect as of the date of this Agreement (the “Existing DIP Facility”) or as of the Closing) and (vii) other imperfections of title or encumbrances, if any, that, individually or in the aggregate, do not materially impair, and could not reasonably be expected materially to impair, the continued use and operation of the assets to which they relate in the conduct of the business of the Company and the Company Subsidiaries as presently conducted and as currently proposed by the Company to be conducted (the Liens described in clauses (i) through (iii), (v) and (vii) above are referred to collectively as “Permitted Liens”). (b) This Section 2.08 does not relate to real property or interests in real property, such items being the subject of Section 2.09, or to Intellectual Property, such items being the subject of Section 2.10.

Certain Assets. (a) The Except as set forth on Schedule 7.3, the Company or a Company Subsidiary (i) has good and valid marketable title to all of the material assets and properties used in the Company's Business or the right to use all the assets otherwise reflected on the Financial Statements 1998 Balance Sheet and to all assets and properties acquired by the Company since such date that would, had it been acquired prior to such date, be capitalized on or thereafter acquiredincluded in such balance sheet (except for assets and properties sold, other than those consumed or otherwise disposed of since by the date of the Financial Statements Company in the ordinary course of business consistent with past practicesince the date thereof), and (ii) has good title to all leasehold estates in all material assets and properties which it leases, in each case case, free and clear of all Liens except for (iA) mechanics’Liens in favor of Seafirst Bank as set forth on Schedule 7.3, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred which will be paid in the ordinary course of business with respect to obligations that are not delinquentfull and terminated at Closing, (iiB) Liens arising under original purchase price conditional sales contracts for current Taxes not yet due and equipment leases with third parties entered into payable or for Taxes the validity of which is being contested in good faith and for which adequate reserves have been established on the 1998 Balance Sheet, (C) statutory mechanics', materialmen's and other similar Liens which have arisen in the ordinary course of business, and (iiiD) Liens for Taxes that are not yet due and payable contemplated by this Agreement or are being contested in good faith by appropriate proceedings and for which adequate reserves, in accordance with GAAP, have been established, (iv) Liens that are released in connection with the Closing by operation of, as the case may be, the Plan, the Confirmation Order, the Bankruptcy Code or otherwise, (v) rights reserved to the lessors or licensors of any of the assets Exhibits or Schedules hereto or by any of the Company or any Company Subsidiary, and the restrictions, conditions, restrictive covenants and limitations in respect thereof pursuant to the terms of any Contract, which, in each case, (X) do not constitute security interests or similar interests and, (Y) individually or in the aggregate, do not materially detract from the value of, or impair the use of, such property to or by the business; (vi) Liens that secure debt that is reflected as a liability on the Financial Statements or Liens the existence of which is documents referred to herein or therein. To Sellers' Knowledge, all material assets and properties owned or leased by it are in the notes to the Financial Statements (which Liens in this clause (vi) will be fully discharged as of the repayment of the Company’s debtor-in-possession credit facility as in effect as of the date of this Agreement (the “Existing DIP Facility”) or as of the Closing) good operating condition and (vii) other imperfections of title or encumbrances, if any, that, individually or in the aggregate, do not materially impair, repair except for reasonable wear and could not reasonably be expected materially to impair, the continued use and operation of the assets to which they relate in the conduct of the business of the Company and the Company Subsidiaries as presently conducted and as currently proposed by the Company to be conducted (the Liens described in clauses (i) through (iii), (v) and (vii) above are referred to collectively as “Permitted Liens”)tear. (b) This Section 2.08 does not relate Each lease or other agreement pursuant to real property which the Company leases any material assets or interests properties is a legal, valid and binding obligation of the Company and, to Sellers' Knowledge, each other party thereto. Except as set forth on Schedule 7.3, neither the Company nor, to Sellers' Knowledge, any other party thereto, is in real propertymaterial breach or default of any such lease or other agreement. The Company enjoys undisturbed possession under all such leases or other agreements. (c) Schedule 7.3 sets forth a true and complete list of all banks, brokerage firms, trust companies or savings and loan associations in which the Company has an account or safe deposit box, and the persons authorized to have access to, draw on or authorize transactions in such items being account or safe deposit box, and the subject names of Section 2.09all Persons, if any, holding powers of attorney from the Company and a summary statement as to the terms thereof. (d) The Company owns, or has the right to Intellectual Propertyuse pursuant to valid leases and licenses, such items being all assets that are necessary for the subject conduct of Section 2.10the Business.

Certain Assets. To the extent Seller and its Subsidiaries (a) The Company or a Company Subsidiary has good and valid title to or the right to use all the assets reflected on the Financial Statements or thereafter acquired, other than the Asset Sellers and the Transferred Entities) (i) have rights under Contracts Related to the Business to which Seller or its Subsidiaries are a party, including those disposed of since the date set forth in Section 2.02(e) of the Financial Statements Disclosure Schedule (the “Assigned Contracts”), (ii) own domain names Related to the Business, including those set forth in Section 2.02(e) of the ordinary course Disclosure Schedule (the “Assigned Domain Names”) or (iii) own personal computers (i.e., desktop or laptop computers, and excluding servers, enterprise and similar hardware), tablets and cellular telephones used by the Transferred Employees (the “Assigned Hardware”), (A) at the Closing, Seller shall, and Seller shall cause each such Subsidiary to, sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller and each such Subsidiary, all of business consistent with past practiceSeller’s and each such Subsidiary’s right, title, and interest under the Assigned Contracts, Assigned Domain Names and Assigned Hardware (and possession and control thereof, as applicable), in each case case, free and clear of all Liens except (iother than Permitted Liens), which Assigned Contracts, Assigned Domain Names and Assigned Hardware shall be considered “Assumed Contracts” and “Transferred Assets”, as applicable, for purposes of this Agreement, and (B) mechanics’Buyer shall, carriers’effective at the time of the Closing, workmen’sassume and thereafter timely pay, repairmen’s or other like Liens arising or incurred in the ordinary course of business with respect to obligations that are not delinquent, (ii) Liens arising under original purchase price conditional sales contracts discharge and equipment leases with third parties entered into in the ordinary course of business, (iii) Liens for Taxes that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves, perform in accordance with GAAPtheir terms, have been establishedall Liabilities of Seller and such Subsidiaries to the extent arising from or related to the Assigned Contracts, (iv) Liens that are released in connection with the Closing by operation ofAssigned Domain Names and Assigned Hardware, as the case may besame shall exist on or after the Closing Date and irrespective of whether the same shall arise prior to, on or following the PlanClosing Date, the Confirmation Order, the Bankruptcy Code or otherwise, (v) rights reserved to the lessors or licensors of any of the assets of the Company or any Company Subsidiary, and the restrictions, conditions, restrictive covenants and limitations in respect thereof pursuant to the terms of any Contract, which, in each case, (X) do not constitute security interests or similar interests and, (Y) individually or in the aggregate, do not materially detract from the value of, or impair the use of, such property to or by the business; (vi) Liens that secure debt that is reflected as a liability on the Financial Statements or Liens the existence of which is referred to in the notes to the Financial Statements (which Liens in this clause (vi) will Liabilities shall be fully discharged as of the repayment of the Company’s debtor-in-possession credit facility as in effect as of the date considered “Assumed Liabilities” for purposes of this Agreement (except to the “Existing DIP Facility”extent such Liabilities are from or relate to facts, matters and circumstances for which Seller is required to indemnify Buyer and the Buyer Indemnified Parties pursuant to Section 12.02(a)). Notwithstanding anything to the contrary in this Agreement, Buyer shall not purchase, acquire or accept, or assume or be required pay, discharge or perform any Liabilities under, any Contract listed on Section 2.02(e) or as of the Closing) and (vii) other imperfections of title or encumbrances, if any, that, individually or in the aggregate, do not materially impair, and could not reasonably be expected materially to impair, the continued use and operation of the assets to which they relate in the conduct of the business of the Company and the Company Subsidiaries as presently conducted and as currently proposed by the Company to be conducted (the Liens described in clauses (i) through (iii), (v) and (vii) above are referred to collectively as “Permitted Liens”)Disclosure Schedule. (b) This Section 2.08 does not relate to real property or interests in real property, such items being the subject of Section 2.09, or to Intellectual Property, such items being the subject of Section 2.10.

Certain Assets. (a) The Company Seller owns, leases or a Company Subsidiary has good and valid title to or the legal right to use all the assets reflected on the Financial Statements or thereafter acquired, other than those disposed of since the date of the Financial Statements Purchased Assets, subject to the lessor’s, or any other third party’s, rights in any lease agreement set forth on Schedule 3.8, and further subject to any Permitted Liens. (b) To the Knowledge of Seller, the Related Entities own, lease or have the legal right to use all of their assets used in the ordinary course Business, subject to the lessor’s, or any other third party’s, rights in any lease agreement set forth on Schedule 3.8, and further subject to any Permitted Liens. (c) With respect to each Assigned Contract, Seller enjoys the right to the benefits of business consistent such Contract in accordance with past practiceits terms. Seller owns and has good, in each case marketable, indefeasible and insurable title to, or, to the extent any leasehold estates, easement estates or license rights are to be transferred or conveyed hereunder, has valid and subsisting estates, easement estates, interests or licensee rights in, the Purchased Assets, free and clear of all Liens and Liabilities, except for Permitted Liens and Assumed Liabilities, and further subject to the lessor’s, or any other third party’s, rights in any lease agreement set forth on Schedule 3.8. (d) Subject to obtaining the Consents set forth on Schedule 3.6(d), Seller has the full right to convey, transfer, assign and deliver the Purchased Assets as provided herein. Without limiting the generality of the foregoing, Seller (A) has not granted, or agreed to grant, (1) any ownership interest or right in, or with respect to, any Purchased Asset or (2) any right to acquire or receive any Purchased Asset or any interest or right therein or with respect thereto, and (B) is not a party to, or bound by, any Contract, other than the Transaction Documents, affecting or relating to a right to transfer any Purchased Asset (or any interest or right therein or with respect thereto) that, in the case of either of foregoing clause (A) or (B), has had, or could reasonably be expected to result in, a Material Adverse Effect on the ability of Buyer (or its Affiliates) to utilize the Purchased Assets as contemplated by this Agreement and the other Transaction Documents. (e) At the Closing, Seller shall transfer and deliver to Buyer (or its Affiliates), and Buyer (or its Affiliates) shall, receive, the interests and rights of Seller in all Purchased Assets (other than with respect to the Assigned Contracts requiring any Consent), free and clear of any Lien or Liability, except for Permitted Liens. Without limiting the generality of the foregoing, at the Closing, Seller shall transfer and deliver to Buyer (or its Affiliates), and Buyer (or its Affiliates) shall receive, valid title to the Facilities owned by Seller, the Personal Property of Seller and all other Purchased Assets, free and clear of any Lien, except for Permitted Liens. (f) Except as set forth on Schedule 3.6(f), the Facilities and all Personal Property of Seller and the Related Entities are in good operating condition and repair, subject to ordinary wear and tear. (g) Schedule 3.6(g) sets forth a true, correct and complete list of all Personal Property of Seller and the Related Entities with a book value in excess of $50,000. (h) Except for the leases set forth on Schedule 3.6(h), none of the Purchased Assets are subject to any material Contract pursuant to which Seller, any Affiliate of Seller, a Related Entity or another Person is a lessee or lessor of, or holds, manages or operates, any Purchased Asset. Except as set forth on Schedule 3.6(h), neither Seller nor any of the Related Entities, is a party to any material Contract under which: (i) mechanics’it is a lessee or lessor of, carriers’or holds, workmen’smanages or operates, repairmen’s any property (real or personal) owned by any Person other like Liens arising than Seller or incurred a Related Entity that is exclusively or primarily used in the ordinary course of business with respect to obligations that are not delinquentoperation of, or otherwise in connection with, the Business, or (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into any property, real or personal, owned by Seller or a Related Entity that is exclusively or primarily used in the ordinary course of business, (iii) Liens for Taxes that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves, in accordance with GAAP, have been established, (iv) Liens that are released in connection with the Closing by operation of, or otherwise in connection with, the Business is held, occupied, operated or managed by a Person other than Seller or a Related Entity. With respect to each lease set forth on Schedule 3.6(h) pursuant to which Seller or a Related Entity is described therein as the case may belessee thereunder, it is the Plan, the Confirmation Order, the Bankruptcy Code or otherwise, (v) rights reserved to the lessors or licensors of any legal owner and holder of the assets leasehold estates purported to be granted by such lease. (i) Schedule 3.6(i) sets forth a general description of the Company or any Company SubsidiaryOwned Real Property of each Related Entity, and the restrictions, conditions, restrictive covenants and limitations in respect thereof pursuant to the terms interest of any Contract, which, Related Entity in each case, (X) do such Owned Real Property. Seller does not constitute security interests or similar interests and, (Y) individually or in the aggregate, do not materially detract from the value of, or impair the use of, such property to or by the business; (vi) Liens that secure debt that is reflected as a liability on the Financial Statements or Liens the existence of which is referred to in the notes to the Financial Statements (which Liens in this clause (vi) will be fully discharged as of the repayment of the Company’s debtor-in-possession credit facility as in effect as of the date of this Agreement (the “Existing DIP Facility”) or as of the Closing) and (vii) other imperfections of title or encumbrances, if any, that, individually or in the aggregate, do not materially impair, and could not reasonably be expected materially to impair, the continued use and operation of the assets to which they relate in the conduct of the business of the Company and the Company Subsidiaries as presently conducted and as currently proposed by the Company to be conducted (the Liens described in clauses (i) through (iii), (v) and (vii) above are referred to collectively as “Permitted Liens”)own any Real Property. (bj) This Section 2.08 does not relate to real property or interests in real propertySchedule 3.6(j) sets forth a general description of the Leased Real Property of Seller and each Related Entity, such items being and the subject interest of Section 2.09, or to Intellectual Property, such items being the subject of Section 2.10.Seller and any Related Entity in