FOR THE US
MEDIA BUSINESS, BASED ON REVENUES FOR THE MONTH OF DECEMBER, 2008;
(III)
THE TOP 50 PARTNER/PUBLISHER CONTRACTS FOR
THE EU MEDIA BUSINESS, BASED ON REVENUES FOR THE CALENDAR QUARTER ENDED
DECEMBER 31, 2008;
(IV)
THE TOP 50 ADVERTISER CONTRACTS FOR THE EU
MEDIA BUSINESS, BASED ON REVENUES FOR THE MONTH OF DECEMBER, 2008;
(V)
ALL CONTRACTS RELATING TO INDEBTEDNESS FOR
BORROWED MONEY;
(VI)
ALL CONTRACTS THAT LIMIT OR PURPORT TO LIMIT
THE ABILITY OF THE MEDIA BUSINESS TO COMPETE IN ANY LINE OF BUSINESS OR WITH ANY
PERSON OR IN ANY GEOGRAPHIC AREA OR DURING ANY PERIOD OF TIME;
(VII)
ANY CONTRACT WITH ANY GOVERNMENTAL AUTHORITY;
(VIII)
ANY CONTRACT RELATING TO THE MEDIA BUSINESS THAT
INVOLVES A RELATED PARTY OF A SELLER OR ANY OF ITS SUBSIDIARIES;
(IX)
ALL JOINT VENTURE, LEGAL PARTNERSHIP OR
SIMILAR CONTRACTS;
(X)
ANY CONTRACT RELATING TO THE LEASE, SALE
OR PURCHASE OF REAL PROPERTY USED OR INTENDED TO BE USED IN THE MEDIA BUSINESS;
(XI)
ANY CONTRACT RELATING TO SETTLEMENT OF ANY
ADMINISTRATIVE OR JUDICIAL PROCEEDINGS WITHIN THE PAST FIVE YEARS;
(XII)
ANY COMMERCIAL AGENCY AGREEMENT WITHIN THE
MEANING OF THE UK COMMERCIAL AGENTS (COUNCIL DIRECTIVE) REGULATIONS 1993; OR
(XIII)
OTHER THAN IN RESPECT OF ANY PARTNER/PUBLISHER
OR ADVERTISER CONTRACT, ANY OTHER CONTRACT POTENTIALLY INVOLVING $50,000
PAYMENTS PER ANNUM EITHER TO ANY OF THE SELLERS OR OWED BY ANY OF THE SELLERS IN
RELATION TO THE MEDIA BUSINESS.
[***] = Confidential treatment requested for redacted portion; redacted portion
has been filed separately with the Securities and Exchange Commission.
23
(B)
EACH MATERIAL CONTRACT IS VALID AND BINDING
ON A SELLER AND, TO THE KNOWLEDGE OF THE SELLERS, THE COUNTERPARTIES THERETO,
AND IS IN FULL FORCE AND EFFECT.
NONE OF THE SELLERS IS IN BREACH OF, OR
DEFAULT UNDER, ANY MATERIAL CONTRACT TO WHICH IT IS A PARTY, EXCEPT FOR SUCH
BREACHES OR DEFAULTS THAT WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
THE SELLERS HAVE
DELIVERED OR MADE AVAILABLE TO THE BUYERS TRUE AND COMPLETE COPIES OF ALL
MATERIAL CONTRACTS, INCLUDING ANY AMENDMENTS THERETO.
THERE ARE NO GUARANTEED
MINIMUM PAYMENTS, ORDERS OR VOLUME REQUIREMENTS IMPOSED UPON ANY OF THE SELLERS
OR THAT WILL BE IMPOSED UPON ANY OF THE BUYERS IMMEDIATELY AFTER CLOSING UNDER
ANY MATERIAL CONTACT SPECIFIED BY CLAUSE (I), (II), (III) OR (IV) OF THE
FOREGOING SECTION 3.15(A).
SELLERS REPRESENT AND WARRANT THAT THE COLLOCATION
SERVICE AGREEMENT EFFECTIVE DECEMBER 27, 2005 BY AND BETWEEN NTT AMERICA, INC.
AND MIVA DIRECT, AS AMENDED TO DATE, WILL NOT TERMINATE SOONER THAN THAT DATE
WHICH IS 30 DAYS FROM THE DATE HEREOF.
Section 3.16
Personal Property.
(A)
SCHEDULE 3.16(A) OF THE DISCLOSURE
SCHEDULES SETS FORTH A TRUE AND COMPLETE LIST OF (I) ALL PERSONAL PROPERTY WHICH
IS INCLUDED IN THE TRANSFERRED ASSETS AND HAVING AN ORIGINAL COST OF $50,000 OR
MORE OR, AND (II) EACH LEASE OF PERSONAL PROPERTY WHICH IS INCLUDED IN THE
TRANSFERRED ASSETS, INCLUDING, IN EACH CASE, THE EXPIRATION DATE