HEREIN AS
THE "LEASED REAL PROPERTY"; THE LEASED REAL PROPERTY, TOGETHER WITH THE OWNED
REAL PROPERTY, COLLECTIVELY BEING THE "COMPANY REAL PROPERTY").
NEITHER THE
COMPANY NOR ANY OF THE RETAINED SUBSIDIARIES IS A PARTY TO ANY CONTRACT (OTHER
THAN A LEASE) WITH THE LESSOR OF ANY OF THE LEASED REAL PROPERTIES, WHICH GIVES
SUCH LESSOR ANY RIGHT TO TERMINATE OR ADVERSELY ALTER THE TERMS OF THE LEASE TO
WHICH SUCH LESSOR IS A PARTY.
EXCEPT AS SET FORTH IN SCHEDULE 5.11 AND
SCHEDULE 5.17, THE COMPANY OR THE RETAINED SUBSIDIARIES ENJOYS PEACEFUL AND
UNDISTURBED POSSESSION OF THE LEASED REAL PROPERTY PURSUANT TO THE LEASES IN ALL
MATERIAL RESPECTS EXCEPT FOR LEASES EXPIRING IN ACCORDANCE WITH THEIR TERMS
AFTER THE DATE HEREOF AND PRIOR TO THE CLOSING DATE.
NO OPTION HAS BEEN
EXERCISED UNDER ANY OF SUCH LEASES, EXCEPT OPTIONS WHOSE EXERCISE HAS BEEN
EVIDENCED BY A WRITTEN DOCUMENT, A TRUE AND COMPLETE COPY OF WHICH HAS BEEN
DELIVERED OR MADE AVAILABLE TO THE BUYER WITH THE CORRESPONDING LEASE.
(C)
EXCEPT AS SET FORTH ON SCHEDULE 5.12(C),
SINCE JULY 31, 2005, NO LEASE HAS BEEN MODIFIED OR AMENDED IN WRITING IN ANY WAY
MATERIALLY ADVERSE TO THE OPERATION OF THE BUSINESSES AND NO PARTY TO ANY LEASE
HAS GIVEN EITHER OF THE COMPANY OR THE RETAINED SUBSIDIARIES WRITTEN NOTICE OF
OR, TO THE SELLER'S KNOWLEDGE, MADE A CLAIM WITH RESPECT TO ANY BREACH OR
DEFAULT.
(D)
EXCEPT AS SET FORTH IN SCHEDULE 5.12(D) AND
OTHER THAN WITH RESPECT TO IRUS, CO-LOCATION, CROSS-CONNECTION, INTERCONNECTION,
ENTRANCE FACILITIES OR OTHER RIGHTS INCIDENTAL TO THE PROVISION OF SERVICES
ESTABLISHED IN THE ORDINARY COURSE OF BUSINESS, NONE OF THE COMPANY REAL
PROPERTY IS SUBJECT TO ANY OPTION, LEASE, SUBLEASE, LICENSE OR OTHER AGREEMENT
GRANTING TO ANY PERSON OR ENTITY ANY RIGHT TO THE USE, OCCUPANCY OR ENJOYMENT OF
SUCH PROPERTY OR ANY PORTION THEREOF OR TO OBTAIN TITLE TO ALL OR ANY PORTION OF
SUCH PROPERTY.
(E)
EXCEPT AS SET FORTH ON SCHEDULE 5.12(E),
ALL MATERIAL IMPROVEMENTS, SYSTEMS AND FIXTURES ON THE COMPANY REAL PROPERTY ARE
IN GOOD OPERATING CONDITION AND REPAIR, AND GENERALLY ARE ADEQUATE AND SUITABLE
IN ALL MATERIAL RESPECTS FOR THE PRESENT AND CONTINUED USE, OPERATION AND
MAINTENANCE THEREOF AS NOW USED, OPERATED OR MAINTAINED.
ALL IMPROVEMENTS ON
THE COMPANY REAL PROPERTY CONSTRUCTED BY OR ON BEHALF OF THE COMPANY OR ANY
RETAINED SUBSIDIARY, TO THE SELLER'S KNOWLEDGE, WERE CONSTRUCTED IN COMPLIANCE
IN ALL MATERIAL RESPECTS WITH APPLICABLE LAWS, ORDINANCES AND REGULATIONS
AFFECTING SUCH COMPANY REAL PROPERTY, EXCEPT FOR POSSIBLE NONCONFORMING USES OR
VIOLATIONS THAT DO NOT AND WILL NOT INTERFERE WITH THE PRESENT USE, OPERATION OR
MAINTENANCE THEREOF BY EITHER OF THE COMPANY OR THE RETAINED SUBSIDIARIES AS NOW
USED, OPERATED OR MAINTAINED OR ACCESS THERETO, AND NEITHER OF THE COMPANY OR
THE RETAINED
23
SUBSIDIARIES HAS RECEIVED ANY WRITTEN NOTICE, OR TO THE SELLER'S KNOWLEDGE, ANY
VERBAL NOTICE, TO THE CONTRARY.
SECTION 5.13.
ASSETS OF THE COMPANY AND ITS SUBSIDIARIES.
(A)
THE COMPANY AND THE RETAINED SUBSIDIARIES
OWN, LICENSE UNDER