IN, EACH ACQUIRED ASSET, FREE AND CLEAR OF ALL LIENS (EXCLUDING
PERMITTED ENCUMBRANCES).
EXCEPT AS SET FORTH IN SCHEDULE 4.3 OR SCHEDULE 4.10
OF THE SELLER DISCLOSURE SCHEDULE, SELLER HAS THE COMPLETE AND UNRESTRICTED
POWER AND UNQUALIFIED RIGHT TO SELL, ASSIGN, TRANSFER, CONVEY, AND DELIVER THE
ACQUIRED ASSETS TO BUYER WITHOUT PENALTY OR OTHER ADVERSE CONSEQUENCES.
AS OF
THE CLOSING, BUYER WILL HAVE GOOD, VALID, AND MARKETABLE TITLE, OR IN THE CASE
OF LEASEHOLD INTERESTS, VALID AND SUBSISTING LEASEHOLD INTERESTS IN, EACH
ACQUIRED ASSET, FREE AND CLEAR OF ALL LIENS (EXCLUDING PERMITTED ENCUMBRANCES),
WITHOUT INCURRING ANY PENALTY OR OTHER ADVERSE CONSEQUENCE, INCLUDING, WITHOUT
LIMITATION, ANY INCREASE IN RENTALS, ROYALTIES, OR LICENSE OR OTHER FEES IMPOSED
AS A RESULT OF, OR ARISING FROM, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE COLLATERAL AGREEMENTS.
(B)
TO THE KNOWLEDGE OF SELLER, NO REASONABLE
BASIS EXISTS FOR THE ASSERTION OF ANY CLAIM WHICH, IF ADVERSELY DETERMINED,
COULD RESULT IN A LIEN (OTHER THAN PERMITTED ENCUMBRANCES) ON ANY ACQUIRED ASSET
OR OTHERWISE ADVERSELY AFFECT ANY ACQUIRED ASSET OR THE OWNERSHIP, OPERATION,
MAINTENANCE, OR USE BY BUYER OF ANY ACQUIRED ASSET OR THE ABILITY OF BUYER TO
MARKET, SELL, LEASE, LICENSE, ASSIGN, OR TRANSFER ANY ACQUIRED ASSET.
(C)
THE ACQUIRED ASSETS CONSTITUTE ALL OF THE
PROPERTIES, ASSETS, AND RIGHTS THAT (I) FORM A PART OF THE BUSINESS OF SELLER;
(II) ARE USED, HELD FOR USE, OR INTENDED TO BE HELD FOR USE IN SUCH BUSINESS;
AND (III) ARE NECESSARY TO CONDUCT SUCH BUSINESS AS CURRENTLY CONDUCTED OR
CURRENTLY CONTEMPLATED TO BE CONDUCTED.
(D)
EACH ACQUIRED ASSET THAT IS A TANGIBLE ASSET
IS AND WILL BE AT THE CLOSING IN GOOD OPERATING CONDITION, REGULARLY AND
PROPERLY MAINTAINED, SUBJECT TO NORMAL WEAR AND TEAR.
SCHEDULE 4.10(D)
IDENTIFIES WHERE EACH OF THE TANGIBLE ASSETS IS CURRENTLY LOCATED AND WILL BE
LOCATED AS OF THE CLOSING DATE.
(E)
SELLER IS IN CUSTODY AND CONTROL OF EACH OF
THE ACQUIRED ASSETS BEING SOLD AND TRANSFERRED BY SELLER TO BUYER PURSUANT TO
THIS AGREEMENT AND THE COLLATERAL AGREEMENTS.
NO OTHER PERSON HAS ANY RECORD OR
POSSESSORY INTEREST IN ANY ACQUIRED ASSET.
(F)
BUYER WILL BE ABLE TO USE THE ACQUIRED
ASSETS AND EXERCISE, AND ENJOY THE BENEFITS OF, THE ACQUIRED ASSETS, IN
SUBSTANTIALLY THE SAME MANNER AS SELLER PRIOR TO THE CLOSING, WITHOUT INFRINGING
THE RIGHTS OF ANY THIRD PARTY.
(G)
SELLER HAS SOLE AND EXCLUSIVE OWNERSHIP,
FREE AND CLEAR OF ANY LIENS (OTHER THAN PERMITTED ENCUMBRANCES), OF ALL CUSTOMER
LISTS, CUSTOMER CONTACT INFORMATION, CUSTOMER CORRESPONDENCE, AND CUSTOMER
PAYMENT HISTORIES RELATING TO THE ACQUIRED ASSETS (THE "CUSTOMER
31
INFORMATION").
NO PERSON OTHER THAN SELLER POSSESSES ANY CLAIMS OR RIGHTS WITH
RESPECT TO USE OF THE CUSTOMER INFORMATION, EXCEPT WITH RESPECT TO THE RIGHTS OF
CUSTOMERS, IF ANY, TO ENFORCE RESTRICTIONS ON USE OF CUSTOMER INFORMATION
ARISING UNDER APPLICABLE PRIVACY OR SIMILAR LAWS.
4.11
Intellectual Property.
(A)
SCHEDULE 4.11(A) CONTAINS A COMPLETE AND
ACCURATE LIST AND BRIEF DESCRIPTION OF ALL SELLER PRODUCTS.
ALL SELLER OWNED
INTELLECTUAL PROPERTY IS OWNED