in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary or any ERISA Affiliate has at all
times been operated in compliance with the provisions of Part 6 of subtitle B of
Title I of ERISA and Section 4980B of the Code; no Lien imposed under the Code
or ERISA on the assets of the Borrower or any Subsidiary or any ERISA Affiliate
exists or is reasonably likely to arise on account of any Plan; and the Borrower
and its Subsidiaries do not maintain or contribute to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan the obligations with respect to which could reasonably
be expected to have a material adverse effect on the ability of the Borrower to
perform its obligations under this Agreement.
44
5.15
SUBSIDIARIES.
ON AND AS OF THE INITIAL BORROWING DATE AND AFTER GIVING
EFFECT TO THE CONSUMMATION OF THE TRANSACTION, THE BORROWER HAS NO SUBSIDIARIES
OTHER THAN THOSE SUBSIDIARIES LISTED ON ANNEX III, WHICH CORRECTLY SETS FORTH,
AS OF THE INITIAL BORROWING DATE, THE PERCENTAGE OWNERSHIP (DIRECT AND INDIRECT)
OF THE BORROWER IN EACH CLASS OF CAPITAL STOCK OR OTHER EQUITY INTERESTS OF EACH
OF ITS SUBSIDIARIES AND ALSO IDENTIFIES THE DIRECT OWNER THEREOF.
ALL
OUTSTANDING SHARES OF CAPITAL STOCK OR OTHER EQUITY INTERESTS OF EACH SUBSIDIARY
OF THE BORROWER HAVE BEEN DULY AND VALIDLY ISSUED, ARE FULLY PAID AND
NON-ASSESSABLE AND ARE FREE OF PREEMPTIVE RIGHTS.
NO SUBSIDIARY OF THE BORROWER
HAS OUTSTANDING ANY SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR ITS CAPITAL
STOCK OR OTHER EQUITY INTERESTS OR OUTSTANDING ANY RIGHT TO SUBSCRIBE FOR OR TO
PURCHASE, OR ANY OPTIONS OR WARRANTS FOR THE PURCHASE OF, OR ANY AGREEMENT
PROVIDING FOR THE ISSUANCE (CONTINGENT OR OTHERWISE) OF OR ANY CALLS,
COMMITMENTS OR CLAIMS OF ANY CHARACTER RELATING TO, ITS CAPITAL STOCK OR OTHER
EQUITY INTERESTS OR ANY STOCK APPRECIATION OR SIMILAR RIGHTS.
5.16
INTELLECTUAL PROPERTY.
EACH OF THE BORROWER AND ITS SUBSIDIARIES OWNS OR
HOLDS A VALID TRANSFERABLE LICENSE TO USE ALL THE PATENTS, TRADEMARKS, SERVICE
MARKS, TRADE NAMES, DOMAIN NAMES, TECHNOLOGY, KNOW-HOW, COPYRIGHTS, LICENSES,
FRANCHISES AND FORMULAS OR RIGHTS WITH RESPECT TO THE FOREGOING, THAT ARE USED
IN THE OPERATION OF THE BUSINESS OF THE BORROWER OR SUCH SUBSIDIARY AS PRESENTLY
CONDUCTED AND ARE MATERIAL TO SUCH BUSINESS WHERE THE FAILURE TO OWN OR HOLD A
VALID LICENSE IS REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
5.17
ENVIRONMENTAL MATTERS.
EACH OF THE BORROWER AND ITS SUBSIDIARIES IS IN
MATERIAL COMPLIANCE WITH ALL APPLICABLE ENVIRONMENTAL LAWS GOVERNING ITS
BUSINESS FOR WHICH FAILURE TO COMPLY IS REASONABLY LIKELY TO HAVE A MATERIAL
ADVERSE EFFECT, AND NEITHER THE BORROWER NOR ANY OF ITS SUBSIDIARIES IS LIABLE
FOR ANY MATERIAL PENALTIES, FINES OR FORFEITURES FOR FAILURE TO COMPLY WITH ANY
OF THE FOREGOING IN