NOT MADE IN
THE ORDINARY COURSE OF BUSINESS.
2.11.
NO DEFAULTS.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES IS IN
MATERIAL DEFAULT (A) UNDER ITS CERTIFICATE OF INCORPORATION OR ITS BY-LAWS OR
ANY NOTE, INDENTURE, MORTGAGE, LEASE, AGREEMENT, CONTRACT, PURCHASE ORDER OR
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO WHICH IT IS A PARTY OR (B) WITH
RESPECT TO ANY ORDER, WRIT, INJUNCTION OR DECREE OF ANY COURT OR ANY FEDERAL,
STATE, MUNICIPAL OR OTHER GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD, BUREAU,
AGENCY OR INSTRUMENTALITY, DOMESTIC OR FOREIGN, THAT SPECIFICALLY NAMES THE
COMPANY OR ANY OF ITS SUBSIDIARIES.
TO THE BEST OF THE COMPANY'S KNOWLEDGE,
THERE EXISTS NO CONDITION, EVENT OR ACT WHICH AFTER NOTICE, LAPSE OF TIME, OR
BOTH, WOULD CONSTITUTE A DEFAULT BY THE COMPANY OR ANY OF ITS SUBSIDIARIES UNDER
ANY OF THE FOREGOING.
TO THE BEST OF THE COMPANY'S KNOWLEDGE, NO THIRD PARTY IS
IN DEFAULT UNDER ANY AGREEMENT, CONTRACT OR OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY, WHICH
DEFAULT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE ASSETS OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES OR THE BUSINESS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES,
AS PRESENTLY CONDUCTED OR PROPOSED TO BE CONDUCTED.
6
2.12.
INTELLECTUAL PROPERTY.
(A)
EXCEPT AS LISTED IN SECTION 2.12(A) OF THE DISCLOSURE SCHEDULE,
THE COMPANY AND EACH OF ITS SUBSIDIARIES OWNS, FREE AND CLEAR OF ANY MORTGAGE,
PLEDGE, SECURITY INTEREST, ENCUMBRANCE OR OTHER LIEN, OR HAS THE VALID RIGHT TO
USE ALL INTELLECTUAL PROPERTY (AS DEFINED BELOW) USED BY IT IN ITS BUSINESS AS
CURRENTLY CONDUCTED OR AS PROPOSED TO BE CONDUCTED.
TO THE BEST OF THE
COMPANY'S KNOWLEDGE, NO OTHER PERSON OR ENTITY (OTHER THAN LICENSORS OF SOFTWARE
THAT IS GENERALLY COMMERCIALLY AVAILABLE AND NON-EXCLUSIVE LICENSEES OF THE
COMPANY'S OR ANY OF ITS SUBSIDIARIES' INTELLECTUAL PROPERTY IN THE ORDINARY
COURSE OF THE COMPANY'S OR ANY OF ITS SUBSIDIARIES' BUSINESS) HAS ANY RIGHTS TO
NOR IS CLAIMING ANY RIGHTS TO ANY OF THE INTELLECTUAL PROPERTY OWNED OR USED BY
THE COMPANY OR ANY OF ITS SUBSIDIARIES, AND, TO THE COMPANY'S KNOWLEDGE, NO
OTHER PERSON OR ENTITY IS INFRINGING, VIOLATING OR MISAPPROPRIATING ANY OF THE
INTELLECTUAL PROPERTY USED BY THE COMPANY OR ANY OF ITS SUBSIDIARIES.
FOR
PURPOSES OF THIS AGREEMENT, "INTELLECTUAL PROPERTY" MEANS ALL (I) PATENTS AND
PATENT APPLICATIONS, (II) COPYRIGHTS AND REGISTRATIONS THEREOF, (III) MASK WORKS
AND REGISTRATIONS AND APPLICATIONS FOR REGISTRATION THEREOF, (IV) COMPUTER
SOFTWARE, DATA AND DOCUMENTATION, (V) TRADE SECRETS AND CONFIDENTIAL BUSINESS
INFORMATION, WHETHER PATENTABLE OR UNPATENTABLE AND WHETHER OR NOT REDUCED TO
PRACTICE, KNOW-HOW, MANUFACTURING AND PRODUCTION PROCESSES AND TECHNIQUES,
RESEARCH AND DEVELOPMENT INFORMATION AND DATA, COPYRIGHTABLE WORKS, FINANCIAL,
MARKETING AND BUSINESS DATA, PRICING AND COST INFORMATION, BUSINESS AND
MARKETING PLANS AND CUSTOMER AND SUPPLIER LISTS AND INFORMATION, (VI)
TRADEMARKS, SERVICE MARKS, TRADE NAMES, DOMAIN NAMES AND APPLICATIONS AND
REGISTRATIONS THEREFOR AND (VII) ANY EXCLUSIVE LICENSES OR OTHER PROPRIETARY
RIGHTS RELATING TO ANY OF THE FOREGOING.
(B)
TO THE BEST OF THE COMPANY'S KNOWLEDGE,