OR CHARGE UPON ANY OF THE PROPERTIES OR ASSETS OF THE
OPERATING COMPANY.
3.1.10
INTELLECTUAL PROPERTY.
(a)
To the knowledge of the Operating Company, the Operating Company owns, has
licensed, or has the right to use, all of the patents, trademarks, service
marks, copyrights, trade names, software and trade secrets, and any applications
therefor or registrations thereof (collectively, "Intellectual Property") used
in the conduct of its business as now conducted, except as would not,
individually or in the aggregate, have a Material Adverse Effect on the
Operating Company.
(b)
Unless otherwise disclosed to SKT Holdings or SKT in writing or orally at a
meeting of the Board of Directors of Management Company or as provided on
Schedule 3.1.10, to the knowledge of the Operating Company, (i) it is not
infringing upon or misappropriating any Intellectual Property of any third
Person, and (ii) no third Person is infringing upon or misappropriating any
Intellectual Property of the Operating Company, except in each case as such
infringement or misappropriation would not have a Material Adverse Effect on the
Operating Company. The Operating Company has not received any written notice of
any claimed conflict with respect to any of the foregoing that would have a
Material Adverse Effect on the Operating Company, except as has been disclosed
to SKT Holdings or SKT.
(c)
The Operating Company has taken commercially reasonable steps to secure all
trade secret, proprietary, confidential or other non-public information material
to the Operating Company (collectively "Confidential Information") from general
access.
3.1.11
LITIGATION, ETC. EXCEPT AS HAS BEEN PREVIOUSLY DISCLOSED TO SKT
HOLDINGS OR SKT IN WRITING OR ORALLY AT A MEETING OF THE BOARD OF DIRECTORS OF
MANAGEMENT COMPANY OR AS PROVIDED ON SCHEDULE 3.1.11, THERE ARE NO ACTIONS,
SUITS, OR PROCEEDINGS OF WHICH THE OPERATING COMPANY HAS RECEIVED NOTICE PENDING
BEFORE ANY COURT OR GOVERNMENTAL ENTITY OR,
10
TO THE KNOWLEDGE OF THE OPERATING COMPANY, THREATENED AGAINST THE OPERATING
COMPANY, WHICH WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE OPERATING COMPANY, OR
WHICH SEEK RESCISSION OF, SEEK TO ENJOIN THE CONSUMMATION OF, OR WHICH QUESTIONS
THE VALIDITY OF, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
3.1.12
MATERIAL AGREEMENTS. EACH MATERIAL AGREEMENT IS A VALID AND BINDING
OBLIGATION OF THE OPERATING COMPANY, AS APPLICABLE, AND, TO THE KNOWLEDGE OF THE
OPERATING COMPANY, EACH OTHER PARTY THERETO, ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS EXCEPT (I) AS LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM, FRAUDULENT TRANSFER AND OTHER LAWS OF GENERAL
APPLICATION AFFECTING ENFORCEMENT OF CREDITORS' RIGHT GENERALLY, AND (II) AS
LIMITED BY LAWS RELATING TO THE AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE
RELIEF, OR OTHER EQUITABLE REMEDIES, AND HAS BEEN DULY EXECUTED AND DELIVERED BY
THE OPERATING COMPANY AND, TO THE KNOWLEDGE OF THE OPERATING COMPANY, EACH OTHER
PARTY THERETO. TO THE KNOWLEDGE OF THE OPERATING COMPANY, THERE IS NO EXISTING
DEFAULT OR BREACH BY THE OPERATING COMPANY, EXCEPT FOR ANY DEFAULT OR BREACH
THAT WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE OPERATING COMPANY.
3.1.13
GOVERNMENTAL CONSENT, ETC.