OWNER OF EACH INSTRUMENT, SECURITY AND OTHER TYPE OF
INVESTMENT PROPERTY LISTED ON EXHIBIT "D" AS BEING OWNED BY IT, FREE AND CLEAR
OF ANY LIENS, EXCEPT FOR THE SECURITY INTEREST GRANTED TO THE ADMINISTRATIVE
AGENT FOR THE BENEFIT OF THE HOLDERS OF SECURED OBLIGATIONS HEREUNDER OR AS
PERMITTED BY SECTION 6.02 OF THE CREDIT AGREEMENT.
EACH GRANTOR FURTHER
REPRESENTS AND WARRANTS THAT (I) ALL SUCH INSTRUMENTS, SECURITIES OR OTHER TYPES
OF INVESTMENT PROPERTY WHICH ARE SHARES OF STOCK IN A CORPORATION OR OWNERSHIP
INTERESTS IN A PARTNERSHIP OR LIMITED LIABILITY COMPANY CONSTITUTE THE
PERCENTAGE OF THE ISSUED AND OUTSTANDING SHARES OF STOCK (OR OTHER EQUITY
INTERESTS) OF THE RESPECTIVE ISSUERS THEREOF INDICATED ON EXHIBIT "D" HERETO AND
(II) WITH RESPECT TO ANY CERTIFICATES DELIVERED TO THE ADMINISTRATIVE AGENT
REPRESENTING AN OWNERSHIP INTEREST IN A PARTNERSHIP OR LIMITED LIABILITY
COMPANY, EITHER SUCH CERTIFICATES ARE SECURITIES AS DEFINED IN ARTICLE 8 OF THE
NEW YORK UCC OF THE APPLICABLE JURISDICTION AS A RESULT OF ACTIONS BY THE ISSUER
OR OTHERWISE, OR, IF SUCH CERTIFICATES ARE NOT SECURITIES, SUCH GRANTOR HAS SO
INFORMED THE ADMINISTRATIVE AGENT SO THAT THE ADMINISTRATIVE AGENT MAY TAKE
STEPS TO PERFECT ITS SECURITY INTEREST THEREIN AS A GENERAL INTANGIBLE.
6
3.10.
INTELLECTUAL PROPERTY.
3.10.1
EXHIBIT "B" CONTAINS A COMPLETE AND ACCURATE LISTING AS OF THE EFFECTIVE
DATE OF ALL MATERIAL INTELLECTUAL PROPERTY, INCLUDING, BUT NOT LIMITED TO THE
FOLLOWING: (I) STATE, U.S. AND FOREIGN TRADEMARK REGISTRATIONS, APPLICATIONS FOR
TRADEMARK REGISTRATION AND MATERIAL COMMON LAW TRADEMARKS, (II) U.S. AND FOREIGN
PATENTS AND PATENTS APPLICATIONS, TOGETHER WITH ALL REISSUANCES, CONTINUATIONS,
CONTINUATIONS IN PART, REVISIONS, EXTENSIONS, AND REEXAMINATIONS THEREOF, (III)
U.S. AND FOREIGN COPYRIGHT REGISTRATIONS AND APPLICATIONS FOR REGISTRATION, (IV)
FOREIGN INDUSTRIAL DESIGN REGISTRATIONS AND INDUSTRIAL DESIGN APPLICATIONS, (V)
DOMAIN NAMES, (VI) MATERIAL PROPRIETARY COMPUTER SOFTWARE, AND (VII) ALL FORMS
OF INTELLECTUAL PROPERTY DESCRIBED IN CLAUSES (I)-(III) ABOVE THAT ARE OWNED BY
A THIRD PARTY AND LICENSED TO THE GRANTORS OR OTHERWISE USED BY THE GRANTORS
UNDER CONTRACT EXCEPT WHERE THE INABILITY TO USE SUCH INTELLECTUAL PROPERTY
COULD NOT BE REASONABLY EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
ALL OF
THE U.S. REGISTRATIONS, APPLICATIONS FOR REGISTRATION OR APPLICATIONS FOR
ISSUANCE OF THE INTELLECTUAL PROPERTY ARE VALID AND SUBSISTING, IN GOOD STANDING
AND ARE RECORDED OR IS IN THE PROCESS OF BEING RECORDED IN THE NAME OF THE
APPLICABLE GRANTOR.
3.10.2
ON THE EFFECTIVE DATE, THE INTELLECTUAL PROPERTY SCHEDULED ON EXHIBIT B,
WHICH IS REGISTERED WITH A GOVERNMENTAL AUTHORITY, IS VALID, SUBSISTING AND
ENFORCEABLE AND HAS NOT BEEN ABANDONED OR ADJUDGED INVALID OR UNENFORCEABLE, IN
WHOLE OR IN PART EXCEPT AS COULD NOT BE REASONABLY EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT.
EACH GRANTOR HAS GOOD, MARKETABLE AND EXCLUSIVE TITLE
TO, AND THE VALID AND ENFORCEABLE POWER AND RIGHT TO SELL, LICENSE, TRANSFER,
DISTRIBUTE, USE AND OTHERWISE EXPLOIT, SUCH INTELLECTUAL PROPERTY.
3.10.3
TO EACH GRANTOR'S KNOWLEDGE, ON THE EFFECTIVE DATE, NO PERSON HAS
VIOLATED, INFRINGED UPON OR BREACHED, OR IS CURRENTLY VIOLATING, INFRINGING UPON
OR BREACHING, ANY OF