NECESSARY TO MAKE THE
STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING; PROVIDED THAT, AS TO FINANCIAL PROJECTIONS, IF ANY, THAT
HAVE BEEN PREPARED BY THE BORROWER AND MADE AVAILABLE TO THE AGENT, ANY LENDER
OR ANY POTENTIAL LENDER, THE BORROWER ONLY REPRESENTS AND WARRANTS THAT SUCH
FINANCIAL PROJECTIONS HAVE BEEN PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS
BELIEVED BY THE MANAGEMENT OF THE BORROWER TO BE REASONABLE AT THE TIME OF
PREPARATION (IT BEING UNDERSTOOD SUCH PROJECTIONS ARE SUBJECT TO SIGNIFICANT
UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE BORROWER'S
CONTROL, AND THAT NO ASSURANCE CAN BE GIVEN THAT THE PROJECTIONS WILL BE
REALIZED AND THE VARIATIONS THEREFROM MAY BE MATERIAL).
SECTION 3.15.
NO UNDISCLOSED DIVIDEND RESTRICTIONS.
EXCEPT FOR RESTRICTIONS
HEREUNDER, AND EXCEPT FOR RESTRICTIONS ON THE PAYMENT OF DIVIDENDS UNDER
APPLICABLE LAW, NONE OF THE SUBSIDIARIES (OTHER THAN THE EXCLUDED SUBSIDIARY) IS
SUBJECT TO ANY AGREEMENT, AMENDMENT, COVENANT OR UNDERSTANDING THAT DIRECTLY OR
INDIRECTLY (THROUGH THE APPLICATION OF FINANCIAL COVENANTS OR OTHERWISE)
RESTRICTS THE ABILITY OF SUCH ENTITY TO DECLARE OR PAY DIVIDENDS.
SECTION 3.16.
PROPERTIES.
(A)
THE BORROWER AND EACH SUBSIDIARY HAS GOOD TITLE
TO, OR VALID LEASEHOLD INTERESTS IN, ALL ITS PROPERTY (OTHER THAN INTELLECTUAL
PROPERTY) MATERIAL TO ITS BUSINESS (INCLUDING ITS MORTGAGED PROPERTIES), EXCEPT
WHERE THE FAILURE TO HAVE SUCH TITLE OR LEASEHOLD INTEREST COULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE MATERIAL
ADVERSE EFFECT.
(B)
THE BORROWER AND EACH SUBSIDIARY (OTHER THAN THE EXCLUDED SUBSIDIARY) OWNS,
OR IS LICENSED TO USE, ALL TRADEMARKS, TRADENAMES, COPYRIGHTS, PATENTS AND OTHER
INTELLECTUAL PROPERTY MATERIAL TO THE OPERATION OF ITS BUSINESS, AND, TO THE
KNOWLEDGE OF THE BORROWER, THE USE THEREOF BY THE BORROWER AND THE SUBSIDIARIES
DOES NOT INFRINGE UPON THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON,
EXCEPT FOR ANY SUCH INFRINGEMENTS THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD
NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(C)
AS OF THE RESTATEMENT EFFECTIVE DATE, NEITHER THE BORROWER NOR ANY
DESIGNATED SUBSIDIARY OWNS ANY PARCEL OF REAL PROPERTY IN FEE.
SECTION 3.17.
COLLATERAL MATTERS.
(A)
THE COLLATERAL AGREEMENT, UPON
EXECUTION AND DELIVERY THEREOF BY THE PARTIES THERETO, WILL CREATE IN FAVOR OF
THE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, A VALID AND ENFORCEABLE
SECURITY INTEREST IN THE COLLATERAL (AS DEFINED THEREIN) AND (I) WHEN THE
COLLATERAL CONSTITUTING CERTIFICATED SECURITIES (AS DEFINED IN THE UNIFORM
COMMERCIAL CODE) IS DELIVERED TO THE AGENT, TOGETHER WITH INSTRUMENTS OF
TRANSFER DULY ENDORSED IN BLANK, THE SECURITY INTEREST CREATED
52
UNDER THE COLLATERAL AGREEMENT WILL CONSTITUTE A FULLY PERFECTED SECURITY
INTEREST IN ALL RIGHT, TITLE AND INTEREST OF THE PLEDGORS THEREUNDER IN SUCH
COLLATERAL, PRIOR AND SUPERIOR IN RIGHT TO ANY OTHER PERSON, AND (II) WHEN
FINANCING STATEMENTS IN APPROPRIATE FORM ARE FILED IN THE APPLICABLE FILING
OFFICES, THE SECURITY INTEREST CREATED UNDER THE COLLATERAL AGREEMENT WILL
CONSTITUTE A FULLY PERFECTED SECURITY INTEREST IN ALL RIGHT, TITLE AND INTEREST
OF THE LOAN PARTIES IN