COPYRIGHTS, COPYRIGHT APPLICATIONS, INTERNET DOMAIN
NAMES, FRANCHISES, AUTHORIZATIONS AND OTHER INTELLECTUAL PROPERTY RIGHTS
(INCLUDING ALL INTELLECTUAL PROPERTY) THAT ARE USED IN THE OPERATIONS OF THEIR
RESPECTIVE BUSINESSES, WITHOUT INFRINGEMENT UPON OR CONFLICT WITH THE RIGHTS OF
ANY OTHER PERSON WITH RESPECT THERETO, INCLUDING ALL TRADE NAMES ASSOCIATED WITH
ANY PRIVATE LABEL BRANDS OF THE BORROWER OR ITS SUBSIDIARIES EXCEPT, IN EACH
CASE, AS WILL NOT HAVE A MATERIAL ADVERSE EFFECT.
TO THE KNOWLEDGE OF THE
BORROWER, NO LICENSE, PERMIT, PATENT, PATENT APPLICATION, TRADEMARK, TRADEMARK
APPLICATION, SERVICE MARK, TRADE NAME, COPYRIGHT, COPYRIGHT APPLICATION,
INTERNET DOMAIN NAME, FRANCHISE, AUTHORIZATION, OTHER INTELLECTUAL PROPERTY
RIGHT (INCLUDING ALL INTELLECTUAL PROPERTY), SLOGAN OR OTHER ADVERTISING DEVICE,
PRODUCT, PROCESS, METHOD, SUBSTANCE, PART OR COMPONENT, OR OTHER MATERIAL NOW
EMPLOYED, OR NOW CONTEMPLATED TO BE EMPLOYED, BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES INFRINGES UPON OR CONFLICTS WITH ANY RIGHTS OWNED BY ANY OTHER
PERSON, NO CLAIM OR LITIGATION REGARDING ANY OF THE FOREGOING IS PENDING OR
THREATENED AND, THERE IS NO INFRINGEMENT BY THIRD PARTIES OF ANY OF THE
FOREGOING EXCEPT, IN EACH CASE, AS WILL NOT HAVE A MATERIAL ADVERSE EFFECT.
4.22
STATUS AS SENIOR DEBT.
THE LOANS AND OTHER
OBLIGATIONS OF THE BORROWER CONSTITUTE SENIOR INDEBTEDNESS OF THE BORROWER
RANKING AT LEAST PARI PASSU IN RIGHT OF PAYMENT WITH ALL OTHER UNSECURED
INDEBTEDNESS OF THE BORROWER.
4.23
DISCLOSURE.
THE CONFIDENTIAL INFORMATION
MEMORANDUM DATED JUNE 2007 AND ALL OTHER INFORMATION PREPARED OR FURNISHED BY OR
ON BEHALF OF THE BORROWER IN CONNECTION WITH THIS AGREEMENT OR THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THEREUNDER TAKEN AS A WHOLE, IS
COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS AND DOES NOT CONTAIN ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED THEREIN OR HEREIN NOT MISLEADING IN LIGHT OF
THE CIRCUMSTANCES IN WHICH THE SAME WERE MADE.
ALL FINANCIAL PROJECTIONS, IF
ANY, THAT HAVE
63
BEEN BE PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED TO BE REASONABLE
AT THE TIME MADE AND FURNISHED TO THE JOINT LEAD ARRANGERS, IT BEING UNDERSTOOD
THAT ACTUAL RESULTS MAY VARY MATERIALLY FROM FINANCIAL PROJECTIONS.
4.24
USE OF PROCEEDS.
THE PROCEEDS OF THE LOANS ARE
BEING USED BY THE BORROWER (AND, TO THE EXTENT DISTRIBUTED TO THEM BY ANY
BORROWER, EACH OTHER CREDIT PARTY) SOLELY TO FINANCE THE TRANSACTIONS.
4.25
PERFECTION OF SECURITY INTERESTS.
(A)
PLEDGE AND SECURITY AGREEMENT.
THE PLEDGE
AND SECURITY AGREEMENT IS EFFECTIVE TO CREATE IN FAVOR OF THE COLLATERAL AGENT
FOR THE BENEFIT OF THE SECURED PARTIES, LEGAL, VALID AND ENFORCEABLE LIENS ON,
AND SECURITY INTERESTS IN, THE PLEDGE AND SECURITY AGREEMENT COLLATERAL AND,
WHEN (I) FINANCING STATEMENTS AND OTHER FILINGS IN APPROPRIATE FORM ARE FILED IN
THE OFFICES SPECIFIED ON SCHEDULE 7 TO THE PERFECTION CERTIFICATE AND (II) UPON
THE TAKING OF POSSESSION OR CONTROL BY THE COLLATERAL AGENT OF THE PLEDGE AND
SECURITY AGREEMENT COLLATERAL WITH RESPECT TO WHICH A SECURITY INTEREST MAY BE
PERFECTED ONLY BY POSSESSION OR CONTROL