and has not violated or
infringed, any intellectual property rights of any other person or entity.
To
such Borrower's Knowledge no third party is infringing on the rights of such
Borrower in and to such Proprietary Rights.
3.10
Material Contracts.
(a)
All material agreements
of each Borrower (collectively, the "Material Contracts") are included as
exhibits to the Parent's filings with the SEC.
The SEC Reports disclose all
financing arrangements of the Borrowers relating to the assets or liabilities of
the Borrowers.
(B)
ASSUMING THE DUE EXECUTION AND DELIVERY BY
THE OTHER PARTIES THERETO, EACH OF SUCH MATERIAL CONTRACTS IS AS OF THE DATE
HEREOF LEGAL, VALID AND BINDING, AND IN FULL FORCE AND EFFECT, AND ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS, SUBJECT TO (I) LAWS OF GENERAL APPLICATION
RELATING TO BANKRUPTCY, INSOLVENCY, AND THE RELIEF OF DEBTORS, AND (II) RULES OF
LAW GOVERNING SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF, OR OTHER EQUITABLE
REMEDIES.
THERE IS NO MATERIAL BREACH, VIOLATION OR DEFAULT BY A BORROWER UNDER
ANY SUCH MATERIAL CONTRACT, AND TO EACH BORROWER'S KNOWLEDGE, (X) NO MATERIAL
CONTRACT HAS EXPIRED OR BEEN TERMINATED IN ACCORDANCE WITH ITS TERMS AND (Y) NO
EVENT (INCLUDING, WITHOUT LIMITATION, THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT) HAS OCCURRED WHICH, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD
(A) CONSTITUTE A MATERIAL BREACH, VIOLATION OR DEFAULT BY A BORROWER UNDER ANY
SUCH MATERIAL CONTRACT, OR (B) GIVE RISE TO ANY LIEN (OTHER THAN A PERMITTED
LIEN) OR RIGHT OF TERMINATION, MODIFICATION, CANCELLATION, PREPAYMENT,
SUSPENSION, LIMITATION, REVOCATION OR ACCELERATION AGAINST A BORROWER UNDER ANY
SUCH MATERIAL CONTRACT, WHICH EXPIRATION, TERMINATION OR EVENT WOULD CAUSE A
MATERIAL ADVERSE EFFECT.
EXCEPT AS DISCLOSED IN THE SEC REPORTS, NEITHER
BORROWER IS AND, TO THE SUCH BORROWER'S KNOWLEDGE, NO OTHER PARTY TO ANY OF SUCH
MATERIAL CONTRACT IS IN ARREARS IN RESPECT OF THE PERFORMANCE OR SATISFACTION OF
ANY MATERIAL TERMS OR CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED UNDER
ANY OF SUCH MATERIAL CONTRACT, AND NEITHER BORROWER HAS AND, TO SUCH BORROWER'S
KNOWLEDGE, NO OTHER PARTY THERETO HAS GRANTED OR BEEN GRANTED ANY MATERIAL
WAIVER OR INDULGENCE UNDER ANY OF SUCH MATERIAL CONTRACT OR REPUDIATED ANY
PROVISION THEREOF.
3.11
Absence of Undisclosed Liabilities.
Except as
set forth in the SEC Reports or arising in the ordinary course since the date of
the most recent balance sheet filed with the SEC, neither Borrower has any
liabilities of any type, whether absolute or contingent.
3.12
Absence of Conflicts.
Neither Borrower is in
violation of or default under any provision of its Certificate of Incorporation
or its Bylaws.
The execution, delivery, and performance of, and compliance with
the Loan Documents and this Agreement, and the consummation of the transactions
contemplated hereby and thereby, have not and will not:
(A)
VIOLATE, CONFLICT WITH OR RESULT IN A
BREACH OF ANY PROVISION OF OR CONSTITUTE A DEFAULT (OR AN EVENT WHICH, WITH
NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN
THE TERMINATION OF, OR ACCELERATE THE PERFORMANCE