OTHER ARRANGEMENTS
OF SUCH BORROWER OR GUARANTOR AS IN EFFECT ON THE DATE HEREOF (COLLECTIVELY,
TOGETHER WITH SUCH AGREEMENTS OR OTHER ARRANGEMENTS AS MAY BE ENTERED INTO BY
ANY BORROWER OR GUARANTOR AFTER THE DATE HEREOF, COLLECTIVELY, THE "LICENSE
AGREEMENTS" AND INDIVIDUALLY, A "LICENSE AGREEMENT").
NO TRADEMARK,
SERVICEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY AT ANY TIME USED BY ANY
BORROWER OR GUARANTOR WHICH IS OWNED BY ANOTHER PERSON, OR OWNED BY SUCH
BORROWER OR GUARANTOR SUBJECT TO ANY SECURITY INTEREST, LIEN, COLLATERAL
ASSIGNMENT, PLEDGE OR OTHER ENCUMBRANCE IN FAVOR OF ANY PERSON OTHER THAN AGENT,
IS AFFIXED TO ANY ELIGIBLE INVENTORY, EXCEPT (A) TO THE EXTENT PERMITTED UNDER
THE TERM OF THE LICENSE AGREEMENTS LISTED ON SCHEDULE 8.11 TO THE INFORMATION
CERTIFICATE AND (B) TO THE EXTENT THE SALE OF INVENTORY TO WHICH SUCH
INTELLECTUAL PROPERTY IS AFFIXED IS PERMITTED TO BE SOLD BY SUCH BORROWER OR
GUARANTOR UNDER APPLICABLE LAW (INCLUDING THE UNITED STATES COPYRIGHT ACT OF
1976).
8.12
SUBSIDIARIES; AFFILIATES; CAPITALIZATION; SOLVENCY.
(A)
EACH BORROWER AND GUARANTOR DOES NOT HAVE ANY DIRECT OR
INDIRECT SUBSIDIARIES OR AFFILIATES AND IS NOT ENGAGED IN ANY JOINT VENTURE OR
PARTNERSHIP EXCEPT AS SET FORTH IN SCHEDULE 8.12 TO THE INFORMATION CERTIFICATE.
74
(B)
EACH BORROWER AND GUARANTOR IS THE RECORD AND BENEFICIAL
OWNER OF ALL OF THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF EACH OF
THE SUBSIDIARIES LISTED ON SCHEDULE 8.12 TO THE INFORMATION CERTIFICATE AS BEING
OWNED BY SUCH BORROWER OR GUARANTOR AND THERE ARE NO PROXIES, IRREVOCABLE OR
OTHERWISE, WITH RESPECT TO SUCH SHARES AND NO EQUITY SECURITIES OF ANY OF THE
SUBSIDIARIES ARE OR MAY BECOME REQUIRED TO BE ISSUED BY REASON OF ANY OPTIONS,
WARRANTS, RIGHTS TO SUBSCRIBE TO, CALLS OR COMMITMENTS OF ANY KIND OR NATURE AND
THERE ARE NO CONTRACTS, COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY WHICH ANY
SUBSIDIARY IS OR MAY BECOME BOUND TO ISSUE ADDITIONAL SHARES OF IT CAPITAL STOCK
OR SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR SUCH SHARES.
(C)
THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF
EACH BORROWER (OTHER THAN PARENT) AND GUARANTOR ARE DIRECTLY AND BENEFICIALLY
OWNED AND HELD BY THE PERSONS INDICATED IN THE INFORMATION CERTIFICATE, AND IN
EACH CASE ALL OF SUCH SHARES HAVE BEEN DULY AUTHORIZED AND ARE FULLY PAID AND
NON-ASSESSABLE, FREE AND CLEAR OF ALL CLAIMS, LIENS, PLEDGES AND ENCUMBRANCES OF
ANY KIND, EXCEPT AS DISCLOSED IN WRITING TO AGENT PRIOR TO THE DATE HEREOF.
(D)
EACH BORROWER AND GUARANTOR IS SOLVENT AND WILL CONTINUE
TO BE SOLVENT AFTER THE CREATION OF THE OBLIGATIONS, THE SECURITY INTERESTS OF
AGENT AND THE OTHER TRANSACTION CONTEMPLATED HEREUNDER.
(E)
THE UNRESTRICTED SUBSIDIARIES DO NOT OWN ANY ASSETS OR
HAVE ANY LIABILITIES AND ARE NOT ENGAGED IN ANY BUSINESS OR COMMERCIAL
ACTIVITIES, EXCEPT (I) AS TO OMX TIMBER FINANCE HOLDINGS I, LLC, OMX TIMBER
FINANCE HOLDINGS II, LLC,
OMX TIMBER FINANCE INVESTMENTS I, LLC,
OMX TIMBER
FINANCE INVESTMENTS II, LLC, IN EACH CASE TO THE EXTENT RELATED TO THE
CREDIT-ENHANCED INSTALLMENT TIMBER NOTES AS DESCRIBED ON