ABOVE.
4.9
TITLE TO PROPERTIES AND ASSETS; LIENS, ETC. EXCEPT AS SET FORTH IN
THE SEC REPORTS, LIENS GRANTED IN FAVOR OF PURCHASER AND THE LIENS SET FORTH ON
SCHEDULE 4.9 HERETO, THE COMPANY HAS GOOD AND MARKETABLE TITLE TO ITS PROPERTIES
AND ASSETS, AND GOOD TITLE TO ITS LEASEHOLD ESTATES, IN EACH CASE SUBJECT TO NO
MORTGAGE, PLEDGE, LIEN, LEASE, ENCUMBRANCE OR CHARGE, OTHER THAN (A) THOSE
RESULTING FROM TAXES WHICH HAVE NOT YET BECOME DELINQUENT, (B) MINOR LIENS AND
ENCUMBRANCES WHICH DO NOT MATERIALLY DETRACT FROM THE VALUE OF THE PROPERTY
SUBJECT THERETO OR MATERIALLY IMPAIR THE OPERATIONS OF THE COMPANY, AND (C)
THOSE THAT HAVE OTHERWISE ARISEN IN THE ORDINARY COURSE OF BUSINESS.
ALL
FACILITIES, MACHINERY, EQUIPMENT, FIXTURES, VEHICLES AND OTHER PROPERTIES OWNED,
LEASED OR USED BY THE COMPANY ARE IN GOOD OPERATING CONDITION AND REPAIR AND ARE
REASONABLY FIT AND USABLE FOR THE PURPOSES FOR WHICH THEY ARE BEING USED.
THE
COMPANY IS IN COMPLIANCE WITH ALL MATERIAL TERMS OF EACH LEASE TO WHICH IT IS A
PARTY OR IS OTHERWISE BOUND.
4.10
INTELLECTUAL PROPERTY.
(A)
THE COMPANY OWNS OR POSSESSES SUFFICIENT LEGAL RIGHTS TO ALL
PATENTS, TRADEMARKS, SERVICE MARKS, TRADE NAMES, COPYRIGHTS, TRADE SECRETS,
LICENSES, INFORMATION AND OTHER PROPRIETARY RIGHTS AND PROCESSES NECESSARY FOR
ITS BUSINESS AS NOW CONDUCTED AND TO THE COMPANY'S KNOWLEDGE AS PRESENTLY
PROPOSED TO BE CONDUCTED (THE "INTELLECTUAL PROPERTY"), WITHOUT ANY KNOWN
INFRINGEMENT OF THE RIGHTS OF OTHERS.
EXCEPT AS SET FORTH IN THE SEC REPORTS,
THERE ARE NO OUTSTANDING OPTIONS, LICENSES OR AGREEMENTS OF ANY KIND RELATING TO
THE FOREGOING PROPRIETARY RIGHTS, NOR IS THE COMPANY BOUND BY OR A PARTY TO ANY
OPTIONS, LICENSES OR AGREEMENTS OF ANY KIND WITH RESPECT TO THE PATENTS,
TRADEMARKS, SERVICE MARKS, TRADE NAMES, COPYRIGHTS, TRADE SECRETS, LICENSES,
INFORMATION AND OTHER PROPRIETARY RIGHTS AND PROCESSES OF ANY OTHER PERSON OR
ENTITY OTHER THAN SUCH LICENSES OR AGREEMENTS ARISING FROM THE PURCHASE OF "OFF
THE SHELF" OR STANDARD PRODUCTS.
(B)
THE COMPANY HAS NOT RECEIVED ANY COMMUNICATIONS ALLEGING THAT THE
COMPANY HAS VIOLATED ANY OF THE PATENTS, TRADEMARKS, SERVICE MARKS, TRADE NAMES,
COPYRIGHTS OR TRADE SECRETS OR OTHER PROPRIETARY RIGHTS OF ANY OTHER PERSON OR
ENTITY, NOR IS THE COMPANY AWARE OF ANY BASIS THEREFOR.
(C)
THE COMPANY DOES NOT BELIEVE IT IS OR WILL BE NECESSARY TO UTILIZE
ANY INVENTIONS, TRADE SECRETS OR PROPRIETARY INFORMATION OF ANY OF ITS EMPLOYEES
MADE PRIOR TO THEIR EMPLOYMENT BY THE COMPANY, EXCEPT FOR INVENTIONS, TRADE
SECRETS OR PROPRIETARY INFORMATION THAT HAVE BEEN RIGHTFULLY ASSIGNED TO THE
COMPANY.
4.11
COMPLIANCE WITH OTHER INSTRUMENTS.
EXCEPT AS SET FORTH IN THE SEC
REPORTS, THE COMPANY IS NOT IN VIOLATION OR DEFAULT OF ANY TERM OF ITS CHARTER
OR BYLAWS, OR OF ANY PROVISION OF ANY MORTGAGE, INDENTURE, CONTRACT, AGREEMENT,
INSTRUMENT OR CONTRACT TO WHICH IT IS PARTY OR BY WHICH IT IS BOUND OR OF ANY
JUDGMENT, DECREE, ORDER OR WRIT.
THE EXECUTION,
7
DELIVERY AND PERFORMANCE OF AND COMPLIANCE WITH THIS AGREEMENT AND THE RELATED
AGREEMENTS, AND THE