METHODS,
PRACTICES OR POLICIES FOLLOWED BY BORROWER, OR ANY CHANGE IN DEPRECIATION OR
AMORTIZATION POLICIES OR RATES THERETOFORE ADOPTED UNLESS REQUIRED BY GAAP; AND
(F)
BORROWER IS NOT IN DEFAULT IN ANY RESPECT UNDER ANY CONTRACT
EXCEPT WHERE ANY SUCH DEFAULT WOULD NOT REASONABLY BE EXPECTED TO, INDIVIDUALLY
OR IN THE AGGREGATE, RESULT IN A MATERIAL ADVERSE EFFECT.
13
4.10.
LITIGATION.
EXCEPT AS SET FORTH IN SCHEDULE 4.10 OR AS DESCRIBED IN
FILINGS WITH THE SEC, THERE IS NO CIVIL ACTION, SUIT, CLAIM, HEARING,
INVESTIGATION OR PROCEEDING PENDING (FOR WHICH PROPER SERVICE HAS BEEN MADE) OR,
TO THE KNOWLEDGE OF BORROWER, THREATENED AGAINST BORROWER, OR ANY PROPERTY OR
ASSETS OWNED OR POSSESSED BY BORROWER, OR, TO THE EXTENT RELATING IN ANY MANNER
TO BORROWER OR THE ABILITY TO CONSUMMATE THE TRANSACTIONS HEREUNDER, ANY OF
BORROWER EXECUTIVES THAT IS REASONABLY LIKELY, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, TO (A) ADVERSELY AFFECT THE VALIDITY OF THIS AGREEMENT, THE NOTE OR
THE WARRANTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR (B) HAVE A
MATERIAL ADVERSE EFFECT.
4.11.
INTELLECTUAL PROPERTY.
(A)
BORROWER HAS GOOD TITLE AND/OR THE RIGHT TO USE ALL INTELLECTUAL
PROPERTY (INCLUDING ALL SUCH PROPERTY IN WHICH BORROWER HAS AN INTEREST AS
LICENSEE) NECESSARY FOR THE CONDUCT OF ITS BUSINESS (THE "INTELLECTUAL
PROPERTY");
(B)
AS OF THE DATE HEREOF BORROWER HAS NOT RECEIVED ANY NOTICE OF ANY
JUDICIAL, ADMINISTRATIVE OR ARBITRATION PROCEEDING INSTITUTED AGAINST ANY IT, OR
OF ANY CLAIM OR THREATENED CLAIM BY ANY PERSON AGAINST IT ALLEGING THAT THE
CONDUCT OF ITS BUSINESS INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER
PERSON; AND
(C)
TO THE BEST OF BORROWER'S KNOWLEDGE, ITS USE OR ENJOYMENT DOES
NOT, OR WOULD NOTE, VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY,
AND NO THIRD PARTY IS INFRINGING UPON THE INTELLECTUAL PROPERTY;
except, in each case under clause (a), (b) and (c) of this Section 4.11, as are
not reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect.
4.12.
TITLE TO ASSETS, PROPERTIES AND RIGHTS.
(A)
EXCEPT FOR PERMITTED LIENS, BORROWER HAS GOOD AND MARKETABLE TITLE
TO ALL OF ITS RESPECTIVE PROPERTIES, INTERESTS IN PROPERTIES AND ASSETS, REAL,
PERSONAL AND MIXED, TANGIBLE OR INTANGIBLE, THAT IT OWNS OR PURPORTS TO OWN THAT
IS USED OR USEFUL IN THE CONDUCT OF ITS BUSINESS, FREE AND CLEAR OF ANY AND ALL
ENCUMBRANCES, EXCEPT FOR:
(I) LIENS, IF ANY, FOR CURRENT TAXES AND ASSESSMENTS
NOT YET DUE, AND (II) MINOR LIENS AND ENCUMBRANCES, IN EACH CASE, WHICH ARE NOT
REASONABLY LIKELY, INDIVIDUALLY OR IN THE AGGREGATE, TO HAVE A MATERIAL ADVERSE
EFFECT.
(B)
WITH RESPECT TO THE PROPERTY AND ASSETS LEASED OR LICENSED BY
BORROWER OR ITS SUBSIDIARIES, BORROWER OR SUCH SUBSIDIARY, AS APPLICABLE, IS IN
COMPLIANCE WITH SUCH LEASES OR LICENSES AND HOLDS VALID LEASEHOLD OR OTHER
INTERESTS FREE AND CLEAR OF ANY ENCUMBRANCES, EXCEPT AS ARE NOT REASONABLY
LIKELY, INDIVIDUALLY OR IN THE AGGREGATE, TO HAVE A MATERIAL ADVERSE EFFECT.
(C)
BORROWER HAS IN FULL FORCE AND EFFECT FIRE