RESPECT OF THE COLLATERAL PURSUANT TO THIS AGREEMENT, EXCEPT AS
MAY BE REQUIRED IN CONNECTION WITH THE DISPOSITION OF ANY PORTION OF THE
SECURITY COLLATERAL BY LAWS AFFECTING THE OFFERING AND SALE OF SECURITIES
GENERALLY.
(K)
AS TO ITSELF AND ITS INTELLECTUAL PROPERTY COLLATERAL:
(I)
EXCEPT AS COULD NOT BE REASONABLY EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT (X) ON THE BUSINESS, ASSETS, PROPERTIES, FINANCIAL CONDITION OR
RESULTS OF OPERATIONS OF THE COMPANY AND ITS RESTRICTED SUBSIDIARIES, TAKEN AS A
WHOLE, (Y) A MATERIAL ADVERSE EFFECT ON THE ABILITY OF THE COMPANY AND THE
GUARANTORS (TAKEN AS A WHOLE) TO PERFORM THEIR OBLIGATIONS UNDER ANY NOTE
DOCUMENT OR (C) A MATERIAL ADVERSE EFFECT ON THE RIGHTS AND REMEDIES OF THE
HOLDERS OF THE NOTES UNDER ANY NOTE DOCUMENT (EACH, A "MATERIAL ADVERSE
EFFECT"), THE OPERATION OF SUCH GRANTOR'S BUSINESS AS CURRENTLY CONDUCTED AND
THE USE OF ANY OF THE SUBSIDIARIES OF ANY MATERIAL INTELLECTUAL PROPERTY
COLLATERAL (AS DEFINED BELOW) IN CONNECTION THEREWITH DOES NOT INFRINGE,
MISAPPROPRIATE, DILUTE, MISUSE OR OTHERWISE VIOLATE THE INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY.
(II)
SUCH GRANTOR IS THE EXCLUSIVE OWNER OR JOINT OWNER OF ALL RIGHT,
TITLE AND INTEREST IN AND TO THE MATERIAL INTELLECTUAL PROPERTY COLLATERAL, OR
IS ENTITLED TO USE ALL MATERIAL INTELLECTUAL PROPERTY COLLATERAL SUBJECT ONLY TO
THE TERMS OF THE RELATED IP AGREEMENTS.
8
(III)
THE INTELLECTUAL PROPERTY COLLATERAL SET FORTH ON SCHEDULE IV
HERETO INCLUDES ALL PATENTS, PATENT APPLICATIONS, DOMAIN NAMES, TRADEMARK
REGISTRATIONS AND APPLICATIONS, COPYRIGHT REGISTRATIONS AND APPLICATIONS THAT
ARE OWNED BY AND MATERIAL TO THE BUSINESS OF SUCH GRANTOR, IN EACH CASE WHICH
ARE REASONABLY NECESSARY TO THE OPERATION OF SUCH GRANTOR'S RESPECTIVE BUSINESS.
(IV)
THE MATERIAL INTELLECTUAL PROPERTY COLLATERAL OWNED BY SUCH
GRANTOR IS SUBSISTING AND HAS NOT BEEN ADJUDGED INVALID OR UNENFORCEABLE IN
WHOLE OR PART, AND IS VALID AND ENFORCEABLE.
(V)
EXCEPT AS SET FORTH ON SCHEDULE IV HERETO, SUCH GRANTOR HAS NOT
GRANTED ANY MATERIAL LICENSE, RELEASE, COVENANT NOT TO SUE, NON-ASSERTION
ASSURANCE, OR OTHER MATERIAL RIGHT TO ANY PERSON WITH RESPECT TO ANY PART OF THE
MATERIAL INTELLECTUAL PROPERTY COLLATERAL (OTHER THAN (A) LICENSES GRANTED TO
SUCH GRANTOR'S CUSTOMERS IN THE ORDINARY COURSE OF BUSINESS), THE EFFECT OF
WHICH WOULD CREATE A MATERIAL IMPAIRMENT OF SUCH GRANTOR'S USE OF SUCH MATERIAL
INTELLECTUAL PROPERTY COLLATERAL AS INTENDED IN THE OPERATION OF ITS RESPECTIVE
BUSINESS. THE CONSUMMATION OF THE TRANSACTIONS WILL NOT RESULT IN THE
TERMINATION OR IMPAIRMENT OF ANY OF THE MATERIAL INTELLECTUAL PROPERTY
COLLATERAL.
(VI)
WITH RESPECT TO EACH MATERIAL IP AGREEMENT, EXCEPT AS COULD NOT BE
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT:
(A) SUCH IP AGREEMENT IS
VALID AND BINDING AND IN FULL FORCE AND EFFECT WITH RESPECT TO EACH GRANTOR, AND
TO THE KNOWLEDGE OF ANY SPECIFIED OFFICER OF SUCH GRANTOR, WITH RESPECT TO ANY
OTHER PARTY THERETO, AND REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE RESPECTIVE
PARTIES THERETO WITH RESPECT TO THE SUBJECT MATTER THEREOF; (B) SUCH IP
AGREEMENT WILL NOT CEASE TO BE VALID AND BINDING