SECRETS,
INVENTIONS, PRODUCT MANUFACTURING INSTRUCTIONS, TECHNOLOGY, RESEARCH AND
DEVELOPMENT, KNOW-HOW AND ALL OTHER INTELLECTUAL PROPERTY THAT ARE NECESSARY FOR
THE OPERATION OF THE BORROWER'S AND ITS SUBSIDIARIES' BUSINESSES AS BEING
OPERATED ON THE RESTATEMENT EFFECTIVE DATE AFTER GIVING EFFECT TO THE RELATED
TRANSACTIONS.
EACH PATENT, TRADEMARK, SERVICE MARK, TRADE NAME, COPYRIGHT AND
LICENSE LISTED ON SCHEDULE 3.17 IS IN FULL FORCE AND EFFECT EXCEPT TO THE EXTENT
THE FAILURE TO BE IN EFFECT WILL NOT AND WOULD NOT REASONABLY BE EXPECTED TO
HAVE, EITHER INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
EXCEPT AS SET FORTH IN SCHEDULE 3.17, TO THE BEST KNOWLEDGE OF THE BORROWER, AS
OF THE RESTATEMENT EFFECTIVE DATE (A) NONE OF THE PRESENT OR CONTEMPLATED
PRODUCTS OR OPERATIONS OF THE BORROWER OR ITS SUBSIDIARIES INFRINGES ANY PATENT,
TRADEMARK, SERVICE MARK, TRADE NAME, COPYRIGHT, LICENSE OF INTELLECTUAL PROPERTY
OR OTHER RIGHT OWNED BY ANY OTHER PERSON, AND (B) THERE IS NO PENDING OR
THREATENED CLAIM OR LITIGATION AGAINST OR AFFECTING THE BORROWER OR ANY OF ITS
SUBSIDIARIES CONTESTING THE RIGHT OF ANY OF THEM TO MANUFACTURE, PROCESS, SELL
OR USE ANY SUCH PRODUCT OR TO ENGAGE IN ANY SUCH OPERATION EXCEPT FOR CLAIMS
AND/OR LITIGATION WHICH WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
NONE OF THE TRADEMARK REGISTRATIONS SET FORTH ON SCHEDULE 3.17
IS AN "INTENT-TO-USE" REGISTRATION.
3.18
SUBSIDIARIES.
THE BORROWER HAS NO SUBSIDIARIES
OR EQUITY INVESTMENTS IN ANY OTHER CORPORATION OR ENTITY OTHER THAN THOSE
SPECIFICALLY DISCLOSED IN SCHEDULE 3.2.
3.19
BROKERS' FEES; TRANSACTION FEES.
NEITHER THE
BORROWER NOR ANY OF ITS SUBSIDIARIES HAS ANY OBLIGATION TO ANY PERSON IN RESPECT
OF ANY FINDER'S, BROKER'S OR INVESTMENT BANKER'S FEE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY.
3.20
INSURANCE.
THE BORROWER AND EACH OF ITS
SUBSIDIARIES AND ITS PROPERTY ARE INSURED WITH FINANCIALLY SOUND AND REPUTABLE
INSURANCE COMPANIES WHICH ARE NOT AFFILIATES OF THE BORROWER, IN SUCH AMOUNTS,
WITH SUCH DEDUCTIBLES AND COVERING SUCH RISKS AS ARE CUSTOMARILY CARRIED BY
COMPANIES ENGAGED IN SIMILAR BUSINESSES AND OWNING SIMILAR PROPERTY IN
LOCALITIES WHERE THE BORROWER OR ITS SUBSIDIARIES OPERATE.
A TRUE AND COMPLETE
LISTING OF SUCH INSURANCE, INCLUDING ISSUERS, COVERAGES AND DEDUCTIBLES, HAS
BEEN PROVIDED TO THE AGENT.
25
3.21
FULL DISCLOSURE.
NONE OF THE REPRESENTATIONS OR
WARRANTIES MADE BY THE BORROWER OR ANY OF ITS SUBSIDIARIES IN THE LOAN DOCUMENTS
AS OF THE DATE SUCH REPRESENTATIONS AND WARRANTIES ARE MADE OR DEEMED MADE, AND
NONE OF THE STATEMENTS CONTAINED IN EACH EXHIBIT, REPORT, STATEMENT OR
CERTIFICATE FURNISHED BY OR ON BEHALF OF THE BORROWER OR ANY OF ITS SUBSIDIARIES
IN CONNECTION WITH THE LOAN DOCUMENTS (INCLUDING THE OFFERING AND DISCLOSURE
MATERIALS, IF ANY, DELIVERED BY OR ON BEHALF OF THE BORROWER TO THE LENDERS
PRIOR TO THE RESTATEMENT EFFECTIVE DATE), CONTAINS ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMITS ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY ARE MADE, NOT MISLEADING AS OF THE