NO
LOAN PARTY HAS ANY INTEREST IN, OR TITLE TO ANY INTELLECTUAL PROPERTY EXCEPT AS
DISCLOSED IN THE PERFECTION CERTIFICATE.
EACH LOAN PARTY OWNS OR HAS RIGHTS TO
USE ALL INTELLECTUAL PROPERTY MATERIAL TO THE CONDUCT OF ITS BUSINESS AS NOW OR
HERETOFORE CONDUCTED BY IT OR PROPOSED TO BE CONDUCTED BY IT, WITHOUT ANY ACTUAL
OR CLAIMED INFRINGEMENT UPON THE RIGHTS OF THIRD PARTIES.
5.10.
SOLVENCY.
BOTH BEFORE AND AFTER GIVING EFFECT TO EACH TERM LOAN, THE
TRANSACTIONS CONTEMPLATED HEREIN, AND THE PAYMENT AND ACCRUAL OF ALL TRANSACTION
COSTS IN CONNECTION WITH THE FOREGOING, EACH LOAN PARTY IS AND WILL BE SOLVENT.
AS USED HEREIN, "SOLVENT" MEANS, WITH RESPECT TO A
14
LOAN PARTY ON A PARTICULAR DATE, THAT ON SUCH DATE (A) THE FAIR VALUE OF THE
PROPERTY OF SUCH LOAN PARTY IS GREATER THAN THE TOTAL AMOUNT OF LIABILITIES,
INCLUDING CONTINGENT LIABILITIES, OF SUCH LOAN PARTY; (B) THE PRESENT FAIR
SALABLE VALUE OF THE ASSETS OF SUCH LOAN PARTY IS NOT LESS THAN THE AMOUNT THAT
WILL BE REQUIRED TO PAY THE PROBABLE LIABILITY OF SUCH LOAN PARTY ON ITS DEBTS
AS THEY BECOME ABSOLUTE AND MATURED; (C) SUCH LOAN PARTY DOES NOT INTEND TO, AND
DOES NOT BELIEVE THAT IT WILL, INCUR DEBTS OR LIABILITIES BEYOND SUCH LOAN
PARTY'S ABILITY TO PAY AS SUCH DEBTS AND LIABILITIES MATURE; (D) SUCH LOAN PARTY
IS NOT ENGAGED IN A BUSINESS OR TRANSACTION, AND IS NOT ABOUT TO ENGAGE IN A
BUSINESS OR TRANSACTION, FOR WHICH SUCH LOAN PARTY'S PROPERTY WOULD CONSTITUTE
AN UNREASONABLY SMALL CAPITAL; AND (E) SUCH LOAN PARTY IS NOT "INSOLVENT" WITHIN
THE MEANING OF SECTION 101(32) OF THE UNITED STATES BANKRUPTCY CODE (11 U.S.C. §
101, ET. SEQ), AS AMENDED FROM TIME TO TIME.
THE AMOUNT OF CONTINGENT
LIABILITIES (SUCH AS LITIGATION, GUARANTIES AND PENSION PLAN LIABILITIES) AT ANY
TIME SHALL BE COMPUTED AS THE AMOUNT THAT, IN LIGHT OF ALL THE FACTS AND
CIRCUMSTANCES EXISTING AT THE TIME, REPRESENTS THE AMOUNT THAT CAN BE REASONABLY
BE EXPECTED TO BECOME AN ACTUAL OR MATURED LIABILITY.
5.11.
TAXES; PENSION.
ALL TAX RETURNS, REPORTS AND STATEMENTS, INCLUDING
INFORMATION RETURNS, REQUIRED BY ANY GOVERNMENTAL AUTHORITY TO BE FILED BY EACH
LOAN PARTY AND ITS SUBSIDIARIES HAVE BEEN FILED WITH THE APPROPRIATE
GOVERNMENTAL AUTHORITY AND ALL TAXES, LEVIES, ASSESSMENTS AND SIMILAR CHARGES
HAVE BEEN PAID PRIOR TO THE DATE ON WHICH ANY FINE, PENALTY, INTEREST OR LATE
CHARGE MAY BE ADDED THERETO FOR NONPAYMENT THEREOF (OR ANY SUCH FINE, PENALTY,
INTEREST, LATE CHARGE OR LOSS HAS BEEN PAID), EXCLUDING TAXES, LEVIES,
ASSESSMENTS AND SIMILAR CHARGES OR OTHER AMOUNTS WHICH ARE THE SUBJECT OF A
PERMITTED CONTEST.
PROPER AND ACCURATE AMOUNTS HAVE BEEN WITHHELD BY EACH LOAN
PARTY FROM ITS RESPECTIVE EMPLOYEES FOR ALL PERIODS IN COMPLIANCE WITH
APPLICABLE LAWS AND SUCH WITHHOLDINGS HAVE BEEN TIMELY PAID TO THE RESPECTIVE
GOVERNMENTAL AUTHORITIES.
EACH LOAN PARTY HAS PAID ALL AMOUNTS NECESSARY TO
FUND ALL PRESENT PENSION, PROFIT SHARING AND DEFERRED COMPENSATION PLANS IN
ACCORDANCE WITH THEIR TERMS, AND NO LOAN