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.
13
(C)
BORROWER HAS IN FULL FORCE AND EFFECT FIRE AND CASUALTY INSURANCE
POLICIES, AND INSURANCE AGAINST OTHER HAZARDS, RISKS AND LIABILITIES TO PERSONS
AND PROPERTY TO THE EXTENT AND IN THE MANNER CUSTOMARY FOR COMPANIES IN SIMILAR
BUSINESSES SIMILARLY SITUATED.
BORROWER HAS MADE AVAILABLE TO LENDER A TRUE,
COMPLETE AND CORRECT LIST, AND A SUMMARY DESCRIPTION OF THE COVERAGE PROVIDED
THEREBY, OF ALL LIABILITY INSURANCE POLICIES MAINTAINED BY BORROWER ON ITS
ASSETS OR IN RELATION TO ITS BUSINESS.
ALL OF SUCH POLICIES ARE IN FULL FORCE
AND EFFECT.
ALL PREMIUMS DUE ON SUCH INSURANCE POLICIES ON OR PRIOR TO THE DATE
HEREOF HAVE BEEN PAID.
AS OF THE DATE HEREOF, THERE ARE NO CLAIMS WITH RESPECT
TO BORROWER, NOR ITS RESPECTIVE ASSETS, PENDING UNDER ANY CURRENT OR PRIOR
INSURANCE POLICY.
4.13.
Compliance with Laws; Legal Requirements.
(A)
EXCEPT AS SET FORTH ON SCHEDULE 4.13, BORROWER HAS COMPLIED, AND
IS IN COMPLIANCE, IN ALL MATERIAL RESPECTS, WITH ALL FOREIGN, FEDERAL, STATE OR
LOCAL LAWS (INCLUDING COMMON