THE SALE OF
THE COMPANY OR RELATED TRANSACTIONS
18
CONTEMPLATED BY THIS AGREEMENT.
SELLER OR A SUBSIDIARY OF SELLER, AS
APPLICABLE, SHALL BE SOLELY LIABLE FOR ALL FEES, COMMISSIONS AND/OR FINDER'S
FEES PAYABLE OR OWING (WHETHER DEMANDED OR NOT) TO SALEM PARTNERS LLC EXCEPT FOR
MATTERS WHERE BUYER OR ITS AFFILIATES HAVE SEPARATELY ENGAGED SALEM PARTNERS
LLC.
4.18
INTELLECTUAL PROPERTY.
THE COMPANY OWNS EXCLUSIVELY AND SOLELY, OR
HAS THE VALID RIGHT AND TITLE TO USE, AND HAS GOOD AND MARKETABLE TITLE TO ALL
OF THE FILM RIGHTS, FREE AND CLEAR OF ALL LIENS (EXCEPT PERMITTED LIENS).
TO
SELLER'S KNOWLEDGE, USE OF THE FILM RIGHTS HAS NOT VIOLATED OR INFRINGED UPON OR
INTERFERED WITH, AND IS NOT CURRENTLY VIOLATING OR INFRINGING UPON OR
INTERFERING WITH, THIRD PARTY-OWNED INTELLECTUAL PROPERTY.
TO SELLER'S
KNOWLEDGE, NO PERSON IS VIOLATING OR INFRINGING UPON OR INTERFERING WITH, OR HAS
VIOLATED OR INFRINGED UPON OR INTERFERED WITH AT ANY TIME, ANY FILM RIGHTS.
NO
INTELLECTUAL PROPERTY OTHER THAN THE FILM RIGHTS IS REQUIRED BY BUYER TO EXPLOIT
THE FILMS AND MAKE THE FILMS AVAILABLE AS PROVIDED IN SCHEDULE 4.15(A), EXCEPT
TO THE EXTENT LIMITED BY THE BAGBRIDGE RIGHTS.
4.19
OWNERSHIP BY THE COMPANY; NO INCONSISTENT ACTIONS.
EXCEPT (A) WITH
RESPECT TO TRANSFERS DIRECTLY OR INDIRECTLY TO THE COMPANY, (B) PURSUANT TO THE
BAGBRIDGE AGREEMENT, (C) PURSUANT TO AGREEMENTS IN WHICH THE SERVICING AGENT WAS
INVOLVED IN NEGOTIATION OR DRAFTING OF SUCH AGREEMENT OR (D) AS SET FORTH ON
SCHEDULE 4.19,(1) NEITHER SELLER NOR THE COMPANY HAS TAKEN ANY ACTION, THAT HAS
RESULTED, OR MAY RESULT IN (I) THE DISPOSITION OF OR ENCUMBRANCE ON ANY ASSET
ACQUIRED PURSUANT TO THE 2001 PURCHASE AGREEMENT OR (II) THE EXECUTION OR
TERMINATION OF ANY CONTRACT OR ANY AMENDMENT THERETO OR WAIVER OF ANY PROVISION
THEREOF.
THE COMPANY, AND NOT SELLER OR ITS AFFILIATES (OTHER THAN THE
COMPANY), HOLDS THE COMPANY ASSETS.
(1)
This would be where the "video on demand" rights, scope and the
Warner Bros. agreement would be listed.
4.20
BAGBRIDGE AGREEMENT.
SELLERS HAVE PROVIDED BAGBRIDGE LIMITED WITH
COPIES OF ALL LICENSE AGREEMENTS AND EXTRACTS OF EXCLUDED LICENSE AGREEMENTS AND
EXCLUDED PREEXISTING HEI LICENSE AGREEMENTS (EACH AS DEFINED IN THE BAGBRIDGE
AGREEMENT) IN THE POSSESSION OF SELLER OR ITS AFFILIATES.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.1
ORGANIZATION AND QUALIFICATION.
BUYER IS DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER ITS JURISDICTION OF FORMATION.
5.2
AUTHORIZATION AND VALIDITY OF AGREEMENT.
BUYER HAS ALL REQUISITE
CORPORATE POWER AND AUTHORITY TO EXECUTE THIS AGREEMENT AND TO CARRY OUT AND
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, SUBJECT TO THE TERMS OF THIS
AGREEMENT, AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
THE
EXECUTION, DELIVERY AND PERFORMANCE BY BUYER OF THIS AGREEMENT, AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, HAVE BEEN DULY AND VALIDLY
AUTHORIZED BY ALL NECESSARY ACTION OF BUYER AND NO OTHER CORPORATE ACTION ON THE
PART OF
19
BUYER IS NECESSARY FOR THE AUTHORIZATION, EXECUTION, DELIVERY OR PERFORMANCE