Intellectual Property shall mean all trademarks, trade names, service marks, patents, domain names, database rights, copyrights, and any applications therefor,
technology, know-how, trade secrets, processes, computer software programs or applications, and tangible or intangible proprietary information or material. As used herein, the term Technology
Systems shall mean the electronic data processing, information, record keeping, communications, telecommunications, hardware, third-party software, networks, peripherals and computer systems, including any outsourced systems and
processes, and Intellectual Property used by either party and its Subsidiaries or by a third party.
(u) Derivative Instruments.
(i) Except as set forth in Section 3.3(u)(i) of its Disclosure Letter, all Derivative Contracts (as defined
herein) were entered into (A) only in the ordinary course of business consistent with past practice, (B) in all material respects with all applicable laws, rules, regulations and regulatory policies and (C) with counterparties
believed to be financially responsible at the time.
(ii) Each Derivative Contract constitutes the valid and
legally binding obligation of it or one of its Subsidiaries, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws, and is in full force and effect.
(iii) Neither it or its Subsidiaries, nor, to its Knowledge, any other party thereto, is in breach of any of its
material obligations under any such agreement or arrangement, except as set forth in Section 3.3(u)(iii) of its Disclosure Letter.
(iv) Section 3.3(u)(iv) of its Disclosure Letter lists all derivative instruments, including but not limited to
interest rate swaps, caps, floors, option agreements, futures, and forward contracts, whether entered into for its own account or for the account of one or more of its Subsidiaries or its or their customers (each, a Derivative
Contract).
(v) Deposits. Except as set forth in Section 3.3(v) of its Disclosure
Letter, as of the date hereof none of its deposits or deposits of any of its Subsidiaries are (i) brokered deposits or (ii) are subject to any encumbrance, legal restraint or other legal process (other than garnishments, pledges,
liens, levies, subpoenas, set off rights, escrow limitations and similar actions taken in the ordinary course of business), and no portion of such deposits represents a deposit of it or any of its Subsidiaries.
(w) Investment Securities.
(i) It and each of its Subsidiaries has good and marketable title to all securities held by it (except
securities sold under repurchase agreements or held in any fiduciary or agency capacity) free and clear of any lien, encumbrance or security interest, except to the extent that such securities are pledged in the ordinary course of business to secure
obligations of it or its Subsidiaries and except for such defects in title or liens, encumbrances or security interests that would not be material to it. Such securities are valued on the books of it and each of its Subsidiaries in accordance with
GAAP.
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