ANY OTHER PERSON ANCILLARY TO THE TRANSACTIONS CONTEMPLATED HEREBY.
5.22
UNENCUMBERED ASSETS AND
TRAPPED EQUITY PROPERTIES.
AS OF THE AGREEMENT EXECUTION DATE, SCHEDULE 7 IS A
CORRECT AND COMPLETE LIST OF ALL UNENCUMBERED ASSETS AND TRAPPED EQUITY
PROPERTIES.
EACH OF THE ASSETS INCLUDED BY THE BORROWER IN CALCULATIONS OF THE
AGGREGATE POOL VALUE SATISFIES ALL OF THE REQUIREMENTS CONTAINED IN THIS
AGREEMENT FOR THE SAME TO BE INCLUDED THEREIN.
5.23
NO BANKRUPTCY FILING.
NEITHER BORROWER NOR ANY OF ITS SUBSIDIARIES IS CONTEMPLATING EITHER THE FILING
OF A PETITION BY IT UNDER ANY STATE OR FEDERAL BANKRUPTCY OR INSOLVENCY LAWS OR
THE LIQUIDATION OF ITS ASSETS OR PROPERTY, AND BORROWER HAS NO KNOWLEDGE OF ANY
PERSON CONTEMPLATING THE FILING OF ANY SUCH PETITION AGAINST ANY OF SUCH
PERSONS.
41
5.24
NO FRAUDULENT INTENT.
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS NOR THE PERFORMANCE OF ANY ACTIONS REQUIRED HEREUNDER OR THEREUNDER IS
BEING UNDERTAKEN BY BORROWER OR THE SUBSIDIARY GUARANTORS WITH OR AS A RESULT OF
ANY ACTUAL INTENT BY ANY OF SUCH PERSONS TO HINDER, DELAY OR DEFRAUD ANY ENTITY
TO WHICH ANY OF SUCH PERSONS IS NOW OR WILL HEREAFTER BECOME INDEBTED.
5.25
TRANSACTION IN BEST
INTERESTS OF BORROWER AND SUBSIDIARY GUARANTORS; CONSIDERATION.
THE TRANSACTION
EVIDENCED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS IS IN THE BEST
INTERESTS OF BORROWER AND THE SUBSIDIARY GUARANTORS AND THEIR RESPECTIVE
CREDITORS.
THE DIRECT AND INDIRECT BENEFITS TO INURE TO BORROWER AND THE
SUBSIDIARY GUARANTORS PURSUANT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE SUBSTANTIALLY MORE THAN "REASONABLY EQUIVALENT VALUE" (AS SUCH TERM
IS USED IN §548 OF THE BANKRUPTCY CODE) AND "VALUABLE CONSIDERATION," "FAIR
VALUE," AND "FAIR CONSIDERATION" (AS SUCH TERMS ARE USED IN ANY APPLICABLE STATE
FRAUDULENT CONVEYANCE LAW), IN EXCHANGE FOR THE BENEFITS TO BE PROVIDED BY
BORROWER AND THE SUBSIDIARY GUARANTORS PURSUANT TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, AND BUT FOR THE WILLINGNESS OF EACH SUBSIDIARY GUARANTOR TO
GUARANTY THE OBLIGATIONS, BORROWER WOULD BE UNABLE TO OBTAIN THE FINANCING
CONTEMPLATED HEREUNDER WHICH FINANCING WILL ENABLE BORROWER AND ITS SUBSIDIARIES
TO HAVE AVAILABLE FINANCING TO CONDUCT AND EXPAND THEIR BUSINESS.
BORROWER AND
ITS SUBSIDIARIES CONSTITUTE A SINGLE INTEGRATED FINANCIAL ENTERPRISE AND
RECEIVES A BENEFIT FROM THE AVAILABILITY OF CREDIT UNDER THIS AGREEMENT.
5.26
SUBORDINATION.
BORROWER
IS NOT A PARTY TO OR BOUND BY ANY AGREEMENT, INSTRUMENT OR INDENTURE THAT MAY
REQUIRE THE SUBORDINATION IN RIGHT OR TIME OF PAYMENT OF ANY OF THE OBLIGATIONS
TO ANY OTHER INDEBTEDNESS OR OBLIGATION OF ANY SUCH PERSONS.
5.27
Tax Shelter
Representation.
Borrower does not intend to treat the Loans, and/or related
transactions as being a "reportable transaction" (within the meaning of United
States Treasury Regulation Section 1.6011-4).
In the event Borrower determines
to take any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof.
If Borrower so notifies the Administrative Agent,
Borrower acknowledges that one or more of the Lenders may treat its Loans as
part of