AT ANY TIME OR TIMES THEREAFTER, MAKE SUCH PAYMENT, OR ANY
PART THEREOF, OR OBTAIN SUCH DISCHARGE AND TAKE ANY OTHER ACTION WITH RESPECT
THERETO WHICH LENDER DEEMS ADVISABLE; PROVIDED, THAT LENDER SHALL NOT BE
ENTITLED TO TAKE SUCH STEPS WITH RESPECT TO COLLATERAL CONSISTING OF THE
UNDERLYING COLLATERAL FOR THE SBA 7(A) LOANS GRANTED TO BORROWER TO SECURE THE
OBLIGATIONS OF THE TERM LOAN DEBTORS.
ALL SUMS SO PAID BY LENDER AND ANY
EXPENSES, INCLUDING REASONABLE
44
ATTORNEYS' FEES, COURT COSTS, EXPENSES AND OTHER REASONABLE CHARGES RELATING
THERETO, SHALL BE PAYABLE, UPON DEMAND, BY BORROWER TO LENDER AND SHALL BE
ADDITIONAL OBLIGATIONS HEREUNDER SECURED BY THE COLLATERAL.
(B)
BORROWER MAY IN GOOD FAITH CONTEST, BY
PROPER LEGAL ACTIONS OR PROCEEDINGS, THE VALIDITY OR AMOUNT OF ANY CHARGES OR
CLAIMS, AND PROVIDED THAT BORROWER GIVES LENDER ADVANCE NOTICE OF ITS INTENTION
TO CONTEST THE VALIDITY OR AMOUNT OF ANY SUCH CHARGE OR CLAIM, LENDER WILL
FOREBEAR FROM MAKING ANY PAYMENT OR OTHERWISE OBTAINING THE DISCHARGE OF SUCH
CHARGE OR CLAIM IF AT THE TIME OF THE COMMENCEMENT OF ANY SUCH ACTION OR
PROCEEDING, AND DURING THE PENDENCY THEREOF (I) NO EVENT OF DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING, (II) RESERVES WITH RESPECT THERETO ARE MAINTAINED ON
THE BOOKS OF BORROWER IN AN AMOUNT REASONABLY ACCEPTABLE TO LENDER, (III) SUCH
CONTEST OPERATES TO SUSPEND COLLECTION OF THE CONTESTED CHARGES OR CLAIMS AND IS
MAINTAINED AND PROSECUTED CONTINUOUSLY WITH DILIGENCE, (IV) NONE OF THE
COLLATERAL WILL BE SUBJECT TO FORFEITURE OR LOSS OF ANY LIEN IN FAVOR OF LENDER
BY REASON OF THE INSTITUTION OR PROSECUTION OF SUCH CONTEST, (V) NO LIEN THAT
MAY REASONABLY BE EXPECTED TO PRIME THE LIENS OF LENDER SHALL EXIST FOR SUCH
CHARGES OR CLAIMS DURING SUCH ACTION OR PROCEEDING, (VI) BORROWER SHALL PROMPTLY
PAY OR DISCHARGE SUCH CONTESTED CHARGES AND ALL ADDITIONAL CHARGES, INTERESTS,
PENALTIES AND EXPENSES, IF ANY, AND SHALL DELIVER TO LENDER EVIDENCE REASONABLY
ACCEPTABLE TO LENDER OF SUCH COMPLIANCE, PAYMENT OR DISCHARGE, IF SUCH CONTEST
IS TERMINATED OR DISCONTINUED ADVERSELY TO BORROWER, AND (VII) LENDER HAS NOT
ADVISED BORROWER IN WRITING THAT LENDER REASONABLY BELIEVES THAT NON-PAYMENT OR
NON-DISCHARGE THEREOF COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE CHANGE.
5.14
COMMUNICATION WITH ACCOUNTANTS.
BORROWER SHALL
COOPERATE WITH LENDER TO PERMIT REASONABLE ACCESS TO ACCOUNTANT AND AUTHORIZES
ACCOUNTANT TO DISCLOSE TO LENDER ANY AND ALL FINANCIAL STATEMENTS AND OTHER
SUPPORTING FINANCIAL DATA, INCLUDING MATTERS RELATING TO THE CONDUCT OF THE
ANNUAL AUDIT AND COPIES OF ANY MANAGEMENT LETTER WITH RESPECT TO BORROWER'S
BUSINESS, PENDING LITIGATION, FINANCIAL CONDITION AND OTHER AFFAIRS.
ON OR
BEFORE THE CLOSING DATE, BORROWER SHALL DELIVER TO LENDER A LETTER ADDRESSED TO
SUCH ACCOUNTANTS IN THE FORM OF EXHIBIT E.
5.15
NOTES RECEIVABLE DOCUMENTS.
PURSUANT TO THE
MULTI-PARTY AGREEMENT, BORROWER SHALL DELIVER TO FTA ALL ORIGINAL SBA 7(A) LOAN
NOTES, WITH ALL NECESSARY ENDORSEMENTS, WITHIN FIVE BUSINESS DAYS OF THE
EXECUTION OR DELIVERY TO BORROWER THEREOF, AND SHALL IDENTIFY SUCH SBA 7(A) LOAN
NOTES TO FTA AS