IN REGULATIONS PROMULGATED PURSUANT THERETO)
OF ANY RESTRICTED PERSON, IS A "DIRECTOR" OR AN "EXECUTIVE OFFICER" OR
"PRINCIPAL SHAREHOLDER" (AS THOSE TERMS ARE DEFINED IN 12 U.S.C. § 375B(8) OR
(9) OR IN REGULATIONS PROMULGATED PURSUANT THERETO) OF ANY LENDER, OF A BANK
HOLDING COMPANY OF WHICH ANY LENDER IS A SUBSIDIARY OR OF ANY SUBSIDIARY OF A
BANK HOLDING COMPANY OF WHICH ANY LENDER IS A SUBSIDIARY.
43
SECTION 5.17.
SOLVENCY.
UPON GIVING EFFECT TO THE ISSUANCE OF THE
NOTES, THE EXECUTION OF THE LOAN DOCUMENTS BY BORROWER AND EACH GUARANTOR AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, BORROWER AND THE
GUARANTORS, ON A CONSOLIDATED BASIS, WILL BE SOLVENT.
NEITHER BORROWER NOR ANY
RESTRICTED PERSON HAS INCURRED (WHETHER UNDER THE LOAN DOCUMENTS OR OTHERWISE),
NOR DOES ANY RESTRICTED PERSON INTEND TO INCUR OR BELIEVE THAT IT WILL INCUR
LIABILITIES WHICH WILL BE BEYOND ITS ABILITY TO PAY AS SUCH DEBTS MATURE.
SECTION 5.18.
TAX SHELTER REGULATIONS.
BORROWER DOES NOT INTEND TO
TREAT THE LOANS AND/OR LETTERS OF CREDIT AND RELATED TRANSACTIONS AS BEING A
"REPORTABLE TRANSACTION" (WITHIN THE MEANING OF TREASURY REGULATION SECTION
1.6011-4).
IN THE EVENT BORROWER DETERMINES TO TAKE ANY ACTION INCONSISTENT
WITH SUCH INTENTION, IT WILL PROMPTLY NOTIFY AGENT THEREOF.
IF BORROWER SO
NOTIFIES AGENT, BORROWER ACKNOWLEDGES THAT ONE OR MORE OF THE LENDERS MAY TREAT
ITS LOANS AND/OR LETTERS OF CREDIT AS PART OF A TRANSACTION THAT IS SUBJECT TO
TREASURY REGULATION SECTION 301.6112-1, AND SUCH LENDER OR LENDERS, AS
APPLICABLE, WILL MAINTAIN THE LISTS AND OTHER RECORDS REQUIRED BY SUCH TREASURY
REGULATION.
SECTION 5.19.
TITLE TO PROPERTIES; LICENSES.
EACH RESTRICTED PERSON
HAS GOOD AND DEFENSIBLE TITLE TO ALL OF THE COLLATERAL AND TO ALL OF ITS
MATERIAL PROPERTIES AND ASSETS, FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES, OR
ADVERSE CLAIMS OTHER THAN PERMITTED LIENS AND FREE AND CLEAR OF ALL IMPEDIMENTS
TO THE USE OF SUCH PROPERTIES AND ASSETS IN SUCH RESTRICTED PERSON'S BUSINESS.
EACH RESTRICTED PERSON POSSESSES ALL LICENSES, PERMITS, FRANCHISES, PATENTS,
COPYRIGHTS, TRADEMARKS AND TRADE NAMES, AND OTHER INTELLECTUAL PROPERTY (OR
OTHERWISE POSSESSES THE RIGHT TO USE SUCH INTELLECTUAL PROPERTY WITHOUT
VIOLATION OF THE RIGHTS OF ANY OTHER PERSON) WHICH ARE NECESSARY TO CARRY OUT
ITS BUSINESS AS PRESENTLY CONDUCTED AND AS PRESENTLY PROPOSED TO BE CONDUCTED
HEREAFTER, WHICH COULD REASONABLY BE EXPECTED TO CAUSE A MATERIAL ADVERSE CHANGE
AND NO RESTRICTED PERSON IS IN VIOLATION OF THE TERMS UNDER WHICH IT POSSESSES
SUCH INTELLECTUAL PROPERTY OR THE RIGHT TO USE SUCH INTELLECTUAL PROPERTY, THE
VIOLATION OF WHICH COULD REASONABLY BE EXPECTED TO CAUSE A MATERIAL ADVERSE
CHANGE.
SECTION 5.20.
REGULATION U.
NONE OF THE BORROWER AND ITS SUBSIDIARIES
ARE ENGAGED IN THE BUSINESS OF EXTENDING CREDIT FOR THE PURPOSE OF PURCHASING OR
CARRYING MARGIN STOCK, AND NO PROCEEDS OF ANY LOANS WILL BE USED FOR A PURPOSE
WHICH VIOLATES REGULATION U.
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44
ARTICLE VI
AFFIRMATIVE COVENANTS OF BORROWER.
Borrower covenants and agrees that until the full and final payment