IN
THE REASONABLE BUSINESS JUDGMENT OF THE BORROWERS, DEEMED ADVISABLE UNDER
REQUIREMENTS OF LAW, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR
THE ONGOING BUSINESS AND OPERATIONS OF EACH BORROWER AND ITS SUBSIDIARIES
SUBSEQUENT TO THE ACQUISITION.
SECTION 5.21
CONTRACTS.
SET FORTH IN SCHEDULE 5.21 IS AN ACCURATE AND
COMPLETE LIST OF ALL CONTRACTUAL OBLIGATIONS OF THE LOAN PARTIES REQUIRED TO BE
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION WITH THE FILING OF THE
HOLDINGS' FORM 10-K FOR ITS FISCAL YEAR ENDING DECEMBER 31, 2004 (SUCH
CONTRACTS, HEREIN "MATERIAL CONTRACTS").
EACH SUCH CONTRACTUAL OBLIGATION IS IN
FULL FORCE AND EFFECT IN ACCORDANCE WITH THE TERMS THEREOF.
THERE ARE NO
DEFAULTS BY ANY LOAN PARTY OR, TO THE BORROWER'S KNOWLEDGE AFTER DUE INQUIRY,
ANY OTHER DEFAULT IN EXISTENCE UNDER ANY SUCH CONTRACTUAL OBLIGATIONS.
SECTION 5.22
EMPLOYMENT AGREEMENTS.
SET FORTH IN SCHEDULE 5.22
("EMPLOYMENT CONTRACTS") IS A COMPLETE AND ACCURATE LIST OF EACH EMPLOYMENT
AGREEMENT WITH ANY SENIOR OFFICER OR SENIOR MANAGER TO WHICH ANY LOAN PARTY IS A
PARTY, OR BY WHICH IT IS BOUND.
SECTION 5.23
CONDITION OF PROPERTY.
ALL OF THE ASSETS AND PROPERTIES
OWNED BY, LEASED TO OR USED BY ANY LOAN PARTY MATERIAL TO THE CONDUCT OF THEIR
BUSINESS ARE IN ADEQUATE OPERATING CONDITION AND REPAIR, ORDINARY WEAR AND TEAR
EXCEPTED, AND ARE FREE AND CLEAR OF KNOWN DEFECTS EXCEPT FOR DEFECTS WHICH DO
NOT SUBSTANTIALLY INTERFERE WITH THE USE THEREOF IN THE CONDUCT OF NORMAL
OPERATIONS.
SECTION 5.24
SUBSIDIARIES.
THERE ARE NO SUBSIDIARIES OF ANY BORROWER AS
OF THE CLOSING DATE, EXCEPT AS SET FORTH ON SCHEDULE 5.24.
SECTION 5.25
TRADE RELATIONS.
THERE EXISTS NO ACTUAL OR, TO THE BEST OF
THE BORROWERS' KNOWLEDGE, THREATENED TERMINATION, CANCELLATION OR LIMITATION OF,
OR ANY MODIFICATION OR CHANGE IN, THE BUSINESS RELATIONSHIP OF ANY LOAN PARTY
WITH ANY CUSTOMER OR GROUP OF CUSTOMERS OF THE BORROWERS OR ANY SUPPLIER OF
GOODS OR SERVICES TO ANY LOAN PARTY WHICH COULD REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE CHANGE.
SECTION 5.26
LEASES.
SCHEDULE 5.26 ("EXISTING LEASES") SETS FORTH ALL OF
THE EXISTING LEASES OF EACH LOAN PARTY, AND NO LOAN PARTY IS IN DEFAULT UNDER OR
RESPECT TO ANY SUCH EXISTING LEASES OR ANY OTHER LEASE OF REAL OR PERSONAL
PROPERTY ENTERED INTO BY SUCH LOAN PARTY IN THE ORDINARY COURSE OF BUSINESS.
ARTICLE 6
COVENANTS
SECTION 6.1
AFFIRMATIVE COVENANTS.
THE BORROWERS AGREE THAT UNTIL THE
COMMITMENTS HAVE TERMINATED AND ALL OBLIGATIONS (OTHER THAN OBLIGATIONS THAT
EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 9.5)
HAVE BEEN PAID AND PERFORMED IN FULL, THE BORROWERS WILL PERFORM THE OBLIGATIONS
SET FORTH IN THIS SECTION 6.1.
49
SECTION 6.1.1
FINANCIAL INFORMATION, ETC.
THE BORROWERS' REPRESENTATIVE
WILL FURNISH, OR WILL CAUSE TO BE FURNISHED, TO EACH LENDER AND TO THE AGENT
COPIES OF THE FOLLOWING FINANCIAL STATEMENTS, REPORTS AND INFORMATION:
(A)
(I) PROMPTLY WHEN AVAILABLE AND IN ANY EVENT ON OR PRIOR TO
DECEMBER 15, 2005, WITH RESPECT TO BORROWERS' FISCAL YEAR ENDING DECEMBER 31,
2004, AND WITHIN NINETY