THE OTHER LOAN DOCUMENTS TO WHICH BORROWER IS A
PARTY, AND ALL OTHER DOCUMENTS CONTEMPLATED HEREBY AND THEREBY, WHEN EXECUTED
AND DELIVERED BY BORROWER WILL BE THE LEGALLY VALID AND BINDING OBLIGATIONS OF
BORROWER, ENFORCEABLE AGAINST BORROWER IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS, EXCEPT AS ENFORCEMENT MAY BE LIMITED BY EQUITABLE PRINCIPLES OR BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, OR SIMILAR LAWS RELATING TO
OR LIMITING CREDITORS' RIGHTS GENERALLY.
(E)
THE LENDER'S LIENS ARE VALIDLY CREATED, PERFECTED, AND FIRST
PRIORITY LIENS, SUBJECT ONLY TO PERMITTED LIENS
5.10
LITIGATION.
(A)
OTHER THAN THOSE MATTERS DISCLOSED ON SCHEDULE 5.10(A) AND
IMMATERIAL MATTERS WHERE THE AMOUNT IN CONTROVERSY IS LESS THAN $10,000, THERE
ARE NO ACTIONS, SUITS, OR PROCEEDINGS PENDING OR, TO THE BEST KNOWLEDGE OF
BORROWER, THREATENED AGAINST BORROWER.
SCHEDULE 5.10(A) INCLUDES, AS
APPLICABLE, FOR EACH MATTER SET FORTH THEREON (I) THE NAME, DOCKET NUMBER AND
JURISDICTION FOR SUCH MATTER, (II) THE STATUS OF SUCH PROCEEDING, AND
(III) WHETHER SUCH MATTER IS COVERED BY AN INSURANCE POLICY AND, IF SO, THE
INSURANCE CARRIER, THE POLICY NUMBER AND THE DEDUCTIBLE AMOUNT ASSOCIATED WITH
SUCH INSURANCE POLICY.
(B)
THERE ARE NO ACTIONS, SUITS OR PROCEEDINGS PENDING OR, TO THE BEST
KNOWLEDGE OF BORROWER, THREATENED AGAINST BORROWER THAT QUESTION THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY ACTION TAKEN
BY BORROWER IN CONNECTION THEREWITH.
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(C)
SCHEDULE 5.10(C) LISTS ALL BORROWER'S COMMERCIAL TORT CLAIMS
EXISTING AS OF THE DATE HEREOF.
5.11
No Material Adverse Change.
All financial statements relating to
Borrower that have been delivered by Borrower to the Lender have been prepared
in accordance with GAAP (except, in the case of unaudited financial statements,
for the lack of footnotes and being subject to year-end audit adjustments) and
present fairly in all material respects, Borrower's financial condition as of
the date thereof and results of operations for the period then ended.
There has
not been a Material Adverse Change with respect to Borrower since the date of
the latest financial statements submitted to the Lender on or before the Closing
Date.
5.12
FRAUDULENT TRANSFER.
(A)
BORROWER IS SOLVENT BEFORE AND AFTER TAKING INTO ACCOUNT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(B)
NO TRANSFER OF PROPERTY IS BEING MADE BY BORROWER AND NO
OBLIGATION IS BEING INCURRED BY BORROWER IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS WITH THE INTENT TO
HINDER, DELAY, OR DEFRAUD EITHER PRESENT OR FUTURE CREDITORS OF BORROWER.
5.13
Employee Benefits.
None of Borrower, any of its Subsidiaries, or
any of their ERISA Affiliates maintains or contributes to any Benefit Plan.
(A)
NEITHER BORROWER NOR ANY ERISA AFFILIATE HAS EVER TAKEN ANY OF THE
FOLLOWING ACTIONS THAT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS OR
ASSETS OF THE BORROWER TAKEN AS A WHOLE:
(I)
VIOLATED OR FAILED TO BE IN COMPLIANCE WITH ANY BORROWER'S
BENEFIT PLAN.
(II)
FAILED TIMELY TO FILE ALL REPORTS AND FILINGS REQUIRED BY ERISA
TO BE FILED BY BORROWER.