OMITTING TO
STATE ANY MATERIAL FACT NECESSARY TO MAKE SUCH INFORMATION NOT MISLEADING IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH MADE (IT BEING RECOGNIZED BY THE
ADMINISTRATIVE AGENT AND THE LENDERS THAT ANY PROJECTIONS AND FORECASTS PROVIDED
BY THE COMPANY ARE BASED ON GOOD FAITH ESTIMATES AND ASSUMPTIONS BELIEVED BY THE
COMPANY TO BE REASONABLE AS OF THE DATE OF THE APPLICABLE PROJECTIONS OR
ASSUMPTIONS AND THAT ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED BY ANY
SUCH PROJECTIONS AND FORECASTS MAY DIFFER FROM PROJECTED OR FORECASTED RESULTS).
9.17
INTELLECTUAL PROPERTY.
EACH LOAN PARTY OWNS AND POSSESSES OR HAS A
LICENSE OR OTHER RIGHT TO USE ALL PATENTS, PATENT RIGHTS, TRADEMARKS, TRADEMARK
RIGHTS, TRADE NAMES, TRADE NAME RIGHTS, SERVICE MARKS, SERVICE MARK RIGHTS AND
COPYRIGHTS AS ARE NECESSARY FOR THE CONDUCT OF THE BUSINESSES OF THE LOAN
PARTIES, WITHOUT ANY INFRINGEMENT UPON RIGHTS OF OTHERS WHICH COULD REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
9.18
BURDENSOME OBLIGATIONS.
NO LOAN PARTY IS A PARTY TO ANY AGREEMENT
OR CONTRACT OR SUBJECT TO ANY RESTRICTION CONTAINED IN ITS ORGANIZATIONAL
DOCUMENTS WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
9.19
LABOR MATTERS.
EXCEPT AS SET FORTH ON SCHEDULE 9.19, NO LOAN PARTY
IS SUBJECT TO ANY LABOR OR
COLLECTIVE BARGAINING AGREEMENT.
THERE ARE NO
EXISTING OR THREATENED STRIKES, LOCKOUTS OR OTHER LABOR DISPUTES INVOLVING ANY
LOAN PARTY THAT SINGLY OR IN THE AGGREGATE COULD REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT.
HOURS WORKED BY AND PAYMENT MADE TO EMPLOYEES OF THE
LOAN PARTIES ARE IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT AND EACH OTHER
APPLICABLE LAW, RULE OR REGULATION DEALING WITH SUCH MATTERS, EXCEPT WHERE SUCH
NON-COMPLIANCE COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
9.20
NO DEFAULT.
NO EVENT OF DEFAULT OR UNMATURED EVENT OF DEFAULT
EXISTS OR WOULD RESULT FROM THE INCURRENCE BY ANY LOAN PARTY OF ANY DEBT
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT.
SECTION 10
AFFIRMATIVE COVENANTS.
UNTIL THE EXPIRATION OR TERMINATION OF THE COMMITMENTS AND THEREAFTER UNTIL ALL
OBLIGATIONS HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS ARE PAID IN FULL AND
ALL LETTERS OF CREDIT HAVE BEEN TERMINATED, THE COMPANY AGREES THAT, UNLESS AT
ANY TIME THE REQUIRED LENDERS SHALL OTHERWISE EXPRESSLY CONSENT IN WRITING, IT
WILL:
10.1
REPORTS, CERTIFICATES AND OTHER INFORMATION.
FURNISH TO THE
ADMINISTRATIVE AGENT AND EACH LENDER:
10.1.1
ANNUAL REPORT.
PROMPTLY WHEN AVAILABLE AND IN ANY EVENT WITHIN 90
DAYS AFTER THE CLOSE OF EACH FISCAL YEAR: (A) A COPY OF THE ANNUAL AUDIT REPORT
OF PARENT AND ITS SUBSIDIARIES FOR SUCH FISCAL YEAR, INCLUDING THEREIN
CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF EARNINGS AND CASH FLOWS OF PARENT
AND ITS SUBSIDIARIES AS AT THE END OF SUCH FISCAL YEAR,
CERTIFIED WITHOUT
ADVERSE REFERENCE TO GOING CONCERN VALUE AND WITHOUT QUALIFICATION BY
INDEPENDENT AUDITORS OF RECOGNIZED STANDING SELECTED BY
38
PARENT AND REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, TOGETHER WITH (I)
A WRITTEN STATEMENT FROM SUCH ACCOUNTANTS TO THE EFFECT THAT IN