LENDERS SHALL NOT
HAVE ANY RIGHT TO CAUSE SUCH FUNDS TO BE SO APPLIED, AND (III) NEITHER THE AGENT
NOR THE CANADIAN FACILITY AGENT SHALL HAVE ANY RIGHT TO ENDORSE OR COLLECT ANY
PAYMENTS MADE TO THE BLOCKED ACCOUNTS, OR TO WITHDRAW ANY FUNDS FROM THE BLOCKED
ACCOUNTS, OR TO DIRECT HOW THE FUNDS IN THE BLOCKED ACCOUNTS ARE APPLIED.
AN
ACTIVATION NOTICE SHALL NOT BE GIVEN UNLESS AND UNTIL EITHER (I) AN EVENT OF
DEFAULT OCCURS OR (II) EXCESS AVAILABILITY IS LESS THAN $10,000,000 AND, IN THE
CASE OF THIS CLAUSE (II), REQUISITE LENDERS HAVE DIRECTED THAT SUCH ACTIVATION
NOTICE BE GIVEN OR HAVE CONSENTED THERETO.
Borrower may amend any one or more of the Schedules referred to in this
Section 4 (subject to prior notice to Agent, as applicable) and any
representation, warranty, or covenant contained herein which refers to any such
Schedule shall from and after the date of any such amendment refer to such
Schedule as so amended; provided however, that in no event shall the amendment
of any such Schedule constitute a waiver by Agent and Lenders of any Default or
Event of Default that exists notwithstanding the amendment of such Schedule.
SECTION 5.
REPORTING AND OTHER AFFIRMATIVE COVENANTS
Each Obligor covenants and agrees that, so long as any of the Commitments
hereunder shall be in effect and until payment in full of all Obligations,
Obligors shall perform, and shall cause the other Loan Parties to perform, all
covenants in this Section 5.
34
5.1
FINANCIAL STATEMENTS AND OTHER REPORTS.
BORROWER WILL DELIVER TO AGENT AND EACH LENDER (UNLESS SPECIFIED TO BE DELIVERED
SOLELY TO AGENT) THE FINANCIAL STATEMENTS AND OTHER REPORTS CONTAINED IN THE
REPORTING RIDER ATTACHED HERETO.
5.2
ENDORSEMENT. EACH OBLIGOR HEREBY CONSTITUTES
AND APPOINTS AGENT AND ALL PERSONS DESIGNATED BY AGENT FOR THAT PURPOSE AS SUCH
OBLIGOR'S TRUE AND LAWFUL ATTORNEY-IN-FACT, WITH POWER TO ENDORSE SUCH OBLIGOR'S
NAME TO ANY OF THE ITEMS OF PAYMENT OR PROCEEDS DESCRIBED IN SUBSECTION 4.25
ABOVE AND ALL PROCEEDS OF COLLATERAL THAT COME INTO AGENT'S POSSESSION OR UNDER
AGENT'S CONTROL.
BOTH THE APPOINTMENT OF AGENT AS EACH OBLIGOR'S ATTORNEY AND
AGENT'S RIGHTS AND POWERS ARE COUPLED WITH AN INTEREST AND ARE IRREVOCABLE UNTIL
PAYMENT IN FULL AND COMPLETE PERFORMANCE OF ALL OF THE OBLIGATIONS (OTHER THAN
CONTINGENT INDEMNITY OBLIGATIONS TO THE EXTENT NO UNSATISFIED CLAIM HAS BEEN
ASSERTED).
5.3
MAINTENANCE OF PROPERTIES. OBLIGORS WILL
MAINTAIN OR CAUSE TO BE MAINTAINED IN GOOD REPAIR, WORKING ORDER AND CONDITION
ALL MATERIAL PROPERTIES USED IN THE BUSINESSES OF OBLIGORS AND THEIR
SUBSIDIARIES AND WILL MAKE OR CAUSE TO BE MADE ALL APPROPRIATE REPAIRS, RENEWALS
AND REPLACEMENTS THEREOF.
5.4
COMPLIANCE WITH LAWS.
OBLIGORS WILL, AND
WILL CAUSE THEIR SUBSIDIARIES TO, COMPLY WITH THE REQUIREMENTS OF ALL APPLICABLE
LAWS, RULES, REGULATIONS AND ORDERS OF ANY GOVERNMENTAL AUTHORITY AS NOW IN
EFFECT AND WHICH MAY BE IMPOSED IN THE FUTURE IN ALL JURISDICTIONS IN WHICH
OBLIGORS OR ANY OF THEIR SUBSIDIARIES IS NOW DOING BUSINESS OR MAY HEREAFTER BE
DOING BUSINESS,