paper and other agreement constituting or
evidencing Collateral is (or, in the case of all future Collateral, will be when
arising or issued) the valid, genuine and legally enforceable obligation,
subject to no defense, setoff or counterclaim, of the account debtor or other
obligor named therein or in the Borrower's records pertaining thereto as being
obligated to pay such obligation.
Section 5.18
Financial Solvency. Both before and
after giving effect to all of the transactions contemplated in the Loan
Documents, none of the Borrower or its Affiliates:
(A)
WAS OR WILL BE INSOLVENT, AS THAT TERM IS
USED AND DEFINED IN SECTION 101(32) OF THE UNITED STATES BANKRUPTCY CODE AND
SECTION 2 OF THE UNIFORM FRAUDULENT TRANSFER ACT;
(B)
HAS UNREASONABLY SMALL CAPITAL OR IS ENGAGED
OR ABOUT TO ENGAGE IN A BUSINESS OR A TRANSACTION FOR WHICH ANY REMAINING ASSETS
OF THE BORROWER OR SUCH AFFILIATE ARE UNREASONABLY SMALL;
(C)
BY EXECUTING, DELIVERING OR PERFORMING ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS OR OTHER DOCUMENTS TO WHICH IT IS A PARTY
OR BY TAKING ANY ACTION WITH RESPECT THERETO, INTENDS TO, NOR BELIEVES THAT IT
WILL, INCUR DEBTS BEYOND ITS ABILITY TO PAY THEM AS THEY MATURE;
(D)
BY EXECUTING, DELIVERING OR PERFORMING ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS OR OTHER DOCUMENTS TO WHICH IT IS A PARTY
OR BY TAKING ANY ACTION WITH RESPECT THERETO, INTENDS TO HINDER, DELAY OR
DEFRAUD EITHER ITS PRESENT OR FUTURE CREDITORS; AND
(E)
AT THIS TIME CONTEMPLATES FILING A PETITION
IN BANKRUPTCY OR FOR AN ARRANGEMENT OR REORGANIZATION OR SIMILAR PROCEEDING
UNDER ANY LAW ANY JURISDICTION, NOR, TO THE BEST KNOWLEDGE OF THE BORROWER, IS
THE SUBJECT OF ANY ACTUAL, PENDING OR THREATENED BANKRUPTCY, INSOLVENCY OR
SIMILAR PROCEEDINGS UNDER ANY LAW OF ANY JURISDICTION.
ARTICLE VI.
COVENANTS
So long as the Obligations shall remain unpaid, or the Credit Facility shall
remain outstanding, the Borrower will comply with the following requirements,
unless the Lender shall otherwise consent in writing:
31
Section 6.1
Reporting Requirements. The
Borrower will deliver, or cause to be delivered, to the Lender each of the
following, which shall be in form and detail acceptable to the Lender:
(A)
ANNUAL FINANCIAL STATEMENTS. AS SOON AS
AVAILABLE, AND IN ANY EVENT WITHIN 120 DAYS AFTER THE END OF EACH FISCAL YEAR OF
THE BORROWER, THE BORROWER WILL DELIVER, OR CAUSE TO BE DELIVERED, TO THE
LENDER, THE BORROWER'S 10-K REPORT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION AND PREPARED BY THE BORROWER AND CERTIFIED BY INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS SELECTED BY THE BORROWER AND ACCEPTABLE TO THE LENDER, FOR
THE FISCAL YEAR THEN ENDED, ALL IN REASONABLE DETAIL AND PREPARED IN ACCORDANCE
WITH GAAP, TOGETHER WITH (I) COPIES OF ALL MANAGEMENT LETTERS PREPARED BY SUCH
ACCOUNTANTS; (II) A REPORT SIGNED BY SUCH ACCOUNTANTS STATING THAT IN MAKING THE
INVESTIGATIONS NECESSARY FOR SAID OPINION THEY OBTAINED NO KNOWLEDGE, EXCEPT AS
SPECIFICALLY STATED, OF ANY DEFAULT OR EVENT OF DEFAULT AND ALL RELEVANT FACTS
IN REASONABLE DETAIL TO EVIDENCE, AND THE COMPUTATIONS AS