PARTY A,
PERMITTING PARTY A TO DIRECT THE DISPOSITION OF SUCH ACCOUNT UPON NOTICE TO
EVERGREEN INVESTMENTS.
(H)
DOCUMENTATION.
PARTY B SHALL PROVIDE SUCH
DOCUMENTS IN RESPECT OF THE ACCOUNTS DESCRIBED IN THIS PART 11 (OTHER THAN THE
ESCROW ACCOUNT) AND THEIR ESTABLISHMENT AND MAINTENANCE AS PARTY A SHALL FROM
TIME TO TIME REASONABLY REQUEST.
39
(I)
CERTIFICATES.
EACH CERTIFICATE TO BE
DELIVERED BY A RESPONSIBLE OFFICER PURSUANT TO THIS PART 11 SHALL INCLUDE A
STATEMENT THAT NO DEFAULT OR POTENTIAL TERMINATION EVENT SHALL HAVE OCCURRED AND
IS CONTINUING BOTH BEFORE AND AFTER GIVING EFFECT TO THE RELEASE OF FUNDS
CONTEMPLATED BY SUCH CERTIFICATE.
FUNDS SHALL NOT BE RELEASED UNLESS SUCH
STATEMENT IS INCLUDED IN THE APPLICABLE CERTIFICATE.
(J)
INVESTMENTS.
AMOUNTS IN THE OPERATING
ACCOUNT MAY BE INVESTED BY PARTY B IN PERMITTED INVESTMENTS DESCRIBED IN CLAUSES
(I) THROUGH (III) OF THE DEFINITION THEREOF.
ANY LOSSES ATTRIBUTABLE TO THE
INVESTMENT OF AMOUNTS IN SUCH ACCOUNTS SHALL NOT LIMIT OR MODIFY THE OBLIGATION
OF PARTY B TO MAKE ANY PAYMENTS REQUIRED TO BE MADE TO PARTY A UNDER THIS
AGREEMENT.
PART 12.
AFFIRMATIVE COVENANTS
(A)
EACH SPECIFIED ENTITY OF PARTY B, PARTY B
IN RESPECT OF EACH OF ITS SPECIFIED ENTITIES AND PARTY B WITH RESPECT TO ITSELF
AGREES WITH PARTY A THAT, AT ALL TIMES PRIOR TO THE DISCHARGE OF ISDA
OBLIGATIONS:
(I)
EXISTENCE; CONDUCT OF BUSINESS.
SUCH PARTY
SHALL PRESERVE AND MAINTAIN (A) ITS LEGAL EXISTENCE AS A CORPORATION, LIMITED
LIABILITY COMPANY, PARTNERSHIP OR OTHER SIMILAR ENTITY, AS APPLICABLE, IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ORGANIZATION, (B) ITS
QUALIFICATION TO DO BUSINESS IN EACH OTHER JURISDICTION WHERE SUCH QUALIFICATION
IS REQUIRED, EXCEPT TO THE EXTENT THAT FAILURE TO BE SO QUALIFIED COULD NOT
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT AND (C) ALL OF ITS
LICENSES, RIGHTS, PRIVILEGES AND FRANCHISES NECESSARY FOR THE MAINTENANCE OF ITS
EXISTENCE AND ITS QUALIFICATION TO DO BUSINESS, EXCEPT TO THE EXTENT THAT COULD
NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(II)
PAYMENT OF OBLIGATIONS AND TAX FILINGS.
SUCH
PARTY SHALL:
(A)
FILE ALL TAX RETURNS THAT ARE REQUIRED TO BE
FILED AND PAY ALL OF ITS OBLIGATIONS, INCLUDING LIABILITIES FOR TAXES, EXCEPT
WHERE (I) (X) THE VALIDITY OR AMOUNT OF SUCH PAYMENT IS BEING CONTESTED IN GOOD
FAITH BY APPROPRIATE PROCEEDINGS AND (Y) SUCH PARTY HAS ACCRUED FOR OR SET ASIDE
ON ITS BOOKS ADEQUATE RESERVES WITH RESPECT TO SUCH PAYMENT IN ACCORDANCE WITH
GAAP AND (II) THE FAILURE TO MAKE PAYMENT PENDING SUCH CONTEST COULD NOT
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(B)
DELIVER TO PARTY A ALL TAX FORMS AND OTHER
DOCUMENTS NECESSARY TO PERMIT PARTY A TO BOTH RECEIVE PAYMENT MADE BY SUCH
PARTY, AND CONFIRM THAT ALL PAYMENTS MADE BY SUCH PARTY SHALL BE RECEIVED FREE
OF WITHHOLDING TAX OR DEDUCTION OR STAMP, REGISTRATION OR SIMILAR TAX.
(III)
INSURANCE.
SUCH PARTY SHALL MAINTAIN THE TYPES
OF INSURANCE SET FORTH ON EXHIBIT 12(A)(III) AND,