PRODUCT, PROCESS, METHOD,
SUBSTANCE, PART OR OTHER MATERIAL NOW EMPLOYED, OR NOW CONTEMPLATED TO BE
EMPLOYED, BY THE BORROWER OR ANY RESTRICTED SUBSIDIARY INFRINGES UPON ANY RIGHTS
HELD BY ANY OTHER PERSON.
NO CLAIM OR LITIGATION REGARDING ANY OF THE FOREGOING
IS PENDING OR, TO THE BEST KNOWLEDGE OF THE BORROWER, THREATENED, WHICH, EITHER
INDIVIDUALLY OR IN THE AGGREGATE, COULD REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
5.18
LABOR DISPUTES AND ACTS OF GOD.
NEITHER THE BUSINESS NOR THE
PROPERTIES OF ANY LOAN PARTY HAS BEEN AFFECTED BY ANY FIRE, EXPLOSION, ACCIDENT,
STRIKE, LOCKOUT OR OTHER LABOR DISPUTE, DROUGHT, STORM, HAIL, EARTHQUAKE,
EMBARGO, ACT OF GOD OR OF THE PUBLIC ENEMY OR OTHER CASUALTY (WHETHER OR NOT
COVERED BY INSURANCE), WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
5.19
SOLVENCY.
UPON GIVING EFFECT TO THE EXECUTION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY THE BORROWER AND EACH GUARANTOR THAT IS A PARTY
THERETO, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY,
THE CONSUMMATION OF THE TRANSACTIONS
44
CONTEMPLATED BY THE CREDIT AGREEMENT AND THE INCURRENCE OF INDEBTEDNESS
THEREUNDER AND THE CONSUMMATION OF THE ACQUISITION, THE BORROWER AND EACH
GUARANTOR WILL BE SOLVENT.
5.20
ACQUISITION CLOSING.
(A)
AFTER GIVING EFFECT TO THE ACQUISITION, ALL REPRESENTATIONS AND
WARRANTIES MADE BY ANY LOAN PARTY IN ANY LOAN DOCUMENT WILL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE.
(B)
ON THE CLOSING DATE, EACH OF THE REPRESENTATIONS AND WARRANTIES
MADE BY ANY PARTY IN THE ACQUISITION DOCUMENTS IS TRUE AND CORRECT IN ALL
MATERIAL RESPECTS, OTHER THAN WITH RESPECT TO THOSE MATTERS OF WHICH A
RESPONSIBLE OFFICER HAS OBTAINED KNOWLEDGE THEREOF FOLLOWING THE CLOSING DATE,
WHICH THE BORROWER REASONABLY BELIEVES DO NOT RESULT IN AN AGGREGATE DIMINUTION
IN VALUE OF THE ASSETS AND PROPERTIES ACQUIRED PURSUANT TO THE ACQUISITION IN AN
AMOUNT IN EXCESS OF ESCROWED FUNDS UNDER THE ACQUISITION AGREEMENT THAT WILL BE
DISBURSED TO THE BORROWER AS A RESULT THEREOF; AND NONE OF SUCH PARTIES HAS
FAILED TO PERFORM ANY MATERIAL OBLIGATION OR COVENANT REQUIRED BY THE
ACQUISITION DOCUMENTS TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE THE
CLOSING DATE.
SIMULTANEOUSLY WITH THE MAKING OF THE BRIDGE LOANS ON THE CLOSING
DATE, THE ACQUISITION WILL HAVE BEEN CONSUMMATED IN COMPLIANCE WITH THE MATERIAL
TERMS AND CONDITIONS OF THE ACQUISITION DOCUMENTS AND ALL CONDITIONS PRECEDENT
TO SUCH CONSUMMATION WILL BE FULLY SATISFIED OR WAIVED.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02,
and 6.03) cause each Restricted Subsidiary (as applicable) to:
6.01
FINANCIAL STATEMENTS.
DELIVER TO THE ADMINISTRATIVE AGENT AND EACH
LENDER, IN FORM AND DETAIL SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE
REQUIRED LENDERS:
(A)
AS SOON AS AVAILABLE, BUT IN ANY EVENT WITHIN 90 DAYS AFTER