A RELEASE OF ANY TOXIC OR HAZARDOUS
WASTE OR SUBSTANCE INTO THE ENVIRONMENT, WHICH NON-COMPLIANCE OR REMEDIAL ACTION
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.16.
INVESTMENT COMPANY ACT.
NEITHER THE PARENT, THE BORROWER NOR ANY
SUBSIDIARY IS AN "INVESTMENT COMPANY" OR A COMPANY "CONTROLLED" BY AN
"INVESTMENT COMPANY", WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED.
5.17.
INSURANCE.
THE PARENT HAS CAUSED THE BORROWER AND EACH SUBSIDIARY
TO MAINTAIN WITH FINANCIALLY SOUND AND REPUTABLE INSURANCE COMPANIES INSURANCE
ON THEIR PROPERTY IN SUCH AMOUNTS, SUBJECT TO SUCH DEDUCTIBLES AND
SELF-INSURANCE RETENTIONS AND COVERING SUCH PROPERTIES AND RISKS AS IS
CONSISTENT WITH SOUND BUSINESS PRACTICE FOR PERSONS ENGAGED IN THE SAME OR
SIMILAR BUSINESS AND WHICH ARE SIMILARLY SITUATED TO THE BORROWER.
46
5.18.
SOLVENCY.
AFTER GIVING EFFECT TO (I) THE CREDIT EXTENSIONS TO BE
MADE ON THE RESTATEMENT EFFECTIVE DATE OR SUCH OTHER DATE AS CREDIT EXTENSIONS
REQUESTED HEREUNDER ARE MADE, (II) THE OTHER TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND (III) THE PAYMENT AND ACCRUAL OF ALL
TRANSACTION COSTS WITH RESPECT TO THE FOREGOING, THE PARENT AND ITS SUBSIDIARIES
TAKEN AS A WHOLE ARE SOLVENT.
5.19.
COLLATERAL DOCUMENTS.
THE COLLATERAL DOCUMENTS CREATE, AS SECURITY
FOR THE OBLIGATIONS PURPORTED TO BE SECURED THEREBY, A VALID AND ENFORCEABLE
INTEREST IN AND LIEN ON ALL OF THE PROPERTIES COVERED THEREBY IN FAVOR OF THE
AGENT, AND UPON THE FILING OF ANY FINANCING STATEMENTS, NOTICES OR MORTGAGES
CONTEMPLATED THEREBY IN THE OFFICES SPECIFIED THEREIN, SUCH LIENS SHALL BE
SUPERIOR TO AND PRIOR TO THE RIGHT OF ALL THIRD PERSONS (OTHER THAN LIENS
PERMITTED UNDER SECTION 6.15, PROVIDED THAT NOTHING HEREIN SHALL BE DEEMED TO
CONSTITUTE AN AGREEMENT TO SUBORDINATE ANY OF THE LIENS OF THE AGENT UNDER THE
LOAN DOCUMENTS TO ANY LIENS OTHERWISE PERMITTED UNDER SECTION 6.15 (OTHER THAN
PERMITTED PRIORITY LIENS)) AND SUBJECT TO NO OTHER LIENS (OTHER THAN LIENS
PERMITTED UNDER SECTION 6.15).
5.20.
NO DEFAULT OR UNMATURED DEFAULT.
NO DEFAULT OR UNMATURED DEFAULT
HAS OCCURRED AND IS CONTINUING.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise
consent in writing:
6.1.
FINANCIAL REPORTING.
THE PARENT AND THE BORROWER WILL MAINTAIN,
FOR ITSELF AND EACH SUBSIDIARY, A SYSTEM OF ACCOUNTING ESTABLISHED AND
ADMINISTERED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, AND
THE BORROWER WILL FURNISH TO THE AGENT (WHICH SHALL FURNISH COPIES TO THE
LENDERS VIA INTRALINKS OR OTHER SIMILAR PASSWORD PROTECTED, RESTRICTED INTERNET
SITE):
6.1.1
WITHIN 90 DAYS AFTER THE CLOSE OF EACH OF THE PARENT'S FISCAL YEARS
(COMMENCING WITH THE FISCAL YEAR ENDING DECEMBER 31, 2007), FINANCIAL STATEMENTS
PREPARED IN ACCORDANCE WITH AGREEMENT ACCOUNTING PRINCIPLES ON A CONSOLIDATED
BASIS FOR ITSELF AND ITS SUBSIDIARIES, INCLUDING BALANCE SHEETS AS OF THE END OF
SUCH PERIOD, STATEMENTS OF INCOME AND STATEMENTS OF CASH FLOWS, ACCOMPANIED BY
(A) AN AUDIT OPINION, UNQUALIFIED AS TO SCOPE, OF A NATIONALLY RECOGNIZED FIRM
OF INDEPENDENT PUBLIC ACCOUNTANTS OR OTHER INDEPENDENT PUBLIC ACCOUNTANTS
REASONABLY ACCEPTABLE TO THE