SALE IN THE
ORDINARY COURSE OF SUCH CREDIT PARTY'S BUSINESS;
(I)
IS NOT SUBJECT TO A FIRST PRIORITY LIEN
IN FAVOR OF AGENT ON BEHALF OF ITSELF AND LENDERS;
(J)
BREACHES ANY OF THE REPRESENTATIONS OR
WARRANTIES PERTAINING TO INVENTORY SET FORTH IN THE LOAN DOCUMENTS;
(K)
CONSISTS OF HAZARDOUS MATERIALS OR GOODS
THAT CAN BE TRANSPORTED OR SOLD ONLY WITH LICENSES THAT ARE NOT READILY
AVAILABLE;
(L)
IS NOT COVERED BY CASUALTY INSURANCE
REQUIRED TO BE MAINTAINED UNDER SECTION 2.2 OF THIS AGREEMENT OR OTHERWISE
REASONABLY ACCEPTABLE TO AGENT; OR
(M)
WITH RESPECT TO WHICH AGENT DOES NOT HAVE THE
RIGHT, IN AGENT'S REASONABLE DETERMINATION, TO FREELY TRANSFER INVENTORY OR
COMPLETE THE PRODUCTION OF INVENTORY WITHOUT THE NEED FOR ANY LICENSE,
SUBLICENSE OR CONSENT WHICH HAS NOT BEEN OBTAINED.
17
1.9
[INTENTIONALLY OMITTED]
1.10
LOAN ACCOUNTS.
AGENT SHALL MAINTAIN A LOAN
ACCOUNT (THE "LOAN ACCOUNT") ON ITS BOOKS TO RECORD:
ALL ADVANCES AND THE TERM
LOANS, ALL PAYMENTS MADE BY BORROWER, AND ALL OTHER DEBITS AND CREDITS AS
PROVIDED IN THIS AGREEMENT WITH RESPECT TO THE LOANS OR ANY OTHER OBLIGATIONS.
ALL ENTRIES IN THE LOAN ACCOUNT SHALL BE MADE IN ACCORDANCE WITH AGENT'S
CUSTOMARY ACCOUNTING PRACTICES AS IN EFFECT FROM TIME TO TIME.
THE BALANCE IN
THE LOAN ACCOUNT, AS RECORDED ON AGENT'S MOST RECENT PRINTOUT OR OTHER WRITTEN
STATEMENT, SHALL, ABSENT MANIFEST ERROR, BE PRESUMPTIVE EVIDENCE OF THE AMOUNTS
DUE AND OWING TO AGENT AND LENDERS BY BORROWER; PROVIDED, THAT ANY FAILURE TO SO
RECORD OR ANY ERROR IN SO RECORDING SHALL NOT LIMIT OR OTHERWISE AFFECT
BORROWER'S DUTY TO PAY THE OBLIGATIONS.
AGENT SHALL RENDER TO BORROWER A
MONTHLY ACCOUNTING OF TRANSACTIONS WITH RESPECT TO THE LOANS SETTING FORTH THE
BALANCE OF THE LOAN ACCOUNT FOR THE IMMEDIATELY PRECEDING MONTH.
UNLESS
BORROWER NOTIFIES AGENT IN WRITING OF ANY OBJECTION TO ANY SUCH ACCOUNTING
(SPECIFICALLY DESCRIBING THE BASIS FOR SUCH OBJECTION), WITHIN ONE HUNDRED
EIGHTY (180) DAYS AFTER THE DATE THEREOF, EACH AND EVERY SUCH ACCOUNTING SHALL,
ABSENT MANIFEST ERROR, BE DEEMED FINAL, BINDING AND CONCLUSIVE ON BORROWER IN
ALL RESPECTS AS TO ALL MATTERS REFLECTED THEREIN.
ONLY THOSE ITEMS EXPRESSLY
OBJECTED TO IN SUCH NOTICE SHALL BE DEEMED TO BE DISPUTED BY BORROWER.
NOTWITHSTANDING ANY PROVISION HEREIN CONTAINED TO THE CONTRARY, ANY LENDER MAY
ELECT (WHICH ELECTION MAY BE REVOKED) TO DISPENSE WITH THE ISSUANCE OF NOTES TO
THAT LENDER AND MAY RELY ON THE LOAN ACCOUNT AS EVIDENCE OF THE AMOUNT OF
OBLIGATIONS FROM TIME TO TIME OWING TO IT.
1.11
YIELD PROTECTION; ILLEGALITY.
(A)
CAPITAL ADEQUACY AND OTHER ADJUSTMENTS.
IN
THE EVENT THAT ANY LENDER SHALL HAVE DETERMINED THAT THE ADOPTION AFTER THE DATE
HEREOF OF ANY LAW, TREATY, GOVERNMENTAL (OR QUASI-GOVERNMENTAL) RULE,
REGULATION, GUIDELINE OR ORDER REGARDING CAPITAL ADEQUACY, RESERVE REQUIREMENTS
OR SIMILAR REQUIREMENTS OR COMPLIANCE BY ANY LENDER OR ANY CORPORATION
CONTROLLING SUCH LENDER WITH ANY REQUEST OR DIRECTIVE REGARDING CAPITAL
ADEQUACY, RESERVE REQUIREMENTS OR SIMILAR REQUIREMENTS (WHETHER OR NOT HAVING
THE FORCE OF LAW AND WHETHER OR NOT FAILURE TO