BECOMING BOUND BY ANY SUCH LICENSE OR AGREEMENT WHICH IS REASONABLY
LIKELY TO HAVE A MATERIAL IMPACT ON BORROWER'S BUSINESS OR FINANCIAL CONDITION
(OTHER THAN OVER-THE-COUNTER SOFTWARE THAT IS COMMERCIALLY AVAILABLE TO THE
PUBLIC).
BORROWER SHALL TAKE SUCH STEPS AS BANK REASONABLY REQUESTS TO OBTAIN
THE CONSENT OF, OR WAIVER BY, ANY PERSON WHOSE CONSENT OR WAIVER IS NECESSARY
FOR ALL SUCH LICENSES (OTHER THAN OVER-THE-COUNTER SOFTWARE THAT IS COMMERCIALLY
AVAILABLE TO THE PUBLIC OR PUBLICLY AVAILABLE SOFTWARE) TO BE DEEMED
"COLLATERAL" AND FOR BANK TO HAVE A SECURITY INTEREST IN IT THAT MIGHT OTHERWISE
BE RESTRICTED OR PROHIBITED BY LAW OR BY THE TERMS OF ANY SUCH LICENSE OR
AGREEMENT (SUCH CONSENT OR AUTHORIZATION MAY INCLUDE A LICENSOR'S
5
AGREEMENT TO A CONTINGENT ASSIGNMENT OF THE LICENSE TO BANK IF BANK DETERMINES
THAT IS NECESSARY IN ITS REASONABLE JUDGMENT), WHETHER NOW EXISTING OR ENTERED
INTO IN THE FUTURE.
5.3
ACCOUNTS RECEIVABLE.
FOR ANY ELIGIBLE ACCOUNT IN ANY BORROWING
BASE CERTIFICATE, ALL STATEMENTS MADE BY BORROWER OR ITS REPRESENTATIVES AND ALL
UNPAID BALANCES APPEARING IN ALL INVOICES, INSTRUMENTS AND OTHER DOCUMENTS
SUBMITTED BY BORROWER OR ITS REPRESENTATIVES EVIDENCING SUCH ELIGIBLE ACCOUNTS
ARE AND SHALL BE TRUE AND CORRECT AND ALL SUCH INVOICES, INSTRUMENTS AND OTHER
DOCUMENTS SUBMITTED BY BORROWER OR ITS REPRESENTATIVES, AND ALL OF BORROWER'S
BOOKS ARE GENUINE AND IN ALL RESPECTS WHAT THEY PURPORT TO BE.
TO BORROWER'S
KNOWLEDGE, ALL SALES AND OTHER TRANSACTIONS UNDERLYING OR GIVING RISE TO EACH
ELIGIBLE ACCOUNT SHALL COMPLY IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE LAWS
AND GOVERNMENTAL RULES AND REGULATIONS.
BORROWER HAS NO KNOWLEDGE OF ANY ACTUAL
OR IMMINENT INSOLVENCY PROCEEDING OF ANY ACCOUNT DEBTOR WHOSE ACCOUNTS ARE AN
ELIGIBLE ACCOUNT IN ANY BORROWING BASE CERTIFICATE.
TO BORROWER'S KNOWLEDGE,
ALL SIGNATURES AND ENDORSEMENTS ON ALL DOCUMENTS, INSTRUMENTS, AND AGREEMENTS
RELATING TO ALL ELIGIBLE ACCOUNTS ARE GENUINE, AND ALL SUCH DOCUMENTS,
INSTRUMENTS AND AGREEMENTS ARE LEGALLY ENFORCEABLE IN ACCORDANCE WITH THEIR
TERMS.
5.4
LITIGATION.
EXCEPT AS DISCLOSED ON THE PERFECTION CERTIFICATE,
THERE ARE NO ACTIONS OR PROCEEDINGS PENDING OR, TO THE KNOWLEDGE OF THE
RESPONSIBLE OFFICERS, THREATENED IN WRITING BY OR AGAINST BORROWER OR ANY OF ITS
SUBSIDIARIES INVOLVING MORE THAN $200,000.
5.5
NO MATERIAL DEVIATION IN FINANCIAL STATEMENTS.
ALL CONSOLIDATED
FINANCIAL STATEMENTS FOR BORROWER AND ANY OF ITS SUBSIDIARIES DELIVERED TO BANK
FAIRLY PRESENT IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH GAAP THE CONSOLIDATED
FINANCIAL CONDITION AND CONSOLIDATED RESULTS OF OPERATIONS OF BORROWER AND ITS
SUBSIDIARIES.
THERE HAS NOT BEEN ANY MATERIAL DETERIORATION (NOT FORECAST OR
PROJECTED IN THE MOST RECENT BUSINESS PLAN OF BORROWER DATED FEBRUARY 17, 2006
PRESENTED TO AND ACCEPTED BY BANK) IN BORROWER'S CONSOLIDATED FINANCIAL
CONDITION SINCE THE DATE OF THE MOST RECENT FINANCIAL STATEMENTS SUBMITTED TO
BANK.
5.6
SOLVENCY.
THE FAIR SALABLE VALUE OF BORROWER'S ASSETS (INCLUDING
GOODWILL MINUS DISPOSITION COSTS) EXCEEDS THE FAIR VALUE OF ITS LIABILITIES;
BORROWER IS NOT LEFT WITH UNREASONABLY SMALL CAPITAL AFTER THE TRANSACTIONS IN
THIS AGREEMENT; AND BORROWER IS ABLE TO PAY ITS DEBTS (INCLUDING TRADE DEBTS) AS
THEY