CONSTITUTE A BREACH OR DEFAULT BY ANY BORROWER EXISTS, WITH
RESPECT THERETO. NO BORROWER HAS RECEIVED ANY NOTICE OF CANCELLATION OR
NON-RENEWAL OF ANY OF THE MATERIAL CONTRACTS. AS OF THE CLOSING DATE, TO THE
KNOWLEDGE OF ANY BORROWER, NONE OF THE MATERIAL CONTRACTS NOR ANY RIGHTS
THEREUNDER WILL BE IMPAIRED BY THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT.
4.28
CAPACITY. EACH BORROWER AND EACH OF ITS SUBSIDIARIES, BY REASON OF
ITS OWN BUSINESS AND FINANCIAL EXPERIENCE HAS THE "CAPACITY TO PROTECT ITS OWN
INTERESTS" IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
WITHIN THE MEANING OF SECTION 25118(F)(2) AND SECTION 25118(G) OF THE CALIFORNIA
CORPORATIONS CODE.
4.29
INVESTMENT COMPANY ACTS. NONE OF THE BORROWERS OR ANY OF ITS
SUBSIDIARIES IS AN "INVESTMENT COMPANY" OR AN "AFFILIATED PERSON" OR "PROMOTER"
OF, OR "PRINCIPAL UNDERWRITER" OF OR FOR, AN "INVESTMENT COMPANY", AS SUCH TERMS
ARE DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
4.30
THE IFN CREDIT FACILITY. THE TOTAL OUTSTANDING AMOUNT OF THE IFN
CREDIT FACILITY AS OF THE CLOSING DATE IS €845,688.
4.31
THE LLOYDS CREDIT FACILITY. THE TOTAL OUTSTANDING AMOUNT OF THE
LLOYDS CREDIT FACILITY AS OF THE CLOSING DATE IS THE SUM OF $968,209.49 AND
£808,512.14.
4.32
THE WELLS FARGO CREDIT FACILITY. THE TOTAL OUTSTANDING AMOUNT OF
THE WELLS FARGO CREDIT FACILITY AS OF THE CLOSING DATE IS $1,926,773.53.
5.
AFFIRMATIVE COVENANTS.
Each Borrower covenants and agrees that, until termination of all of the
Commitments and payment in full of the Obligations, Borrowers shall and shall
cause each of their respective Subsidiaries to do all of the following
(provided, however, that only Administrative Borrower is
29
required to comply with Section 5.2 and Section 5.3, in each case on behalf of
itself and the other Borrowers):
5.1
ACCOUNTING SYSTEM. MAINTAIN A SYSTEM OF ACCOUNTING THAT ENABLES
BORROWERS TO PRODUCE FINANCIAL STATEMENTS IN ACCORDANCE WITH GAAP AND MAINTAIN
RECORDS PERTAINING TO THE COLLATERAL THAT CONTAIN INFORMATION AS FROM TIME TO
TIME REASONABLY MAY BE REQUESTED BY AGENT. BORROWERS ALSO SHALL KEEP A REPORTING
SYSTEM THAT SHOWS ALL ADDITIONS, SALES, CLAIMS, RETURNS AND ALLOWANCES WITH
RESPECT TO THEIR SALES.
5.2
COLLATERAL REPORTING. PROVIDE AGENT (AND IF SO REQUESTED BY AGENT,
WITH COPIES FOR EACH LENDER) WITH EACH OF THE REPORTS SET FORTH ON SCHEDULE 5.2
AT THE TIMES SPECIFIED THEREIN. IN ADDITION, EACH BORROWER AGREES TO REASONABLY
COOPERATE FULLY WITH AGENT TO MAINTAIN A SYSTEM OF ELECTRONIC COLLATERAL
REPORTING IN ORDER TO PROVIDE ELECTRONIC REPORTING OF EACH OF THE ITEMS SET
FORTH ABOVE.
5.3
FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. DELIVER TO AGENT,
WITH COPIES TO EACH LENDER, EACH OF THE FINANCIAL STATEMENTS, REPORTS, OR OTHER
ITEMS SET FORTH ON SCHEDULE 5.3 AT THE TIME SPECIFIED HEREIN. IN ADDITION,
PARENT AGREES THAT NO SUBSIDIARY OF PARENT WILL HAVE A FISCAL YEAR END DIFFERENT
FROM THAT OF PARENT, OTHER THAN AS REQUIRED BY APPLICABLE LAW.
5.4
APPRAISAL. PERMIT AGENT TO HAVE THE INVENTORY REAPPRAISED BY AN
APPRAISAL COMPANY SELECTED BY AGENT FROM TIME TO TIME AFTER