SUCH DEBTS AND OTHER
LIABILITIES BECOME ABSOLUTE AND MATURED, (III) THE COMPANY AND THE SUBSIDIARY
GUARANTORS, TAKEN AS A WHOLE, WILL BE ABLE TO PAY THEIR DEBTS AND LIABILITIES,
SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND LIABILITIES BECOME
ABSOLUTE AND MATURED, AND (IV) EACH OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
WILL NOT HAVE UNREASONABLY SMALL CAPITAL WITH WHICH TO CONDUCT THE BUSINESS
FOLLOWING SUCH DATE.
THE REPRESENTATION IN THIS SUBSECTION (VIII) IS MADE
WITHOUT GIVING EFFECT TO ANY DEBTS AND OBLIGATIONS OF THE COMPANY TO THE
INVESTORS (INCLUDING GOLDMAN SACHS INVESTMENT PARTNERS MASTER FUND, L.P. OR
AFFILIATED PARTIES AND SYNTEK CAPITAL AG).
(B)
COVENANTS AND AGREEMENTS.
EACH GRANTOR HEREBY COVENANTS AND
AGREES AS FOLLOWS:
(I)
IT WILL PROMPTLY NOTIFY THE COLLATERAL AGENT IN WRITING OF ANY
CHANGE (A) IN ITS LEGAL NAME, (B) IN THE LOCATION OF ITS CHIEF EXECUTIVE OFFICE,
PRINCIPAL PLACE OF BUSINESS, ANY OFFICE IN WHICH IT MAINTAINS BOOKS OR RECORDS
RELATING TO ANY OF THE COLLATERAL OWNED OR HELD BY IT OR ON ITS BEHALF OR,
EXCEPT TO THE EXTENT PERMITTED BY SECTION 3.1(B)(VII) OR SECTION 3.2, ANY OFFICE
OR FACILITY AT WHICH ANY SUCH COLLATERAL IS LOCATED (INCLUDING THE ESTABLISHMENT
OF ANY SUCH NEW OFFICE OR FACILITY), (C) IN ITS IDENTITY OR LEGAL OR
ORGANIZATIONAL STRUCTURE OR ITS JURISDICTION OF FORMATION, OR (D) IN ITS FEDERAL
TAXPAYER IDENTIFICATION NUMBER.
IT AGREES NOT TO EFFECT OR PERMIT ANY CHANGE
REFERRED TO IN THE PRECEDING SENTENCE UNLESS ALL FILINGS HAVE BEEN MADE UNDER
THE UNIFORM COMMERCIAL CODE OR OTHERWISE THAT ARE REQUIRED IN ORDER FOR THE
COLLATERAL AGENT TO CONTINUE AT ALL TIMES FOLLOWING SUCH CHANGE TO HAVE A VALID,
LEGAL AND PERFECTED SECURITY INTEREST IN ALL THE COLLATERAL WITH THE PRIORITY
REQUIRED HEREBY.
19
(II)
IT SHALL MAINTAIN, AT ITS OWN COST AND EXPENSE, SUCH COMPLETE AND
ACCURATE RECORDS WITH RESPECT TO THE COLLATERAL OWNED OR HELD BY IT OR ON ITS
BEHALF AS IS CONSISTENT WITH ITS CURRENT PRACTICES AND IN ACCORDANCE WITH SUCH
PRUDENT AND STANDARD PRACTICES USED IN INDUSTRIES THAT ARE THE SAME AS OR
SIMILAR TO THOSE IN WHICH IT IS ENGAGED, BUT IN ANY EVENT TO INCLUDE COMPLETE
ACCOUNTING RECORDS INDICATING ALL PAYMENTS AND PROCEEDS RECEIVED WITH RESPECT TO
ANY PART OF SUCH COLLATERAL.
(III)
IT SHALL, AT ITS OWN COST AND EXPENSE, TAKE ANY AND ALL ACTIONS
REASONABLY NECESSARY TO DEFEND TITLE TO THE COLLATERAL OWNED OR HELD BY IT OR ON
ITS BEHALF AGAINST ALL PERSONS AND TO DEFEND THE SECURITY INTEREST IN SUCH
COLLATERAL AND THE PRIORITY THEREOF AGAINST ANY LIEN OR OTHER INTEREST NOT
EXPRESSLY PERMITTED BY THE SECURED TRANSACTION DOCUMENTS, AND IN FURTHERANCE
THEREOF, IT SHALL NOT TAKE, OR PERMIT TO BE TAKEN, ANY ACTION NOT OTHERWISE
EXPRESSLY PERMITTED BY THE SECURED TRANSACTION DOCUMENTS THAT COULD IMPAIR THE
SECURITY INTEREST OR THE PRIORITY THEREOF OR ANY SECURED PARTY'S RIGHTS IN OR TO
SUCH COLLATERAL.
(IV)
THE COLLATERAL AGENT AND SUCH PERSONS AS THE COLLATERAL AGENT MAY
DESIGNATE SHALL HAVE THE RIGHT, AT THE