FINOVA s books and records showing the account between FINOVA and Borrower shall be admissible as evidence in any action or proceeding, shall be binding upon the undersigned Guarantor for the purpose of establishing the items therein set forth and shall constitute prima facie proof hereof. FINOVA's monthly statements rendered to Borrower shall, to the extent to which no written objection is made within thirty (30) days after the date thereof, constitute an account stated between FINOVA and Borrower and be binding upon the undersigned Guarantor.
FINOVA. FINOVA Capital Corporation, a Delaware corporation, in its individual capacity and as agent for all lenders.
FINOVA acknowledges that it had access to the books and records of Borrower. There has been or will be delivered to FINOVA by Borrower in connection with this Amendment, the Business Plan and certain estimates of income and expense and related financial projections concerning the property owned by Borrower and repayment of the Loan. The Business Plan and such books, records, financial material and projections have been prepared solely by or under the direction of Borrower. Borrower and the Guarantor acknowledge and agree FINOVA will not be deemed, directly or indirectly, whether by any action, failure to respond thereto or otherwise, in any way to have approved, consented to, ratified or adopted said books, records, financial material or projections.
FINOVA and Oakhurst represent, warrant, and covenant (jointly and severally) to KTI that:
FINOVA. (b) FINOVA Group; (c) all officers, directors, and employees of FINOVA or FINOVA Group; (d) the Additional Defendants; (e) all officers and directors of the Additional Defendants (but only with respect to Thaxton-Related Claims arising out of the performance of their dutiex xx xxficers and directors of the Additional Defendants); and (f) all attorneys and professionals for FINOVA and the Additional Defendants in the Thaxton Debtors' Bankruptcy Cases, the Adversary Proceeding, the Grexxxx Xxtative Class Action, and the Society Action.
FINOVA on behalf of itself and all of its parents, subsidiaries, affiliates, licensees, divisions, predecessors, successors, assigns, shareholders, directors, officers, employees, agents, administrators, representatives, servants, heirs, executors, beneficiaries, and attorneys, absolutely and forever releases and discharges Altris and all of its past and current parents, subsidiaries, affiliates, licensees, divisions, predecessors, successors, assigns, shareholders, directors, officers, employees, agents, administrators, representatives, servants, heirs, executors, beneficiaries, and attorneys from any and all actions, claims, demands, obligations, interests, financial or property losses, damages, debts, liabilities, accounts, costs, attorneys' fees, expenses, liens, and causes of action of every kind and nature whatsoever (whether known or unknown, suspected or unsuspected) that Finova now has or may have, had or may have had, or at any time in the future may have against any released person or entity arising out of, resulting from, or relating to the Restatements or the SEC Report Amendments, including but not limited to (a) any inaccuracy or misrepresentation in, or any omission from, the financial statements as originally prepared by Altris or the SEC Reports as originally filed with the Securities and Exchange Commission, certain of which may have been presented to Finova and may have been the subject of representations, warranties or covenants of Altris to Finova and (b) any failure to timely file with the Securities and Exchange Commission or deliver to Finova financial statements or reports for the periods covered by the SEC Reports or the Restatements or the year ended December 31, 1997 or the quarter ended March 31, 1998.
FINOVA s agents and examiners shall have the right at any time during Borrower's regular business hours to review, inspect, examine, check and make copies of extracts from Borrower's Records.
FINOVA. The term AFINOVA@ means FINOVA Mezzanine Capital Inc., f/k/a Sirrom Capital Corporation, a Tennessee corporation.
FINOVA. If no Event of Default or Incipient Default exists, FINOVA shall not conduct any such inspections more than four times per calendar year.
FINOVA. Notwithstanding any provision in the Agreement to the contrary, the parties acknowledge that they have not received a consent to the assignment of the Company=s agreements with FINOVA Technology Finance, Inc., f/k/a Financing for Science International, Inc. ("FINOVA") and have agreed to proceed with the Closing as contemplated under the Agreement subject to the following:
(a) the Sellers and the Purchaser will cooperate using reasonable good faith efforts to obtain FINOVA=s consent to the assignment of its contracts with the Company to the Purchaser with minimum fees, costs and expenses;
(b) to the extent there are any such fees, costs or expenses of any kind whatsoever, including without limitation penalties, the Sellers, jointly and severally, on the one-hand, and the Purchaser, on the other hand, agree to split such fees, costs and expenses on a fifty-fifty basis. Any such cost splitting shall not be subject to the provisions of ARTICLE IX of the Agreement.
