SHARE (SUCH AUTHORIZED
SHARES OF COMMON STOCK, TOGETHER WITH ANY SUBSEQUENTLY AUTHORIZED SHARES OF SUCH
COMMON STOCK, THE "BORROWER COMMON STOCK"), OF WHICH 34,925,432 SHARES ARE
ISSUED AND OUTSTANDING ON THE INITIAL BORROWING DATE (INCLUDING 473,716 SHARES
OF RESTRICTED STOCK AWARDED UNDER THE BORROWER'S 2005 STOCK INCENTIVE PLAN ON
THE INITIAL BORROWING DATE, WHICH ARE DEEMED OUTSTANDING FOR PURPOSES OF GAAP)
AND (II) 100,000,000 SHARES OF PREFERRED STOCK, $.01 PER SHARE, NONE OF WHICH IS
ISSUED AND OUTSTANDING ON THE INITIAL BORROWING DATE.
ALL SUCH OUTSTANDING
SHARES HAVE BEEN DULY AND VALIDLY ISSUED, ARE FULLY PAID AND NONASSESSABLE AND
ARE FREE OF PREEMPTIVE RIGHTS.
ON THE INITIAL BORROWING DATE, THE BORROWER DOES
NOT HAVE OUTSTANDING ANY SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR ITS
CAPITAL STOCK OR OUTSTANDING ANY RIGHTS TO SUBSCRIBE FOR OR TO PURCHASE, OR ANY
OPTIONS FOR THE PURCHASE OF, OR ANY AGREEMENT PROVIDING FOR THE ISSUANCE
(CONTINGENT OR OTHERWISE) OF, OR ANY CALLS, COMMITMENTS OR CLAIMS OF ANY
CHARACTER RELATING TO, ITS CAPITAL STOCK OR ANY STOCK APPRECIATION OR SIMILAR
RIGHTS.
SECTION 6.
Affirmative Covenants.
The Borrower hereby covenants and agrees
that until the Commitments have terminated, no Notes or Letters of Credit are
outstanding and the Loans, together with interest, Fees and all other
Obligations (other than any indemnities described in Section 11.13 which are not
then owing) incurred hereunder, are paid in full:
6.01
INFORMATION COVENANTS.
THE BORROWER WILL FURNISH TO EACH LENDER:
(A)
ANNUAL FINANCIAL STATEMENTS.
AS SOON AS AVAILABLE AND IN ANY
EVENT WITHIN 75 DAYS AFTER THE CLOSE OF EACH FISCAL YEAR OF THE BORROWER, THE
CONSOLIDATED AND CONSOLIDATING BALANCE SHEET OF THE BORROWER AND THE
INTERMEDIARY HOLDING COMPANIES, AS AT THE END OF SUCH FISCAL YEAR AND THE
RELATED CONSOLIDATED AND CONSOLIDATING STATEMENTS OF OPERATIONS AND OF CASH
FLOWS FOR SUCH FISCAL YEAR, AND IN EACH CASE SETTING FORTH COMPARATIVE
CONSOLIDATED AND CONSOLIDATING FIGURES FOR THE PRECEDING FISCAL YEAR, AND (X) IN
THE CASE OF CONSOLIDATED STATEMENTS, EXAMINED BY INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS OF RECOGNIZED NATIONAL STANDING WHOSE OPINION SHALL NOT BE QUALIFIED
AS TO THE SCOPE OF AUDIT AND AS TO THE STATUS OF THE BORROWER AS A GOING CONCERN
OR (Y) IN THE CASE OF CONSOLIDATING STATEMENTS, CERTIFIED BY THE CHIEF FINANCIAL
OFFICER OF THE BORROWER, TOGETHER WITH A CERTIFICATE OF SUCH ACCOUNTING FIRM
STATING THAT
46
IN THE COURSE OF ITS REGULAR AUDIT OF THE BUSINESS OF THE BORROWER AND THE
INTERMEDIARY HOLDING COMPANIES, WHICH AUDIT WAS CONDUCTED IN ACCORDANCE WITH
GENERALLY ACCEPTED AUDITING STANDARDS, NO DEFAULT OR EVENT OF DEFAULT WHICH HAS
OCCURRED AND IS CONTINUING HAS COME TO THEIR ATTENTION OR, IF SUCH A DEFAULT OR
EVENT OF DEFAULT HAS COME TO THEIR ATTENTION A STATEMENT AS TO THE NATURE
THEREOF.
IF THE BORROWER HAS DESIGNATED ANY UNRESTRICTED SUBSIDIARIES
HEREUNDER, THEN THE ANNUAL FINANCIAL INFORMATION REQUIRED BY THIS SECTION
6.01(A) SHALL INCLUDE A REASONABLY DETAILED PRESENTATION, EITHER ON THE FACE OF
THE FINANCIAL STATEMENTS OR IN THE FOOTNOTES THERETO, OF THE FINANCIAL CONDITION
AND RESULTS