OFFICER OR OTHER OFFICER ACCEPTABLE TO AGENT; PROVIDED THAT THE EXCESS CASH FLOW
PORTION OF SUCH CERTIFICATE IS ONLY REQUIRED TO BE DELIVERED ANNUALLY.
4.6
ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT, ALL ACCOUNTING TERMS NOT
OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN
CONFORMITY WITH GAAP.
FINANCIAL STATEMENTS AND OTHER INFORMATION FURNISHED TO
AGENT PURSUANT TO SECTION 4.5 OR ANY OTHER SECTION (UNLESS SPECIFICALLY
INDICATED OTHERWISE) SHALL BE PREPARED IN ACCORDANCE WITH GAAP AS IN EFFECT AT
THE TIME OF SUCH PREPARATION; PROVIDED THAT TO THE EXTENT AN ACCOUNTING CHANGE
RESULTS IN A MATERIAL CHANGE IN THE METHOD OF ACCOUNTING IN THE FINANCIAL
STATEMENTS REQUIRED TO BE FURNISHED TO AGENT HEREUNDER OR IN THE CALCULATION OF
FINANCIAL COVENANTS, STANDARDS OR TERMS CONTAINED IN THIS AGREEMENT, THE PARTIES
HERETO AGREE TO ENTER INTO GOOD FAITH NEGOTIATIONS TO AMEND SUCH PROVISIONS SO
AS EQUITABLY TO REFLECT SUCH CHANGES TO THE END THAT THE CRITERIA FOR EVALUATING
THE FINANCIAL CONDITION AND PERFORMANCE OF THE CREDIT PARTIES WILL BE THE SAME
AFTER SUCH CHANGES AS THEY WERE BEFORE SUCH CHANGES; AND IF THE PARTIES FAIL TO
AGREE ON THE AMENDMENT OF SUCH PROVISIONS, BORROWER WILL FURNISH FINANCIAL
STATEMENTS IN ACCORDANCE WITH SUCH CHANGES BUT SHALL PROVIDE CALCULATIONS FOR
ALL FINANCIAL COVENANTS, PERFORM ALL FINANCIAL COVENANTS AND OTHERWISE OBSERVE
ALL FINANCIAL STANDARDS AND TERMS IN ACCORDANCE WITH APPLICABLE ACCOUNTING
PRINCIPLES AND PRACTICES IN EFFECT IMMEDIATELY PRIOR TO SUCH CHANGES; PROVIDED
FURTHER THAT BORROWER SHALL PREPARE FOOTNOTES TO THE FINANCIAL STATEMENTS
REQUIRED TO BE DELIVERED HEREUNDER THAT SHOW THE DIFFERENCES BETWEEN THE
FINANCIAL STATEMENTS DELIVERED (WHICH REFLECT SUCH ACCOUNTING CHANGES) AND THE
BASIS FOR CALCULATING FINANCIAL COVENANT COMPLIANCE (WITHOUT REFLECTING SUCH
ACCOUNTING CHANGES).
ALL SUCH ADJUSTMENTS DESCRIBED IN CLAUSE (C) OF THE
DEFINITION OF THE TERM ACCOUNTING CHANGES RESULTING FROM EXPENDITURES MADE
SUBSEQUENT TO THE CLOSING DATE (INCLUDING CAPITALIZATION OF COSTS AND EXPENSES
OR PAYMENT OF PRE-CLOSING DATE LIABILITIES) SHALL BE TREATED AS EXPENSES IN THE
PERIOD THE EXPENDITURES ARE MADE.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into the Loan Documents, to make Loans and
to issue or cause to be issued Letters of Credit, Holdings and Borrower, jointly
and severally,
43
represent, warrant and covenant to Agent and each Lender that the following
statements are and, after giving effect to the Related Transactions, will remain
true, correct and complete until the Termination Date:
5.1
DISCLOSURE.
TO THE KNOWLEDGE OF ANY RESPONSIBLE OFFICER OF
HOLDINGS OR BORROWER, NO REPRESENTATION OR WARRANTY OF ANY CREDIT PARTY
CONTAINED IN THIS AGREEMENT, THE FINANCIAL STATEMENTS REFERRED TO IN SECTION
5.5, THE OTHER RELATED TRANSACTIONS DOCUMENTS OR ANY OTHER DOCUMENT, CERTIFICATE
OR WRITTEN STATEMENT FURNISHED TO AGENT OR ANY LENDER BY OR ON BEHALF OF ANY
SUCH PERSON FOR USE IN CONNECTION WITH THE LOAN DOCUMENTS OR THE RELATED
TRANSACTIONS DOCUMENTS WHEN TAKEN AS A WHOLE CONTAINS ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMITTED OR OMITS TO