ACTION BEING
TAKEN OR THREATENED BY ANY COMPETENT AUTHORITY THAT WOULD RESTRAIN, PREVENT OR
OTHERWISE IMPOSE ADVERSE CONDITIONS ON THE FINANCING CONTEMPLATED HEREBY.
(H)
THE LENDERS SHALL HAVE RECEIVED (A) AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE BORROWER FOR THE 2002 AND 2003 FISCAL YEARS, AND (B) UNAUDITED
INTERIM CONSOLIDATED FINANCIAL STATEMENTS OF THE BORROWER FOR EACH QUARTERLY
PERIOD ENDED SUBSEQUENT TO THE DATE OF THE LATEST APPLICABLE FINANCIAL
STATEMENTS DELIVERED PURSUANT TO CLAUSE (A) OF THIS PARAGRAPH AS TO WHICH SUCH
FINANCIAL STATEMENTS ARE AVAILABLE, AND SUCH FINANCIAL STATEMENTS SHALL NOT, IN
THE REASONABLE JUDGMENT OF THE LENDERS, REFLECT ANY MATERIAL ADVERSE CHANGE IN
THE CONSOLIDATED FINANCIAL CONDITION OF THE BORROWER, AS REFLECTED IN THE
FINANCIAL STATEMENTS OR PROJECTIONS CONTAINED IN THE CONFIDENTIAL INFORMATION
MEMORANDUM.
THE ADMINISTRATIVE AGENT SHALL NOTIFY THE BORROWER AND THE LENDERS OF THE
EFFECTIVE DATE, AND SUCH NOTICE SHALL BE CONCLUSIVE AND BINDING.
NOTWITHSTANDING THE FOREGOING, THE OBLIGATIONS OF THE LENDERS TO MAKE LOANS
HEREUNDER SHALL NOT BECOME EFFECTIVE UNLESS EACH OF THE FOREGOING CONDITIONS IS
SATISFIED (OR WAIVED PURSUANT TO SECTION 9.02) AT OR PRIOR TO 5:00 P.M., NEW
YORK CITY TIME, ON OCTOBER 8, 2004 (AND, IN THE EVENT SUCH CONDITIONS ARE NOT SO
SATISFIED OR WAIVED, THE COMMITMENTS SHALL TERMINATE AT SUCH TIME).
SECTION 4.02.
EACH CREDIT EVENT.
THE OBLIGATION OF EACH LENDER TO MAKE A LOAN
ON THE OCCASION OF ANY BORROWING (INCLUDING, WITHOUT LIMITATION, ITS INITIAL
LOAN) IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER SET FORTH IN THIS
AGREEMENT (WITH THE EXCEPTION OF THE REPRESENTATION AND WARRANTY CONTAINED IN
SECTION 3.04(B)) SHALL BE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH
BORROWING.
(B)
AT THE TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH BORROWING, NO
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
Each Borrowing, the conversion of the Revolving Loans into Term Loans pursuant
to Sections 2.04 and 2.05, and the increase of the aggregate Commitments
pursuant to Section 2.20, shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section, provided that (i) such conversion of the
Revolving Loans into Term Loans, and (ii) such increase of the aggregate
Commitments shall also be deemed to constitute a representation and warranty by
the Borrower that the matters specified in Section 3.04(b) are true and correct
on and as of the date thereof.
37
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01.
FINANCIAL STATEMENTS AND OTHER INFORMATION.
THE BORROWER WILL
FURNISH TO THE ADMINISTRATIVE AGENT AND EACH LENDER:
(A)
WITHIN 90 DAYS AFTER THE END OF EACH FISCAL YEAR OF THE BORROWER, THE
ANNUAL REPORT OF THE BORROWER ON FORM 10-K FILED BY THE