with an original counterpart of a management prepared financial statement of the
Borrowers for the period from the beginning of the Borrowers' then current
fiscal year through the end of the subject quarter, with comparative information
for the same period of the previous fiscal year, which statement shall include,
at a minimum, a consolidated balance sheet, income statement (if requested, on a
company specific and on a "consolidating" basis), and cash flows and comparisons
for the corresponding quarter of the then immediately previous year, as well as
to the Business Plan.
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5.8
ANNUAL REPORTS.
(A)
ANNUALLY, WITHIN 90 DAYS FOLLOWING THE END OF THE BORROWERS' FISCAL YEAR,
THE LEAD BORROWER SHALL FURNISH THE AGENT WITH THE FOLLOWING:
(I)
BORROWERS' CONSOLIDATED ANNUAL FINANCIAL STATEMENT, WHICH
STATEMENT SHALL HAVE BEEN PREPARED BY, AND BEAR THE UNQUALIFIED OPINION OF, THE
BORROWERS' INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS (I.E. SAID STATEMENT SHALL
BE "CERTIFIED" BY SUCH ACCOUNTANTS) AND SHALL INCLUDE, AT A MINIMUM (WITH
COMPARATIVE INFORMATION FOR THE THEN PRIOR FISCAL YEAR) A BALANCE SHEET, INCOME
STATEMENT, STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY, AND CASH FLOWS; AND
(II)
THE OFFICER'S COMPLIANCE CERTIFICATE DESCRIBED IN SECTION 5.9.
(B)
EACH ANNUAL STATEMENT SHALL BE ACCOMPANIED BY SUCH ACCOUNTANT'S
CERTIFICATE INDICATING THAT, IN CONDUCTING THE AUDIT FOR SUCH ANNUAL STATEMENT,
NOTHING CAME TO THE ATTENTION OF SUCH ACCOUNTANTS TO BELIEVE THAT ANY SUSPENSION
EVENT RELATING TO THE FINANCIAL PERFORMANCE COVENANTS IMPOSED PURSUANT TO
SECTION 5.12 HAD OCCURRED DURING THE SUBJECT FISCAL YEAR (OR IF ONE OR MORE HAD
OCCURRED, THE FACTS AND CIRCUMSTANCES THEREOF).
5.9
OFFICERS' CERTIFICATES.
(A)
THE LEAD BORROWER SHALL CAUSE ITS AUTHORIZED OFFICER TO CERTIFY, IN THE
FORM ATTACHED HERETO AS EXHIBIT 5.9 (THE "OFFICER'S COMPLIANCE CERTIFICATE") IN
CONNECTION WITH THOSE MONTHLY AND ANNUAL STATEMENTS TO BE FURNISHED PURSUANT TO
THIS AGREEMENT THAT:
(I)
SUCH STATEMENT WAS PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY
APPLIED AND PRESENTS FAIRLY AND IN ALL MATERAL RESPECTS THE FINANCIAL CONDITION
OF THE BORROWERS AT THE CLOSE OF, AND THE RESULTS OF THE BORROWERS' OPERATIONS
AND CASH FLOWS FOR, THE PERIOD(S) COVERED, SUBJECT, HOWEVER TO THE FOLLOWING:
(A)
USUAL YEAR END ADJUSTMENTS (THIS EXCEPTION SHALL NOT BE INCLUDED IN
THE CERTIFICATE WHICH ACCOMPANIES SUCH ANNUAL STATEMENT).
(B)
MATERIAL ACCOUNTING CHANGES (IN WHICH EVENT, SUCH CERTIFICATE
SHALL INCLUDE A SCHEDULE (IN REASONABLE DETAIL) OF THE EFFECT OF EACH SUCH
MATERIAL ACCOUNTING CHANGE) NOT PREVIOUSLY SPECIFICALLY TAKEN INTO ACCOUNT IN
THE DETERMINATION OF THE FINANCIAL PERFORMANCE COVENANT IMPOSED PURSUANT TO
SECTION 5.12.
(II)
NO SUSPENSION EVENT OR EVENT OF DEFAULT HAS OCCURRED WHICH IS
CONTINUING, OR IF SUCH EVENT HAS OCCURRED, ITS NATURE (IN REASONABLE
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DETAIL) AND THE STEPS (IF ANY) BEING TAKEN OR CONTEMPLATED BY THE BORROWERS TO
BE TAKEN ON ACCOUNT THEREOF.
(III)
THE BORROWERS WERE IN COMPLIANCE (OR HAD FAILED TO COMPLY) AS OF
THE DATE OF THE APPLICABLE STATEMENT WITH EACH OF THE FINANCIAL PERFORMANCE
COVENANTS INCLUDED IN SECTION 5.12 HEREOF; SUCH CERTIFICATION TO BE ACCOMPANIED
BY CALCULATIONS DEMONSTRATING SUCH COMPLIANCE OR FAILURE TO COMPLY.
5.10