OF ANY BORROWING, AND OF ANY ISSUING BANK TO ISSUE, AMEND, RENEW
OR EXTEND ANY LETTER OF CREDIT, IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING
CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWERS SET FORTH IN THIS
AGREEMENT SHALL BE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH BORROWING OR
THE DATE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION OF SUCH LETTER OF CREDIT,
AS APPLICABLE, EXCEPT TO THE EXTENT THAT ANY REPRESENTATION OR WARRANTY
EXPRESSLY RELATES TO AN EARLIER DATE (IN WHICH CASE SUCH REPRESENTATION OR
WARRANTY SHALL RELATE TO SUCH EARLIER DATE).
(B)
AT THE TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH BORROWING OR THE
ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION OF SUCH LETTER OF CREDIT, AS
APPLICABLE, NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
(C)
NO LAW OR REGULATION SHALL PROHIBIT, AND NO ORDER, JUDGMENT OR DECREE OF
ANY GOVERNMENTAL AUTHORITY SHALL ENJOIN, PROHIBIT OR RESTRAIN, ANY LENDER FROM
MAKING THE REQUESTED LOAN OR THE RELEVANT ISSUING BANK OR ANY LENDER FROM
ISSUING, RENEWING, EXTENDING OR INCREASING THE FACE AMOUNT OF OR PARTICIPATING
IN THE LETTER OF CREDIT REQUESTED TO BE ISSUED, RENEWED, EXTENDED OR INCREASED.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
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 and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 5.01.
FINANCIAL STATEMENTS AND OTHER INFORMATION.
THE COMPANY WILL
FURNISH TO THE ADMINISTRATIVE AGENT AND EACH LENDER:
(A)
WITHIN NINETY (90) DAYS AFTER THE END OF EACH FISCAL YEAR OF THE COMPANY,
ITS AUDITED CONSOLIDATED BALANCE SHEET AND RELATED STATEMENTS OF OPERATIONS,
STOCKHOLDERS' EQUITY AND CASH FLOWS AS OF THE END OF AND FOR SUCH YEAR, SETTING
FORTH IN EACH CASE IN COMPARATIVE FORM THE FIGURES FOR THE PREVIOUS FISCAL YEAR,
ALL REPORTED ON BY ERNST & YOUNG LLP OR OTHER INDEPENDENT PUBLIC ACCOUNTANTS OF
RECOGNIZED NATIONAL STANDING (WITHOUT A "GOING CONCERN" OR LIKE QUALIFICATION OR
EXCEPTION AND WITHOUT ANY QUALIFICATION OR EXCEPTION AS TO THE SCOPE OF SUCH
AUDIT) TO THE EFFECT THAT SUCH CONSOLIDATED FINANCIAL STATEMENTS PRESENT FAIRLY
IN ALL MATERIAL RESPECTS THE FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF
THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES ON A CONSOLIDATED BASIS IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED;
(B)
WITHIN FORTY-FIVE (45) DAYS AFTER THE END OF EACH OF THE FIRST THREE FISCAL
QUARTERS OF EACH FISCAL YEAR OF THE COMPANY, ITS CONSOLIDATED BALANCE SHEET AND
RELATED STATEMENTS OF
49
OPERATIONS, STOCKHOLDERS' EQUITY AND CASH FLOWS AS OF THE END OF AND FOR SUCH
FISCAL QUARTER AND THE THEN ELAPSED PORTION