OTHER LOAN
DOCUMENTS SHALL CONSTITUTE (A) A WARRANTY AND REPRESENTATION BY BORROWER TO
LENDER THAT THERE DOES NOT THEN EXIST A DEFAULT OR AN EVENT OF DEFAULT, EXCEPT
AS OTHERWISE DISCLOSED IN WRITING BY BORROWER TO LENDER, AND (B) A REAFFIRMATION
AS OF THE DATE OF SAID REQUEST OF THE REPRESENTATIONS AND WARRANTIES OF BORROWER
CONTAINED IN SECTIONS 4.1 THROUGH AND INCLUDING 4.28.
ALL REPRESENTATIONS AND
WARRANTIES OF BORROWER CONTAINED IN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL SURVIVE THE EXECUTION, DELIVERY AND ACCEPTANCE THEREOF BY THE PARTIES
THERETO AND THE CLOSING OF THE TRANSACTIONS DESCRIBED THEREIN OR RELATED
THERETO.
References in this Article 4 to the "actual knowledge" of Borrower shall refer
only to the actual knowledge of an Authorized Person of Borrower and shall not
be construed to the knowledge of any other officer, agent or employee of
Borrower or any Affiliate thereof, or to impose upon any Authorized Person of
Borrower any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains.
37
5.
AFFIRMATIVE COVENANTS
Borrower will at all times comply with the covenants contained in this
Article 5, from the date hereof and for so long as any part of the Obligations
is outstanding.
5.1
FINANCIAL STATEMENTS AND REPORTS AND OTHER DATA.
BORROWER WILL
PROMPTLY FURNISH TO LENDER FROM TIME TO TIME UPON REQUEST SUCH INFORMATION
REGARDING THE BUSINESS AFFAIRS AND FINANCIAL CONDITION OF BORROWER AS LENDER MAY
REASONABLY REQUEST, WHICH INFORMATION SHALL BE CERTIFIED BY THE TREASURER OF
BORROWER TO BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE
PROVIDED.
THE INFORMATION THAT MAY BE REQUESTED BY LENDER INCLUDES THE
FOLLOWING REPORTS:
(A)
ANNUAL REPORTS.
(I)
PROMPTLY AFTER BECOMING AVAILABLE AND IN ANY EVENT WITHIN 90 DAYS
AFTER THE CLOSE OF EACH FISCAL YEAR OF BORROWER, BORROWER SHALL PROVIDE TO
LENDER AUDITED FISCAL YEAR END FINANCIAL STATEMENTS OF BORROWER AND ITS
CONSOLIDATED SUBSIDIARIES, PREPARED ON A CONSOLIDATED BASIS WITH SUPPORTING
CONSOLIDATING SCHEDULES BY KPMG, LLP, OR OTHER INDEPENDENT PUBLIC ACCOUNTANTS
SELECTED BY BORROWER AND REASONABLY ACCEPTABLE TO LENDER (THE "ACCOUNTANT"),
SHOWING THE BALANCE SHEET AS AT THE END OF SUCH YEAR, THE INCOME STATEMENT FOR
SUCH YEAR, AND THE STATEMENT OF CASH FLOWS FOR SUCH YEAR, SETTING FORTH IN EACH
CASE IN COMPARATIVE FORM (FOR PERIODS FOR WHICH AVAILABLE) THE CORRESPONDING
FIGURES FOR THE PRECEDING FISCAL YEAR, ACCOMPANIED BY THE RELATED REPORT OF THE
ACCOUNTANT, WHICH REPORT SHALL BE TO THE EFFECT THAT SUCH STATEMENTS HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY FOLLOWED THROUGHOUT THE PERIOD
INDICATED EXCEPT FOR SUCH CHANGES IN SUCH PRINCIPLES WITH WHICH THE ACCOUNTANT
SHALL HAVE CONCURRED ALONG WITH A CERTIFICATE CERTIFYING TO LENDER THAT, BASED
UPON ACCOUNTANT'S EXAMINATION OF THE AFFAIRS OF BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES PERFORMED IN CONNECTION WITH THE PREPARATION OF SAID STATEMENTS,
ACCOUNTANT IS NOT AWARE OF THE EXISTENCE OF ANY CONDITION OR EVENT WHICH
CONSTITUTES OR WOULD, UPON NOTICE OR LAPSE OF TIME OR BOTH, CONSTITUTE AN EVENT
OF DEFAULT UNDER SECTION 7.1(C)