LOAN ON THE OCCASION OF ANY BORROWING, AND
THE OBLIGATION OF AN ISSUING BANK TO ISSUE (OR RENEW OR EXTEND THE TERM OF) ANY
LETTER OF CREDIT, IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS:
(A)
RECEIPT BY THE ADMINISTRATIVE AGENT OF A NOTICE OF BORROWING AS
REQUIRED BY SECTION 2.02 OR 2.03, OR RECEIPT BY THE ISSUING BANK OF A NOTICE OF
ISSUANCE AS REQUIRED BY SECTION 2.15(B), AS THE CASE MAY BE;
(B)
THE FACT THAT, IMMEDIATELY AFTER SUCH BORROWING OR ISSUANCE, NO
DEFAULT SHALL EXIST; AND
(C)
THE FACT THAT THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER
CONTAINED IN THIS AGREEMENT SHALL BE TRUE IN ALL MATERIAL RESPECTS ON AND AS OF
THE DATE OF SUCH BORROWING OR ISSUANCE.
Each Borrowing and each issuance or extension of a Letter of Credit hereunder
shall be deemed to be a representation and warranty by the Borrower on the date
of such Borrowing or issuance as to the facts specified in the foregoing clauses
3.02(b) and 3.02(c).
34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01.
CORPORATE EXISTENCE AND POWER.
THE BORROWER AND EACH
SIGNIFICANT SUBSIDIARY IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF ITS INCORPORATION, HAS ALL POWER
AND AUTHORITY TO CARRY ON ITS BUSINESS AS NOW BEING CONDUCTED AND TO OWN ITS
PROPERTIES, AND IS DULY QUALIFIED AND IN GOOD STANDING AS A FOREIGN CORPORATION
IN EACH OTHER JURISDICTION IN WHICH THE FAILURE TO QUALIFY WOULD MATERIALLY AND
ADVERSELY AFFECT THE CONDUCT OF ITS BUSINESS OR THE ENFORCEABILITY OF ITS
CONTRACTUAL RIGHTS.
SECTION 4.02.
CORPORATE AUTHORIZATION.
THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE BORROWER OF THIS AGREEMENT AND THE NOTES ARE WITHIN THE
BORROWER'S CORPORATE POWER, HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
ACTION AND WILL NOT CONTRAVENE, OR CONSTITUTE A DEFAULT UNDER, ANY PROVISION OF
APPLICABLE LAW OR REGULATION OR OF THE RESTATED CERTIFICATE OF INCORPORATION OR
BY-LAWS OF THE BORROWER, OR OF ANY JUDGMENT, ORDER, DECREE, AGREEMENT OR
INSTRUMENT BINDING ON THE BORROWER OR RESULT IN THE CREATION OF ANY LIEN UPON
ANY OF ITS PROPERTY OR ASSETS.
SECTION 4.03.
BINDING EFFECT.
THIS AGREEMENT CONSTITUTES, AND THE
NOTES WHEN DULY EXECUTED ON BEHALF OF THE BORROWER AND DELIVERED IN ACCORDANCE
WITH THIS AGREEMENT WILL CONSTITUTE, THE VALID AND BINDING OBLIGATIONS OF THE
BORROWER, ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
SECTION 4.04.
FINANCIAL INFORMATION.
(A)
THE CONSOLIDATED BALANCE SHEET OF THE BORROWER AND ITS
CONSOLIDATED SUBSIDIARIES AS OF AUGUST 2, 2003 AND THE RELATED CONSOLIDATED
STATEMENTS OF OPERATIONS AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED, REPORTED
ON BY DELOITTE & TOUCHE AND SET FORTH IN THE BORROWER'S 2003 ANNUAL REPORT TO
SHAREHOLDERS AND INCORPORATED BY REFERENCE IN THE BORROWER'S 2003 10-K, A COPY
OF WHICH HAS BEEN DELIVERED TO EACH OF THE LENDERS, FAIRLY PRESENT, IN
CONFORMITY WITH UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, THE
CONSOLIDATED FINANCIAL POSITION OF THE BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES AS