WHICH SHALL GO OUT AT LEAST THROUGH THE END OF THE THEN NEXT FISCAL YEAR AND
SHALL INCLUDE A CONSOLIDATED INCOME STATEMENT, BALANCE SHEET, AND STATEMENT OF
CASH FLOW, BY MONTH, AND SHALL INCLUDE ASSUMPTIONS AS ARE REASONABLY
SATISFACTORY TO THE TERM AGENT, EACH PREPARED IN CONFORMITY WITH GAAP AND
CONSISTENT WITH THE BORROWERS' THEN CURRENT PRACTICES.
(D)
THE TERM ADMINISTRATIVE AGENT, FOLLOWING THE RECEIPT OF ANY OF SUCH
FORECAST, MAY, BUT SHALL NOT BE UNDER ANY OBLIGATION TO, ACCEPT IN WRITING SUCH
FORECAST (IN WHICH EVENT, SUCH FORECAST SHALL BECOME THE BUSINESS PLAN).
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(E)
PROMPTLY AFTER THE SENDING OR FILING THEREOF, AS THE CASE MAY BE, THE
OBLIGORS SHALL DELIVER TO THE TERM ADMINISTRATIVE AGENT COPIES OF ANY PROXY
STATEMENTS, FINANCIAL STATEMENTS OR REPORTS WHICH OBLIGORS HAVE SENT TO
SHAREHOLDERS QUA SHAREHOLDERS AND COPIES OF ANY REGULAR, PERIODIC AND SPECIAL
REPORTS OR REGISTRATION STATEMENTS WHICH OBLIGORS FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION OF ANY GOVERNMENTAL AUTHORITY WHICH MAY BE SUBSTITUTED
THEREFORE, OR ANY NATIONAL SECURITIES EXCHANGE.
(F)
THE OBLIGORS RECOGNIZE THAT ALL APPRAISALS, INVENTORIES, ANALYSIS,
FINANCIAL INFORMATION, AND OTHER MATERIALS WHICH THE TERM AGENT MAY OBTAIN,
DEVELOP, OR RECEIVE WITH RESPECT TO THE OBLIGORS IS CONFIDENTIAL TO THE TERM
AGENT AND THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, THE OBLIGORS ARE NOT
ENTITLED TO RECEIPT OF ANY OF SUCH APPRAISALS, INVENTORIES, ANALYSIS, FINANCIAL
INFORMATION, AND OTHER MATERIALS, NOR COPIES OR EXTRACTS THEREOF OR THEREFROM.
5.10
FINANCIAL PERFORMANCE COVENANTS.
The Borrowers shall observe and comply with those financial performance
covenants set forth on EXHIBIT 5.10 (a) certain of which covenants are based on
the Business Plan set forth on EXHIBIT 5.10 (b).
Compliance with such financial
performance covenants shall be made as if no Material Accounting Changes had
been made (other than any Material Accounting Changes specifically taken into
account in the setting of such covenants).
The Term Administrative Agent may
determine the Borrowers' compliance with such covenants based upon financial
reports and statements provided by the Lead Borrower to the Term Administrative
Agent (whether or not such financial reports and statements are required to be
furnished pursuant to this Agreement) as well as by reference to interim
financial information provided to, or developed by, the Term Administrative
Agent.
ARTICLE VI. - USE AND COLLECTION OF COLLATERAL:
6.1
USE OF INVENTORY COLLATERAL.
(A)
THE BORROWERS SHALL NOT ENGAGE IN ANY SALE OF THE INVENTORY OTHER THAN FOR
FAIR CONSIDERATION IN THE CONDUCT OF THE BORROWERS' BUSINESS IN THE ORDINARY
COURSE AND SHALL NOT ENGAGE IN SALES OR OTHER DISPOSITIONS TO CREDITORS, SALES
OR OTHER DISPOSITIONS IN BULK, OR ANY USE OF ANY OF THE INVENTORY IN BREACH OF
ANY PROVISION OF THIS AGREEMENT.
(B)
NO SALE OF INVENTORY SHALL BE ON CONSIGNMENT, APPROVAL, OR UNDER ANY OTHER
CIRCUMSTANCES SUCH THAT, WITH THE EXCEPTION OF THE BORROWERS' CUSTOMARY RETURN
POLICY APPLICABLE TO THE RETURN OF INVENTORY PURCHASED BY THE BORROWERS' RETAIL
CUSTOMERS IN THE ORDINARY COURSE, SUCH INVENTORY MAY BE RETURNED TO THE
BORROWERS WITHOUT THE CONSENT OF THE