DATE OF THE AUDITED FINANCIAL STATEMENTS REFERRED TO IN SECTION 3.04 AND, IF ANY
SUCH CHANGE HAS OCCURRED, SPECIFYING THE EFFECT OF SUCH CHANGE ON THE FINANCIAL
STATEMENTS ACCOMPANYING SUCH CERTIFICATE AND (IV) CERTIFYING ANY RECONCILIATION
OF THE BORROWER'S GAAP LIABILITIES WITH ITS TOTAL INDEBTEDNESS DETAILING THE
EXCLUSIONS, TOGETHER WITH A NARRATIVE DESCRIPTION OF THE RATIONALE FOR TREATING
SUCH ITEMS AS EXCLUDED LIABILITIES, TO THE EXTENT ANY EXCLUDED LIABILITIES
CONSTITUTE A DIFFERENCE BETWEEN THE BORROWER'S LIABILITIES ACCORDING TO GAAP AND
THE BORROWER'S TOTAL INDEBTEDNESS USED TO CALCULATE THE RATIO OF TOTAL
INDEBTEDNESS TO CONSOLIDATED TANGIBLE NET WORTH;
(D)
TO THE EXTENT NOT PUBLICLY AVAILABLE, COPIES OF ALL PERIODIC AND
OTHER REPORTS, PROXY STATEMENTS AND OTHER MATERIALS FILED BY THE BORROWER OR ANY
SUBSIDIARY WITH THE SEC OR THE NYSE, ANY OTHER NATIONAL SECURITIES EXCHANGE, ANY
COMMODITIES
34
EXCHANGE OR ANY SELF-REGULATORY ORGANIZATION, OR DISTRIBUTED BY THE BORROWER TO
ITS SHAREHOLDERS GENERALLY, AS THE CASE MAY BE; AND
(E)
PROMPTLY FOLLOWING ANY REQUEST THEREFOR, SUCH OTHER INFORMATION
THAT IS REGULARLY PREPARED BY THE BORROWER REGARDING THE OPERATIONS, BUSINESS
AFFAIRS AND FINANCIAL CONDITION OF THE BORROWER OR ANY SUBSIDIARY, OR COMPLIANCE
WITH THE TERMS OF THIS AGREEMENT, AS THE ADMINISTRATIVE AGENT OR ANY LENDER MAY
REASONABLY REQUEST.
SECTION 5.02.
NOTICES OF MATERIAL EVENTS.
THE BORROWER WILL FURNISH TO THE
ADMINISTRATIVE AGENT AND EACH LENDER PROMPT WRITTEN NOTICE OF THE FOLLOWING:
(A)
THE OCCURRENCE OF ANY DEFAULT;
(B)
THE FILING OR COMMENCEMENT OF ANY ACTION, SUIT OR PROCEEDING BY OR
BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY AGAINST OR AFFECTING THE
BORROWER OR ANY AFFILIATE THEREOF THAT, IF ADVERSELY DETERMINED, COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT;
(C)
(I) ANY FAILURE TO COMPLY WITH ANY ENVIRONMENTAL LAW OR TO OBTAIN,
MAINTAIN OR COMPLY WITH ANY PERMIT, LICENSE OR OTHER APPROVAL REQUIRED UNDER ANY
ENVIRONMENTAL LAW, (II) ANY ENVIRONMENTAL LIABILITY, (III) A NOTICE OF ANY CLAIM
WITH RESPECT TO ANY ENVIRONMENTAL LIABILITY OR (IV) KNOWLEDGE OF ANY BASIS FOR
ANY ENVIRONMENTAL LIABILITY, IN EACH CASE, THAT, INDIVIDUALLY, OR IN THE
AGGREGATE, COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT;
(D)
THE OCCURRENCE OF ANY ERISA EVENT THAT, ALONE OR TOGETHER WITH ANY
OTHER ERISA EVENTS THAT HAVE OCCURRED, COULD REASONABLY BE EXPECTED TO RESULT IN
LIABILITY OF THE BORROWER AND ITS SUBSIDIARIES IN AN AGGREGATE AMOUNT EXCEEDING
$5,000,000; AND
(E)
ANY OTHER DEVELOPMENT THAT RESULTS IN, OR COULD REASONABLY BE
EXPECTED TO RESULT IN, A MATERIAL ADVERSE EFFECT.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03.
EXISTENCE; CONDUCT OF BUSINESS.
THE BORROWER WILL, AND WILL
CAUSE EACH OF ITS SUBSIDIARIES TO, DO OR CAUSE TO BE DONE ALL THINGS NECESSARY
TO PRESERVE, RENEW AND KEEP IN FULL FORCE AND EFFECT ITS LEGAL EXISTENCE AND THE
RIGHTS,