(A)
THE SECURITY AGREEMENT, UPON EXECUTION AND DELIVERY THEREOF BY THE
PARTIES THERETO, WILL CREATE IN FAVOR OF THE ADMINISTRATIVE AGENT, FOR THE
RATABLE BENEFIT OF THE LENDERS, A LEGAL, VALID AND ENFORCEABLE SECURITY INTEREST
IN THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) AND THE PROCEEDS
THEREOF, IN WHICH A SECURITY INTEREST MAY BE PERFECTED UNDER THE NEW YORK
UNIFORM COMMERCIAL CODE AS IN EFFECT AT THE RELEVANT TIME BY FILING OF FINANCING
STATEMENTS OR OBTAINING CONTROL OR POSSESSION, AND THE LIEN CREATED UNDER THE
SECURITY AGREEMENT IS (OR WILL BE, UPON THE FILING OF APPROPRIATE FINANCING
STATEMENTS AND GRANTS OF SECURITY IN INTELLECTUAL PROPERTY, THE EXECUTION OF
APPROPRIATE CONTROL AGREEMENTS AND DELIVERY OF CERTIFICATED SECURITIES AND
INSTRUMENTS TO THE ADMINISTRATIVE AGENT) A FULLY PERFECTED LIEN ON, AND SECURITY
INTEREST IN, ALL RIGHT, TITLE AND INTEREST OF THE LOAN PARTIES IN SUCH
COLLATERAL), IN EACH CASE PRIOR AND SUPERIOR IN RIGHT TO ANY OTHER PERSON, OTHER
THAN WITH RESPECT TO LIENS PERMITTED BY SECTION 7.2.
(B)
AS OF THE CLOSING DATE, NEITHER THE BORROWER NOR ANY SUBSIDIARY
OWNS IN FEE ANY REAL PROPERTY.
(C)
SCHEDULE 4.20 LISTS COMPLETELY AND CORRECTLY AS OF THE CLOSING
DATE ALL REAL PROPERTY LEASED BY THE BORROWER AND THE SUBSIDIARIES AND THE
ADDRESSES THEREOF. AS OF THE CLOSING DATE, THE BORROWER AND THE SUBSIDIARIES
HAVE VALID LEASES IN ALL THE REAL PROPERTY SET FORTH ON SCHEDULE 4.20.
ARTICLE 5
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a Commitment
hereunder or any Obligation remains unpaid or outstanding:
SECTION 5.1.
FINANCIAL STATEMENTS AND OTHER
INFORMATION. THE BORROWER WILL DELIVER TO THE ADMINISTRATIVE AGENT AND EACH
LENDER:
(A)
AS SOON AS AVAILABLE AND IN ANY EVENT WITHIN 120 DAYS AFTER THE
END OF EACH FISCAL YEAR OF BORROWER, A COPY OF THE ANNUAL AUDITED REPORT FOR
SUCH FISCAL YEAR FOR THE BORROWER AND ITS SUBSIDIARIES, CONTAINING A
CONSOLIDATED BALANCE SHEET OF THE BORROWER AND ITS SUBSIDIARIES AS OF THE END OF
SUCH FISCAL YEAR AND THE RELATED CONSOLIDATED STATEMENTS OF INCOME,
STOCKHOLDERS' EQUITY AND CASH FLOWS (TOGETHER WITH ALL FOOTNOTES THERETO) OF THE
BORROWER AND ITS SUBSIDIARIES FOR SUCH FISCAL YEAR, SETTING FORTH IN EACH CASE
IN COMPARATIVE FORM THE FIGURES FOR THE PREVIOUS FISCAL YEAR, ALL IN REASONABLE
DETAIL AND REPORTED ON BY DELOITTE & TOUCHE LLP OR OTHER INDEPENDENT PUBLIC
ACCOUNTANTS OF NATIONALLY RECOGNIZED STANDING (WITHOUT A "GOING CONCERN" OR LIKE
QUALIFICATION, EXCEPTION OR EXPLANATION AND WITHOUT ANY QUALIFICATION OR
EXCEPTION AS TO SCOPE OF SUCH AUDIT, EXCEPT FOR ANY QUALIFICATION TO THE EFFECT
THAT SUCH ACCOUNTANTS DID NOT AUDIT THE FINANCIAL STATEMENTS OF ANY TARGET OF A
PERMITTED ACQUISITION FOR ANY FISCAL YEAR PRIOR TO ACQUISITION OF THE TARGET OF
A PERMITTED ACQUISITION BY THE BORROWER OR ANY SUBSIDIARY) TO THE EFFECT THAT
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY IN ALL MATERIAL RESPECTS THE FINANCIAL
CONDITION AND THE RESULTS OF OPERATIONS OF THE BORROWER AND ITS SUBSIDIARIES FOR
SUCH
56
FISCAL YEAR ON A CONSOLIDATED AND CONSOLIDATING