SHALL HAVE BEEN INSTITUTED, THREATENED OR PROPOSED
BEFORE ANY GOVERNMENTAL AUTHORITY TO ENJOIN, RESTRAIN, OR PROHIBIT, OR TO OBTAIN
SUBSTANTIAL DAMAGES IN RESPECT OF, OR WHICH IS RELATED TO OR ARISES OUT OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, OR WHICH, IN THE ADMINISTRATIVE AGENT'S SOLE
DISCRETION, WOULD MAKE IT INADVISABLE TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(E)
FINANCIAL MATTERS.
(I)
FINANCIAL STATEMENTS.
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED (A) THE AUDITED CONSOLIDATED BALANCE SHEET OF THE BORROWER AND ITS
SUBSIDIARIES AS OF SEPTEMBER 30, 2005 AND THE RELATED AUDITED STATEMENTS OF
INCOME AND RETAINED EARNINGS AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED AND
(B) UNAUDITED CONSOLIDATED BALANCE SHEETS OF THE BORROWER AND ITS SUBSIDIARIES
AND RELATED UNAUDITED INTERIM STATEMENTS OF INCOME AND RETAINED EARNINGS FOR
EACH FISCAL QUARTER ENDED AFTER THE MOST RECENT AUDITED FINANCIAL STATEMENTS
DELIVERED PURSUANT TO CLAUSE (A) ABOVE AND MORE THAN FORTY-FIVE (45) DAYS PRIOR
TO THE DATE HEREOF.
(II)
FINANCIAL PROJECTIONS.
PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS FOR THE BORROWER AND ITS SUBSIDIARIES, AND FORECASTS PREPARED BY
MANAGEMENT OF THE BORROWER, OF BALANCE SHEETS, INCOME STATEMENTS AND CASH FLOW
STATEMENTS ON A QUARTERLY BASIS FOR THE FIRST YEAR FOLLOWING THE CLOSING DATE
AND ON AN ANNUAL BASIS FOR EACH YEAR THEREAFTER DURING THE TERM OF THE CREDIT
FACILITY.
(III)
PAYMENT AT CLOSING; FEE LETTERS. THE BORROWER SHALL HAVE PAID TO
THE ADMINISTRATIVE AGENT AND THE LENDERS THE FEES SET FORTH OR REFERENCED IN
SECTION 4.3 AND ANY OTHER ACCRUED AND UNPAID FEES OR COMMISSIONS DUE HEREUNDER
(INCLUDING, WITHOUT LIMITATION, LEGAL
47
FEES AND EXPENSES) AND TO ANY OTHER PERSON SUCH AMOUNT AS MAY BE DUE THERETO IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ALL TAXES, FEES
AND OTHER CHARGES IN CONNECTION WITH THE EXECUTION, DELIVERY, RECORDING, FILING
AND REGISTRATION OF ANY OF THE LOAN DOCUMENTS.
(F)
NOTICE OF BORROWING.
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED A NOTICE OF BORROWING FROM THE BORROWER IN ACCORDANCE WITH SECTION
2.3(A) WITH RESPECT TO ANY AMOUNTS TO BE BORROWED ON THE CLOSING DATE, AND A
NOTICE OF ACCOUNT DESIGNATION SPECIFYING THE ACCOUNT OR ACCOUNTS TO WHICH THE
PROCEEDS OF ANY LOANS MADE AFTER THE CLOSING DATE ARE TO BE DISBURSED.
SECTION 5.3
Conditions to All Extensions of Credit.
The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:
(A)
CONTINUATION OF REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VI SHALL BE TRUE AND CORRECT
ON AND AS OF SUCH BORROWING, CONTINUATION, CONVERSION, ISSUANCE OR EXTENSION
DATE WITH THE SAME EFFECT AS IF MADE ON AND AS OF SUCH DATE, EXCEPT