OR INCLUDE INFORMATION
KNOWN TO BORROWER TO BE MISLEADING OR WHICH FAIL TO TAKE INTO ACCOUNT MATERIAL
INFORMATION REGARDING THE MATTERS REPORTED THEREIN.
ON THE CLOSING DATE,
BORROWER BELIEVES THAT THE PROJECTIONS ARE REASONABLE AND ATTAINABLE, IT BEING
UNDERSTOOD THAT UNCERTAINTY IS INHERENT IN ANY FORECASTS OR PROJECTIONS AND THAT
NO ASSURANCE CAN BE GIVEN THAT THE RESULTS SET FORTH IN THE PROJECTIONS WILL
ACTUALLY BE OBTAINED.
(G)
NO MATERIAL ADVERSE CHANGE.
AS OF THE CLOSING DATE AND AT ANY
TIME THEREAFTER, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE BUSINESS,
CONDITION (FINANCIAL OR OTHERWISE), ASSETS, LIABILITIES OR OPERATIONS OF
BORROWER AND ITS RESTRICTED SUBSIDIARIES TAKEN AS A WHOLE SINCE DECEMBER 31,
2003 BASED ON THE FINANCIAL STATEMENTS DELIVERED PURSUANT TO SECTION 6.5(A).
6.6
LITIGATION.
There are no actions, suits or proceedings pending or, to the best knowledge of
Borrower, threatened in writing against Borrower or any of its Subsidiaries (i)
with respect to any Loan Document seeking to enjoin Borrower's or any
Subsidiary's performance thereof or (ii) which would reasonably be expected to
have a Material Adverse Effect.
6.7
TRUE AND COMPLETE DISCLOSURE.
All factual information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of Borrower or any of its Subsidiaries in writing
(including electronically) to any Lender (other than the Projections as to which
Section 6.5(f) applies) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of Borrower or any of its
Subsidiaries in writing to any Lender for purposes of or in connection with this
Agreement or any transaction contemplated herein will be, true and accurate in
all
57
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such
information (taken as a whole) not misleading in any material respect at such
time in light of the circumstances under which such information was provided.
6.8
USE OF PROCEEDS; MARGIN REGULATIONS
(A)
ALL PROCEEDS OF THE TERM B LOANS INCURRED ON THE CLOSING DATE
SHALL BE USED BY BORROWER TO (I) REFINANCE THE OBLIGATIONS UNDER THE EXISTING
TERM CREDIT AGREEMENT, (II) REPAY THE EXISTING REVOLVING CREDIT AGREEMENT, AND
(III) TO PAY FEES AND EXPENSES IN CONNECTION WITH THE ISSUANCE OF THE TERM B
LOANS.
(B)
NO PART OF THE PROCEEDS OF ANY LOAN HAS BEEN OR WILL BE USED TO
PURCHASE OR CARRY ANY MARGIN STOCK (AS DEFINED IN REGULATION U OF THE BOARD),
DIRECTLY OR INDIRECTLY, OR TO EXTEND CREDIT FOR THE PURPOSE OF PURCHASING OR
CARRYING ANY SUCH MARGIN STOCK FOR THE PURPOSE OF REDUCING OR RETIRING ANY
INDEBTEDNESS WHICH WAS ORIGINALLY INCURRED TO PURCHASE OR CARRY ANY MARGIN
SECURITY OR FOR ANY OTHER PURPOSE WHICH MIGHT CAUSE ANY OF THE LOANS OR
EXTENSIONS OF CREDIT UNDER THIS AGREEMENT TO BE CONSIDERED A "PURPOSE CREDIT"
WITHIN THE MEANING OF REGULATION T,