case applicable to
it or its Subsidiaries, that could reasonably be expected to have a Material
Adverse Effect.
3.17
ACCURACY OF INFORMATION, ETC.
NO STATEMENT OR
INFORMATION CONTAINED IN THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, THE
CONFIDENTIAL INFORMATION MEMORANDUM OR ANY OTHER DOCUMENT, CERTIFICATE OR
STATEMENT FURNISHED BY OR ON BEHALF OF ANY LOAN PARTY TO THE ADMINISTRATIVE
AGENT OR THE LENDERS, OR ANY OF THEM, FOR USE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, WHEN
TAKEN AS A WHOLE, CONTAINED AS OF THE DATE SUCH STATEMENT, INFORMATION, DOCUMENT
OR CERTIFICATE WAS SO FURNISHED (OR, IN THE CASE OF THE CONFIDENTIAL INFORMATION
MEMORANDUM, AS OF THE DATE OF THIS AGREEMENT), ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMITTED TO STATE A MATERIAL FACT NECESSARY TO MAKE THE
STATEMENTS CONTAINED HEREIN OR THEREIN NOT MISLEADING.
THE PROJECTIONS AND PRO
FORMA FINANCIAL INFORMATION CONTAINED IN THE MATERIALS REFERENCED ABOVE ARE
BASED UPON GOOD FAITH ESTIMATES AND ASSUMPTIONS BELIEVED BY MANAGEMENT OF THE
BORROWER TO BE REASONABLE AT THE TIME MADE, IT BEING RECOGNIZED BY THE LENDERS
THAT SUCH FINANCIAL INFORMATION AS IT RELATES TO FUTURE EVENTS IS NOT TO BE
VIEWED AS FACT AND THAT ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED BY
SUCH FINANCIAL INFORMATION MAY DIFFER FROM THE PROJECTED RESULTS SET FORTH
THEREIN BY A MATERIAL AMOUNT.
THERE IS NO FACT KNOWN TO ANY LOAN PARTY THAT
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT THAT HAS NOT BEEN
EXPRESSLY DISCLOSED HEREIN, IN THE OTHER LOAN DOCUMENTS, IN THE CONFIDENTIAL
INFORMATION MEMORANDUM OR IN ANY OTHER DOCUMENTS, CERTIFICATES AND STATEMENTS
FURNISHED TO THE ADMINISTRATIVE AGENT AND THE LENDERS FOR USE IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE OTHER LOAN DOCUMENTS.
3.18
SOLVENCY.
EACH LOAN PARTY IS, AND AFTER GIVING
EFFECT TO THE INCURRENCE OF ALL INDEBTEDNESS AND OBLIGATIONS BEING INCURRED IN
CONNECTION HEREWITH WILL BE AND WILL CONTINUE TO BE, SOLVENT.
SECTION 4.
CONDITIONS PRECEDENT
4.1
CONDITIONS TO INITIAL EXTENSION OF CREDIT.
THE AGREEMENT OF EACH LENDER TO MAKE THE INITIAL EXTENSION OF CREDIT REQUESTED
TO BE MADE BY IT IS SUBJECT TO THE SATISFACTION, PRIOR TO OR CONCURRENTLY WITH
THE MAKING OF SUCH EXTENSION OF CREDIT, OF THE FOLLOWING CONDITIONS PRECEDENT:
(a)
Credit Agreement; Guarantee Agreement.
The Administrative Agent shall have
received (i) this Agreement, executed and delivered by the Administrative Agent,
the Borrower and each Person listed on Schedule 1.1A and (ii) the Guarantee
Agreement, executed and delivered by each Subsidiary Guarantor, if any.
(b)
Financial Statements.
The Lenders shall have received the financial
statements referred to in Section 3.1, and such financial statements shall not,
in the reasonable judgment of the Lenders, reflect any material adverse change
in the consolidated financial condition of the Borrower and its Subsidiaries, as
reflected in the financial statements or projections contained in the
Confidential Information Memorandum.
(c)
Projections.
The Lenders shall have received projections of the Borrower
and its Subsidiaries through the fiscal year ending October 31,