ANY OTHER PARTY TO THE MOARK ACQUISITION DOCUMENTS,
OR RESULT IN A BREACH OF, OR CONSTITUTE A DEFAULT UNDER, ANY MATERIAL AGREEMENT,
INDENTURE, INSTRUMENT OR OTHER DOCUMENT, OR ANY JUDGMENT, ORDER OR DECREE, TO
WHICH ANY BORROWER IS A PARTY OR BY WHICH ANY BORROWER IS BOUND OR, TO THE
BORROWERS' KNOWLEDGE, TO WHICH ANY OTHER PARTY TO THE MOARK ACQUISITION
DOCUMENTS IS A PARTY OR BY WHICH ANY SUCH PARTY IS BOUND.
(E)
NO STATEMENT OR REPRESENTATION MADE IN THE
MOARK ACQUISITION DOCUMENTS BY ANY BORROWER OR, TO THE BORROWERS' KNOWLEDGE, ANY
OTHER PERSON, CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO STATE
ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE
THE STATEMENTS MADE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY ARE
MADE, NOT MISLEADING.
SECTION 4.25
SUBORDINATED DEBT.
THE
SUBORDINATION PROVISIONS OF THE SUBORDINATED PROMISSORY NOTE AND THE
SUBORDINATION AGREEMENT ARE ENFORCEABLE AGAINST THE HOLDERS OF THE SUBORDINATED
PROMISSORY NOTE BY THE ADMINISTRATIVE AGENT AND THE LENDERS.
ALL OBLIGATIONS
CONSTITUTE SENIOR DEBT ENTITLED TO THE BENEFITS OF THE SUBORDINATION PROVISIONS
CONTAINED IN THE SUBORDINATED PROMISSORY NOTE AND THE SUBORDINATION AGREEMENT.
THE BORROWERS ACKNOWLEDGE THAT THE ADMINISTRATIVE AGENT AND EACH LENDER ARE
ENTERING INTO THIS AGREEMENT AND ARE EXTENDING THE COMMITMENTS AND MAKING THE
LOANS IN RELIANCE UPON THE SUBORDINATION PROVISIONS OF THE SUBORDINATED
PROMISSORY NOTE, THE SUBORDINATION AGREEMENT AND THIS SECTION 4.25.
ARTICLE V
AFFIRMATIVE COVENANTS
Until any obligation of the Lenders hereunder to make the Term Loans, Revolving
Loans and Swing Line Loans and of the Letter of Credit Bank to issue Letters of
Credit shall have expired or been terminated and the Notes and all of the other
Obligations have been paid in full and all outstanding Letters of Credit shall
have expired or the liability of the Letter of Credit Bank thereon shall have
otherwise been discharged:
Section 5.1
Financial Statements and
Reports.
The Borrowers' Agent will furnish to the Lenders:
(A)
AS SOON AS AVAILABLE AND IN ANY EVENT
WITHIN 90 DAYS AFTER THE END OF EACH FISCAL YEAR OF THE BORROWERS' AGENT
(INCLUDING THE FISCAL YEAR THAT ENDED AUGUST 31, 2005), THE CONSOLIDATED
FINANCIAL STATEMENTS OF THE BORROWERS' AGENT CONSISTING OF AT LEAST STATEMENTS
OF INCOME, CASH FLOW AND CHANGES IN THE MEMBERS' EQUITY, AND A CONSOLIDATED
BALANCE SHEET AS AT THE END OF SUCH YEAR, SETTING FORTH IN EACH CASE IN
COMPARATIVE FORM CORRESPONDING FIGURES FROM THE PREVIOUS ANNUAL AUDIT, CERTIFIED
WITHOUT QUALIFICATION BY MOORE STEPHENS FROST OR ANOTHER INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS OF RECOGNIZED NATIONAL STANDING SELECTED BY THE BORROWERS AND
REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, TOGETHER WITH (A) ANY
MANAGEMENT LETTERS, MANAGEMENT REPORTS OR OTHER SUPPLEMENTARY COMMENTS OR
REPORTS TO THE BORROWERS' AGENT OR ITS BOARD OF DIRECTORS FURNISHED BY SUCH
ACCOUNTANTS AND (B) A LETTER FROM SUCH ACCOUNTANTS ADDRESSED TO THE LENDERS
ACKNOWLEDGING THAT THE LENDERS ARE EXTENDING CREDIT IN RELIANCE ON SUCH
FINANCIAL STATEMENTS AND AUTHORIZING SUCH RELIANCE.
47
(B)
TOGETHER WITH THE AUDITED FINANCIAL