OR UNDER
THE FEE LETTER TO THE EXTENT DUE AND PAYABLE INCURRED THROUGH (AND FOR WHICH
STATEMENTS HAVE BEEN PROVIDED PRIOR TO) THE DATE OF THE INITIAL BORROWING.
(B)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4.01 SHALL
BE TRUE AND CORRECT ON AND AS OF SUCH DATE WITH THE SAME EFFECT AS THOUGH MADE
ON SUCH DATE.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE FOLLOWING, EACH
DATED THE SAME DAY, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT AND (EXCEPT IN THE CASE OF THE NOTES) IN SUFFICIENT COPIES
FOR EACH LENDER:
(I)
DULY EXECUTED COPIES OF (A) THIS AGREEMENT
EXECUTED BY THE BORROWER AND THE LENDERS AND (B) ANY NOTE REQUESTED BY A LENDER
DULY EXECUTED BY THE BORROWER IN FAVOR OF SUCH LENDER.
(II)
CERTIFIED COPIES OF THE ARTICLES OR CERTIFICATE
OF INCORPORATION AND BYLAWS OF THE BORROWER, TOGETHER WITH ALL AMENDMENTS AND
MODIFICATIONS THERETO AS OF THE DATE OF DELIVERY AND A CERTIFICATE OF GOOD
STANDING FOR THE BORROWER ISSUED BY THE SECRETARY OF STATE OF THE STATE OF ITS
INCORPORATION.
(III)
CERTIFIED COPIES (A) OF THE RESOLUTIONS OF THE
BOARD OF DIRECTORS OF THE BORROWER GRANTING AUTHORITY TO THE BORROWER'S OFFICERS
TO EXECUTE FINANCING OR CREDIT ARRANGEMENTS, (B) OF ALL DOCUMENTS EVIDENCING
OTHER NECESSARY CORPORATE ACTION AND GOVERNMENTAL APPROVALS WITH RESPECT TO THE
EXECUTION, DELIVERY AND PERFORMANCE BY THE BORROWER
30
OF THE CREDIT DOCUMENTS AND (C) TRUE AND CORRECT COPIES OF THE PUT AGREEMENTS,
WHICH SHALL BE IN FULL FORCE AND EFFECT.
(IV)
A CERTIFICATE OF THE SECRETARY OR AN ASSISTANT
SECRETARY OF THE BORROWER CERTIFYING THE NAMES AND TRUE SIGNATURES OF THE
OFFICERS OF THE BORROWER AUTHORIZED TO SIGN THIS AGREEMENT AND THE OTHER
DOCUMENTS TO BE DELIVERED BY THE BORROWER HEREUNDER.
(V)
A SOLVENCY CERTIFICATE OF THE CHIEF FINANCIAL
OFFICER OR TREASURER OF THE BORROWER, SUBSTANTIALLY IN THE FORM OF EXHIBIT F
HERETO.
(VI)
COPIES OF THE FINANCIAL STATEMENTS REFERRED TO IN
SECTION 4.01(F).
(VII)
AN OPINION OR OPINIONS FROM COUNSEL FOR THE
BORROWER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D HERETO, AND SUCH OTHER OPINIONS
AS ANY LENDER, THROUGH THE ADMINISTRATIVE AGENT, MAY REASONABLY REQUEST.
(D)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED EVIDENCE SATISFACTORY
TO IT THAT THE REFERENCE RATING BY S&P IS NOT LOWER THAN BBB (ON "CREDITWATCH"
WITH DEVELOPING IMPLICATIONS) AND THE REFERENCE RATING BY MOODY'S IS NOT LOWER
THAN BAA2 (UNDER REVIEW FOR POSSIBLE DOWNGRADE).
(E)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL PATRIOT ACT
DISCLOSURES REQUESTED BY THE ADMINISTRATIVE AGENT OR ANY LENDER NO FEWER THAN
THREE BUSINESS DAYS PRIOR TO THE DATE HEREOF.
(F)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH OTHER
APPROVALS, OPINIONS AND DOCUMENTS AS THE ADMINISTRATIVE AGENT MAY REASONABLY
REQUEST AS TO THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF THIS
AGREEMENT OR THE FINANCIAL CONDITION, PROPERTIES, OPERATIONS OR PROSPECTS OF THE
BORROWER.
SECTION 3.02.
CONDITIONS PRECEDENT TO EACH BORROWING.
The obligation of each Lender to make Advances to be made by it (including the
initial Advance to