BE SOLVENT SUBSEQUENT TO INCURRING THE INDEBTEDNESS
UNDER THIS AGREEMENT ON THE CLOSING DATE, WILL BE ABLE TO PAY ITS DEBTS AND
LIABILITIES AS THEY BECOME DUE AND WILL NOT BE LEFT WITH UNREASONABLY SMALL
CAPITAL WITH WHICH TO ENGAGE IN ITS BUSINESSES.
4.2.
EACH CREDIT EXTENSION.
THE LENDERS SHALL NOT
(EXCEPT AS OTHERWISE SET FORTH IN SECTION 2.4.4 WITH RESPECT TO REVOLVING LOANS
EXTENDED FOR THE PURPOSE OF REPAYING SWING LINE LOANS) BE REQUIRED TO MAKE ANY
CREDIT EXTENSION UNLESS ON THE APPLICABLE CREDIT EXTENSION DATE:
4.2.1
THERE EXISTS NO DEFAULT OR UNMATURED DEFAULT.
4.2.2
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE V ARE TRUE AND
CORRECT AS OF SUCH CREDIT EXTENSION DATE EXCEPT TO THE EXTENT ANY SUCH
REPRESENTATION OR WARRANTY IS STATED TO RELATE SOLELY TO AN EARLIER DATE, IN
WHICH CASE SUCH REPRESENTATION OR WARRANTY SHALL HAVE BEEN TRUE AND CORRECT ON
AND AS OF SUCH EARLIER DATE.
Each Borrowing Notice or Swing Line Borrowing Notice, as the case may be, or
request for issuance of a Facility LC, with respect to each such Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Sections 4.2.1 and 4.2.2 have been satisfied.
The
Administrative Agent may require a duly completed compliance certificate in
substantially the form of Exhibit B as a condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Lender and the Administrative Agent
as of each of (i) the Closing Date, (ii) the date of the initial Credit
Extension hereunder (if different from the Closing Date) and (iii) each date as
required by Section 4.2:
5.1.
EXISTENCE AND STANDING.
EACH OF THE BORROWER
AND ITS SUBSIDIARIES IS A CORPORATION, PARTNERSHIP (IN THE CASE OF SUBSIDIARIES
ONLY) OR LIMITED LIABILITY COMPANY DULY AND PROPERLY INCORPORATED
44
OR ORGANIZED, AS THE CASE MAY BE, VALIDLY EXISTING AND (TO THE EXTENT SUCH
CONCEPT APPLIES TO SUCH ENTITY) IN GOOD STANDING UNDER THE LAWS OF ITS
JURISDICTION OF INCORPORATION OR ORGANIZATION AND HAS ALL REQUISITE AUTHORITY TO
CONDUCT ITS BUSINESS IN EACH JURISDICTION IN WHICH ITS BUSINESS IS CONDUCTED,
EXCEPT WHERE THE FAILURE TO BE IN GOOD STANDING COULD NOT REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT.
5.2.
AUTHORIZATION AND VALIDITY.
THE BORROWER HAS
THE POWER AND AUTHORITY AND LEGAL RIGHT TO EXECUTE AND DELIVER THE LOAN
DOCUMENTS TO WHICH IT IS A PARTY AND TO PERFORM ITS OBLIGATIONS THEREUNDER.
THE
EXECUTION AND DELIVERY BY THE BORROWER OF THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY AND THE PERFORMANCE OF ITS OBLIGATIONS THEREUNDER HAVE BEEN DULY
AUTHORIZED BY PROPER PROCEEDINGS, AND THE LOAN DOCUMENTS TO WHICH THE BORROWER
IS A PARTY CONSTITUTE LEGAL, VALID AND BINDING OBLIGATIONS OF THE BORROWER
ENFORCEABLE AGAINST THE BORROWER IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY (I) BANKRUPTCY, INSOLVENCY, FRAUDULENT
CONVEYANCES, REORGANIZATION OR SIMILAR LAWS RELATING TO OR AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY; (II) GENERAL EQUITABLE PRINCIPLES
(WHETHER