30, 2005.
(N)
COMPLIANCE CERTIFICATE.
A COMPLIANCE
CERTIFICATE, DATED THE AGREEMENT DATE AND SIGNED BY AN AUTHORIZED SIGNATORY OF
BORROWER, CONFIRMING COMPLIANCE WITH THE FINANCIAL COVENANTS SET FORTH THEREIN
AS OF THE MOST RECENT DETERMINATION DATE.
(O)
INSURANCE EVIDENCE THAT INSURANCE REQUIRED
BY THE LOAN DOCUMENTS IS IN EFFECT.
(P)
INVESTMENT PORTFOLIO AND POLICY.
A
SCHEDULE OF ALL EXISTING INVESTMENTS AND A COPY OF THE COMPLETE CURRENTLY
EFFECTIVE INVESTMENT POLICY OF EACH RIC, AND LENDER SHALL BE SATISFIED WITH THE
INVESTMENT PORTFOLIO OF EACH RIC AND THE INVESTMENT POLICY OF EACH RIC.
(Q)
NOTICE OF FINAL AGREEMENT.
THE NOTICE OF
FINAL AGREEMENT EXECUTED BY ALL PARTIES THERETO.
(R)
EXISTING DEBT.
A SCHEDULE OF ALL
EXISTING DEBT, IN DETAIL SATISFACTORY TO LENDER.
(S)
EXISTING LITIGATION.
A SCHEDULE OF ALL
EXISTING LITIGATION, IN DETAIL SATISFACTORY TO LENDER.
(T)
PREFERRED STOCK DOCUMENTS.
A COPY OF ALL
PREFERRED STOCK DOCUMENTS, TOGETHER WITH ALL AMENDMENTS THERETO.
(U)
OTHER DOCUMENTS.
IN FORM AND SUBSTANCE
SATISFACTORY TO LENDER AND SPECIAL COUNSEL, SUCH OTHER DOCUMENTS, INSTRUMENTS
AND CERTIFICATES AS LENDER MAY REASONABLY REQUIRE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY.
26
4.2
CONDITIONS PRECEDENT TO ALL ADVANCE LOANS.
THE OBLIGATION OF LENDER TO MAKE EACH ADVANCE LOAN (INCLUDING THE INITIAL
ADVANCE LOAN) IS SUBJECT TO FULFILLMENT OF THE FOLLOWING CONDITIONS IMMEDIATELY
PRIOR TO OR CONTEMPORANEOUSLY WITH EACH SUCH ADVANCE LOAN:
(A)
REPRESENTATIONS AND WARRANTIES.
ALL OF THE
REPRESENTATIONS AND WARRANTIES OF BORROWER, EACH OF ITS SUBSIDIARIES AND EACH
OTHER OBLIGOR UNDER THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT, WHICH, PURSUANT
TO SECTION 7.24, ARE MADE AT AND AS OF THE TIME OF EACH ADVANCE LOAN, SHALL BE
TRUE AND CORRECT WHEN MADE, EXCEPT TO THE EXTENT APPLICABLE TO A SPECIFIC DATE,
BOTH BEFORE AND AFTER GIVING EFFECT TO THE APPLICATION OF THE PROCEEDS OF SUCH
ADVANCE LOAN.
(B)
NO DEFAULT OR EVENT OF DEFAULT.
THERE SHALL
NOT EXIST A DEFAULT OR EVENT OF DEFAULT.
(C)
NOTICES; DOCUMENTS.
LENDER SHALL HAVE
RECEIVED ALL NOTICES AND DOCUMENTS REQUIRED BY ARTICLE II AS A CONDITION TO THE
RELATED ADVANCE LOAN.
(D)
LITIGATION.
EXCEPT AS DESCRIBED IN
SCHEDULE 7.5, THERE SHALL BE NO LITIGATION PENDING AGAINST, OR, TO BORROWER'S OR
ANY OBLIGOR'S KNOWLEDGE, THREATENED AGAINST BORROWER, ANY OTHER OBLIGOR, OR ANY
SUBSIDIARY, OR IN ANY OTHER MANNER RELATING DIRECTLY AND ADVERSELY TO BORROWER,
ANY OTHER OBLIGOR, OR ANY SUBSIDIARY, OR ANY OF THEIR RESPECTIVE PROPERTIES, IN
ANY COURT OR BEFORE ANY ARBITRATOR OF ANY KIND OR BEFORE OR BY ANY GOVERNMENTAL
AUTHORITY WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(E)
MATERIAL ADVERSE CHANGE.
THERE SHALL HAVE
OCCURRED NO CHANGE IN THE BUSINESS, ASSETS, OPERATIONS OR FINANCIAL CONDITION OF
BORROWER, ANY OTHER OBLIGOR, OR ANY SUBSIDIARY SINCE DECEMBER 31, 2004, WHICH
CAUSED OR COULD REASONABLY BE EXPECTED TO CAUSE A MATERIAL ADVERSE EFFECT.
ARTICLE V
AFFIRMATIVE COVENANTS
From the date hereof and so long as this Agreement is in effect and until
payment in full of the Obligations, the termination of the Advance Commitment,
and the performance of