ENTITLED TO RECOVER SUCH AMOUNT FROM
SUCH LENDER, AND EACH LENDER SHALL REPAY TO THE AGENT ON DEMAND SUCH AMOUNT,
TOGETHER WITH INTEREST THEREON FOR EACH DAY FROM THE DATE SUCH AMOUNT IS
DISTRIBUTED TO SUCH LENDER UNTIL THE DATE SUCH LENDER REPAYS SUCH AMOUNT TO THE
AGENT, AT THE FEDERAL FUNDS RATE, WITHOUT SETOFF, RECOUPMENT, COUNTERCLAIM OR
DEDUCTION OF ANY KIND.
IF THE AGENT DETERMINES AT ANY TIME THAT ANY AMOUNT
RECEIVED BY THE AGENT UNDER THIS AGREEMENT MUST BE RETURNED TO THE BORROWER OR
PAID TO ANY OTHER PERSON PURSUANT TO ANY SOLVENCY, FRAUDULENT CONVEYANCE OR
SIMILAR LAW OR OTHERWISE, THEN, NOTWITHSTANDING ANY OTHER TERM OR CONDITION OF
THIS AGREEMENT, THE AGENT WILL NOT BE REQUIRED TO DISTRIBUTE ANY PORTION OF SUCH
PAYMENT TO ANY LENDER.
IN ADDITION, EACH LENDER WILL REPAY TO THE AGENT ON
DEMAND ANY PORTION OF SUCH AMOUNT THAT THE AGENT HAS DISTRIBUTED TO SUCH LENDER,
TOGETHER WITH INTEREST THEREON AT SUCH RATE, IF ANY, AS THE AGENT IS REQUIRED TO
PAY TO THE BORROWER OR SUCH OTHER PERSON, WITHOUT SETOFF, RECOUPMENT,
COUNTERCLAIM OR DEDUCTION OF ANY KIND.
ARTICLE II - CONDITIONS PRECEDENT
2.1
CONDITIONS TO EFFECTIVENESS.
THE
EFFECTIVENESS OF THIS AGREEMENT AND THE OBLIGATION OF EACH LENDER TO MAKE LOANS
AND OF THE AGENT TO ISSUE LENDER LETTERS OF CREDIT OR LETTER OF CREDIT
PARTICIPATION AGREEMENTS HEREUNDER ARE SUBJECT TO THE CONDITION THAT THE AGENT
SHALL HAVE RECEIVED ON OR BEFORE THE RESTATEMENT EFFECTIVE DATE ALL OF THE
FOLLOWING, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE AGENT AND EACH
LENDER AND (EXCEPT FOR THE NOTES AND ANY INSTRUMENTS OR DOCUMENTS WHICH ARE
PLEDGED COLLATERAL) IN SUFFICIENT COUNTERPARTS FOR EACH LENDER, DULY EXECUTED BY
ALL PARTIES THERETO:
(A)
CREDIT AGREEMENT AND NOTES.
THIS AGREEMENT
EXECUTED BY THE BORROWER, THE AGENT AND EACH OF THE LENDERS, AND THE NOTES
EXECUTED BY THE BORROWER;
14
(B)
SECRETARY'S CERTIFICATES; RESOLUTIONS;
INCUMBENCY.
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF THE
BORROWER AND EACH SUBSIDIARY OF THE BORROWER WHICH IS A PARTY TO ANY LOAN
DOCUMENT, CERTIFYING:
(I)
THE NAMES AND TRUE SIGNATURES OF THE
OFFICERS OF THE BORROWER AND EACH SUCH SUBSIDIARY AUTHORIZED TO EXECUTE, DELIVER
AND PERFORM, AS APPLICABLE, THIS AGREEMENT, AND ALL OTHER LOAN DOCUMENTS TO BE
DELIVERED HEREUNDER; AND
(II)
COPIES OF THE RESOLUTIONS OF THE BOARD OF
DIRECTORS OR OTHER GOVERNING BODY OF THE BORROWER AND EACH SUCH SUBSIDIARY
APPROVING AND AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE, AS
APPLICABLE, BY THE BORROWER OR SUCH SUBSIDIARY OF THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO BE EXECUTED OR DELIVERED BY IT HEREUNDER;
(C)
ORGANIZATION DOCUMENTS AND GOOD STANDING.
EACH OF THE FOLLOWING DOCUMENTS:
(I)
THE ORGANIZATION DOCUMENTS OF THE
BORROWER AND EACH OF ITS SUBSIDIARIES, AS SUCH ORGANIZATION DOCUMENTS ARE IN
EFFECT ON THE RESTATEMENT EFFECTIVE DATE, CERTIFIED BY THE SECRETARY OF STATE
(OR SIMILAR, APPLICABLE GOVERNMENTAL AUTHORITY) OF THE STATE OF INCORPORATION OR
FORMATION OF THE BORROWER OR SUCH SUBSIDIARY AS OF A RECENT DATE, IF AND AS
APPLICABLE, ALL