(WHETHER OR NOT THEN DUE)
ANY AND ALL BALANCES, CREDITS, DEPOSITS, ACCOUNTS OR MONEYS OF THE BORROWER THEN
OR THEREAFTER MAINTAINED WITH SUCH LENDER OR ANY AFFILIATE OF SUCH LENDER;
PROVIDED, HOWEVER, THAT ANY SUCH APPROPRIATION AND APPLICATION SHALL BE SUBJECT
TO THE PROVISIONS OF SECTION 4.8.
EACH LENDER AGREES PROMPTLY TO NOTIFY THE
BORROWER AND THE AGENT AFTER ANY SUCH SETOFF AND APPLICATION MADE BY SUCH
LENDER; PROVIDED, HOWEVER, THAT THE FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT
THE VALIDITY OF SUCH SETOFF AND APPLICATION.
THE RIGHTS OF EACH LENDER UNDER
THIS SECTION ARE IN ADDITION TO OTHER RIGHTS AND REMEDIES (INCLUDING OTHER
RIGHTS OF SETOFF UNDER APPLICABLE LAW OR OTHERWISE) WHICH SUCH LENDER MAY HAVE.
SECTION 4.10.
USE OF PROCEEDS.
THE BORROWER SHALL USE THE PROCEEDS OF THE
LOANS TO REFINANCE EXISTING INDEBTEDNESS UNDER THE EXISTING CREDIT AGREEMENT,
FOR GENERAL CORPORATE PURPOSES AND FOR COMMERCIAL PAPER BACKUP; WITHOUT LIMITING
THE FOREGOING, NO PROCEEDS OF ANY LOAN WILL BE USED TO ACQUIRE ANY EQUITY
SECURITY OF A PERSON AS PART OF A HOSTILE TAKEOVER.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE LENDERS.
THE
OBLIGATIONS OF THE LENDERS UNDER THIS AGREEMENT SHALL BE SUBJECT TO THE PRIOR OR
CONCURRENT SATISFACTION OF EACH OF THE CONDITIONS PRECEDENT SET FORTH IN THIS
SECTION 5.1.
SECTION 5.1.1.
RESOLUTIONS, ETC.
THE AGENT SHALL HAVE RECEIVED FROM THE
BORROWER A CERTIFICATE, DATED THE SAME DATE AS THIS AGREEMENT, OF ITS SECRETARY
OR ASSISTANT SECRETARY AS TO
(A)
RESOLUTIONS OF ITS BOARD OF DIRECTORS THEN
IN FULL FORCE AND EFFECT AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT TO BE EXECUTED BY IT,
(B)
THE INCUMBENCY AND SIGNATURES OF THOSE OF
ITS OFFICERS AUTHORIZED TO ACT WITH RESPECT TO THIS AGREEMENT, THE NOTES AND
EACH OTHER LOAN DOCUMENT EXECUTED BY IT, UPON WHICH CERTIFICATE EACH LENDER MAY
CONCLUSIVELY RELY UNTIL IT SHALL HAVE RECEIVED A
39
FURTHER CERTIFICATE OF THE SECRETARY OF THE BORROWER CANCELING OR AMENDING SUCH
PRIOR CERTIFICATE, AND
(C)
TRUE AND CORRECT COPIES OF THE ORGANIC
DOCUMENTS OF THE BORROWER.
SECTION 5.1.2.
OFFICER'S CERTIFICATE.
THE AGENT SHALL HAVE RECEIVED A
CERTIFICATE, DATED THE DATE OF THIS AGREEMENT, SIGNED BY AN AUTHORIZED OFFICER
OF THE BORROWER CERTIFYING (A) THAT ON SUCH DATE (BOTH BEFORE AND AFTER GIVING
EFFECT TO THE MAKING OF ANY LOANS HEREUNDER ON SUCH DATE) NO DEFAULT OR EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING, (B) EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLE VI
OF THIS AGREEMENT IS TRUE AND CORRECT ON AND
AS OF SUCH DATE AND (C) THAT THERE HAS BEEN NO EVENT OR CIRCUMSTANCE SINCE
NOVEMBER 30, 2000 WHICH HAS OR COULD BE REASONABLY EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
SECTION 5.1.3.
CLOSING FEES, EXPENSES, ETC.
THE AGENT SHALL HAVE RECEIVED FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF EACH LENDER, THE LEAD ARRANGERS AND THE
OTHER AGENTS, AS THE CASE MAY BE, ALL FEES, COSTS