COPIES FOR EACH LENDER:
(I)
DULY EXECUTED COUNTERPARTS OF THIS
AGREEMENT AND NOTES PAYABLE TO THE ORDER OF EACH OF THE LENDERS, RESPECTIVELY.
(II)
CERTIFIED COPIES OF THE RESOLUTIONS OF THE
BOARD OF DIRECTORS OF THE BORROWER APPROVING THIS AGREEMENT AND THE NOTES, AND
OF ALL DOCUMENTS EVIDENCING OTHER NECESSARY CORPORATE ACTION AND GOVERNMENTAL
APPROVALS, IF ANY, WITH RESPECT TO THIS AGREEMENT AND THE NOTES.
(III)
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 NOTES AND
THE OTHER DOCUMENTS TO BE DELIVERED HEREUNDER.
(IV)
A FAVORABLE OPINION OF EACH OF (A) THE
ASSISTANT GENERAL COUNSEL TO THE BORROWER, AND (B) LATHAM & WATKINS LLP, COUNSEL
FOR THE BORROWER, IN SUBSTANTIALLY THE FORMS OF EXHIBITS D-1 AND D-2 HERETO,
RESPECTIVELY.
(V)
A FAVORABLE OPINION OF SHEARMAN & STERLING
LLP, COUNSEL FOR THE AGENT, IN FORM AND SUBSTANCE SATISFACTORY TO THE AGENT.
(VI)
SUCH OTHER INFORMATION, CERTIFICATES AND
DOCUMENTS AS THE AGENT MAY REASONABLY REQUEST ON BEHALF OF ITSELF OR ANY LENDER.
24
(I)
ALL OUTSTANDING PRINCIPAL OF, AND
ACCRUED INTEREST ON, THE INDEBTEDNESS OUTSTANDING UNDER THE EXISTING CREDIT
AGREEMENT, TOGETHER WITH ALL FEES AND OTHER AMOUNTS PAYABLE THEREUNDER, SHALL
HAVE BEEN PAID IN FULL OR WILL BE PAID IN FULL UPON DISBURSEMENT OF THE INITIAL
ADVANCES HEREUNDER.
SECTION 3.02.
Conditions Precedent to Each Borrowing, Commitment Increase and
Extension Date.
The obligation of each Lender to make an Advance on the
occasion of each Borrowing, each Commitment Increase pursuant to Section 2.16
and each extension of Commitments pursuant to Section 2.17 shall be subject to
the conditions precedent that the Effective Date shall have occurred, and on the
date of such Borrowing, or on the applicable Increase Date or Extension Date, as
the case may be, (a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, request for Commitment Increase or
request for Commitment Extension, and the acceptance by the Borrower of the
proceeds of such Borrowing, or such increase or extension, as the case may be,
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing, or on such Increase Date or Extension Date, as the case may
be, such statements are true):
(I)
THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTION 4.01 (EXCEPT, IN THE CASE OF BORROWINGS, THE
REPRESENTATIONS SET FORTH IN THE LAST SENTENCE OF SUBSECTION (E) THEREOF AND IN
SUBSECTION (F)(I) THEREOF) ARE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH
BORROWING, BEFORE AND AFTER GIVING EFFECT TO SUCH BORROWING AND TO THE
APPLICATION OF THE PROCEEDS THEREFROM, OR ON AND AS OF SUCH INCREASE DATE OR
EXTENSION DATE, AS THE CASE MAY BE, AS THOUGH MADE ON AND AS OF SUCH DATE
(EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES RELATE TO AN EARLIER
DATE, IN WHICH CASE AS THOUGH MADE ON AND AS OF SUCH