AND
A CERTIFICATE FROM AN OFFICER OF THE GENERAL PARTNER THAT NO MATERIAL ADVERSE
CHANGE IN THE GENERAL PARTNER'S OR THE BORROWER'S FINANCIAL CONDITION HAS
OCCURRED SINCE SEPTEMBER 30, 2003 ;
(X)
UCC FINANCING STATEMENT, JUDGMENT, AND TAX LIEN SEARCHES WITH RESPECT TO THE
GENERAL PARTNER AND THE BORROWER FROM THEIR STATES OF ORGANIZATION AND THE
STATES WHERE THEY HAVE THEIR PRINCIPAL PLACE OF BUSINESS;
(XI)
EVIDENCE OF SUFFICIENT UNENCUMBERED ASSETS (WHICH EVIDENCE IF REQUESTED BY
ADMINISTRATIVE AGENT MAY INCLUDE MORTGAGE RELEASES AND TITLE POLICIES) TO ASSIST
THE ADMINISTRATIVE AGENT IN DETERMINING THE BORROWER'S COMPLIANCE WITH THE
COVENANTS SET FORTH IN ARTICLE VII HEREIN;
(XII)
WRITTEN MONEY TRANSFER INSTRUCTIONS, IN SUBSTANTIALLY THE FORM OF EXHIBIT E
HERETO, ADDRESSED TO THE ADMINISTRATIVE AGENT AND SIGNED BY AN AUTHORIZED
OFFICER, TOGETHER WITH SUCH OTHER RELATED MONEY TRANSFER AUTHORIZATIONS AS THE
ADMINISTRATIVE AGENT MAY HAVE REASONABLY REQUESTED;
(XIII)
EVIDENCE THAT ALL PARTIES WHOSE CONSENT IS REQUIRED FOR BORROWER OR GENERAL
PARTNER TO EXECUTE THE LOAN DOCUMENTS HAVE PROVIDED SUCH CONSENTS;
(XIV)
THE ADMINISTRATIVE AGENT SHALL HAVE DETERMINED THAT (I) SINCE OCTOBER 16, 2003
THERE IS AN ABSENCE OF ANY MATERIAL ADVERSE CHANGE OR DISRUPTION IN PRIMARY OR
SECONDARY LOAN SYNDICATION MARKETS, FINANCIAL MARKETS OR IN CAPITAL MARKETS
GENERALLY THAT WOULD LIKELY IMPAIR SYNDICATION OF THE LOANS HEREUNDER AND (II)
THE BORROWER HAS FULLY COOPERATED WITH THE ADMINISTRATIVE AGENT'S SYNDICATION
EFFORTS INCLUDING, WITHOUT LIMITATION, BY PROVIDING THE ADMINISTRATIVE AGENT
WITH INFORMATION REGARDING THE BORROWER'S OPERATIONS AND PROSPECTS AND SUCH
OTHER INFORMATION AS THE ADMINISTRATIVE AGENT DEEMS NECESSARY TO SUCCESSFULLY
SYNDICATE THE LOANS HEREUNDER;
(XV)
SUCH OTHER DOCUMENTS AS ANY LENDER OR ITS COUNSEL MAY HAVE REASONABLY REQUESTED,
THE FORM AND SUBSTANCE OF WHICH DOCUMENTS SHALL BE ACCEPTABLE TO THE PARTIES AND
THEIR RESPECTIVE COUNSEL.
Until such time as the foregoing conditions are satisfied and the initial
disbursement hereunder has been made, the Existing Credit Agreement shall remain
in effect.
From and after the satisfaction of such conditions, this Agreement
shall be in effect and each of the new Lenders that are parties to this
Agreement shall be added as Lenders and the Commitments of all Lenders shall be
as set forth on the signature pages.
45
5.2.
EACH CREDIT EXTENSION.
THE LENDERS SHALL NOT
BE REQUIRED TO MAKE ANY CREDIT EXTENSION (INCLUDING SWING LINE LOANS) OTHER THAN
AN ADVANCE OR SWING LINE LOAN THAT, AFTER GIVING EFFECT THERETO AND TO THE
APPLICATION OF THE PROCEEDS THEREOF, DOES NOT INCREASE THE AGGREGATE AMOUNT OF
OUTSTANDING ADVANCES (INCLUDING SWING LINE LOANS) AND COMPETITIVE BID LOANS,
UNLESS ON THE APPLICABLE BORROWING DATE:
(I)
THERE EXISTS NO DEFAULT OR UNMATURED DEFAULT;
(II)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VI ARE TRUE AND CORRECT
AS OF SUCH BORROWING DATE WITH RESPECT TO THE GENERAL PARTNER, THE BORROWER AND
TO ANY SUBSIDIARY IN EXISTENCE (AS APPLICABLE) ON SUCH BORROWING 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 BE TRUE