to issue a
Letter of Credit (including the initial issuance thereof) or renew a Letter of
Credit and the right of Borrower to request the issuance or renewal of a Letter
of Credit, shall each be subject to the further conditions precedent that on the
date of the making of each Loan, issuance or renewal:
(A)
THE REPRESENTATIONS AND WARRANTIES OF EACH CREDIT PARTY SET FORTH
IN EACH LOAN DOCUMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND
AS OF THE DATE OF SUCH LOAN, ISSUANCE OR RENEWAL, EXCEPT TO THE EXTENT SUCH
REPRESENTATIONS AND WARRANTIES RELATE TO AN EARLIER DATE.
(B)
AT THE TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH LOAN OR
ISSUANCE, NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AND THE AGGREGATE
REVOLVING CREDIT EXPOSURE OF ALL LENDERS SHALL NOT EXCEED THE BORROWING BASE.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A LOAN REQUEST
MEETING THE REQUIREMENTS OF SECTION 2.04 OR A CREDIT REQUEST MEETING THE
REQUIREMENTS OF SECTION 2.14.
(D)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH OTHER
DOCUMENTATION AND ASSURANCES AS SHALL BE REASONABLY REQUIRED BY IT IN CONNECTION
WITH THE MAKING OF SUCH LOAN OR THE ISSUANCE OR RENEWAL OF SUCH LETTER OF
CREDIT.
The making of each Loan and the issuance and renewal of each Letter of Credit
shall be deemed to constitute a representation and warranty by Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of this
Section 5.02.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and
interest on each Loan, all Reimbursement Obligations and all fees and other
amounts (other than
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contingent indemnity obligations) payable under the Loan Documents shall have
been paid in full, Borrower covenants and agrees with the Lenders that:
SECTION 6.01
FINANCIAL STATEMENTS AND OTHER INFORMATION.
(A)
BORROWER SHALL DELIVER TO THE ADMINISTRATIVE AGENT AND THE
LENDERS, AT BORROWER'S SOLE EXPENSE:
(I) AS SOON AS AVAILABLE BUT NO LATER THAN
FORTY-FIVE (45) DAYS AFTER THE END OF EACH FISCAL QUARTER, THE UNAUDITED
CONSOLIDATED FINANCIAL STATEMENTS OF BORROWER AND K-SEA FOR SUCH INTERIM FISCAL
PERIOD, PREPARED IN ACCORDANCE WITH GAAP AND CERTIFIED BY THE FINANCIAL OFFICER
OF BORROWER AND K-SEA, RESPECTIVELY, (II) AS SOON AS AVAILABLE AFTER THE END OF
EACH FISCAL YEAR, ANNUAL FINANCIAL PROJECTIONS OF BORROWER PREPARED IN
ACCORDANCE WITH GAAP BY THE FINANCIAL OFFICER OF BORROWER, USING MONTHLY DATA,
AND (III) AS SOON AS AVAILABLE BUT NO LATER THAN ONE HUNDRED TWENTY (120) DAYS
AFTER THE END OF EACH FISCAL YEAR OR AS REQUIRED UNDER ANY REGULATIONS TO WHICH
BORROWER OR K-SEA IS SUBJECT, THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS
(WITH AN UNQUALIFIED OPINION WITHOUT A GOING CONCERN QUALIFICATION) OF BORROWER
AND K-SEA FOR SUCH FISCAL YEAR, PREPARED AND CERTIFIED BY INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS ACCEPTABLE TO LENDERS.
ALL OF THE FOREGOING SHALL BE IN SUCH
FORM AND TOGETHER WITH SUCH INFORMATION WITH RESPECT TO THE BUSINESS OF
BORROWER, AS LENDERS MAY IN