the LC
Issuers to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
9.02) at or prior to 5:00 p.m., New York City time, on February 28, 2005 (and,
in the event such conditions are not so satisfied or waived at or prior to such
time, this Agreement shall not become effective).
SECTION 4.02
EACH BORROWING.
THE OBLIGATION OF EACH LENDER TO MAKE A LOAN
(INCLUDING AN INCREMENTAL LOAN AND A SWINGLINE LOAN) ON THE OCCASION OF ANY
BORROWING, AND OF EACH LC ISSUER TO ISSUE, RENEW OR EXTEND ANY LETTER OF CREDIT,
IS SUBJECT TO RECEIPT OF THE REQUEST THEREFOR IN ACCORDANCE HEREWITH AND TO THE
SATISFACTION OF THE FOLLOWING CONDITIONS:
(A)
TRUTH OF REPRESENTATIONS.
THE REPRESENTATIONS AND WARRANTIES OF
EACH LOAN PARTY SET FORTH IN THE LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE OF SUCH BORROWING OR ON THE DATE OF
ISSUANCE, RENEWAL OR EXTENSION OF SUCH LETTER OF CREDIT, AS APPLICABLE (OR, IF
ANY SUCH REPRESENTATION AND WARRANTY IS EXPRESSLY STATED TO HAVE BEEN MADE AS OF
A SPECIFIC DATE, AS OF SUCH SPECIFIC DATE).
(B)
ABSENCE OF DEFAULTS.
AT THE TIME OF AND IMMEDIATELY AFTER GIVING
EFFECT TO SUCH BORROWING, OR THE ISSUANCE, RENEWAL OR EXTENSION OF SUCH LETTER
OF CREDIT, AS APPLICABLE, NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
Each Borrowing and each issuance, renewal or extension of a Letter of Credit
shall be deemed to constitute a representation and warranty by the Parent and
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
SECTION 4.03
EACH INCREMENTAL LOAN.
THE OBLIGATION OF EACH INCREMENTAL LOAN
LENDER OF ANY SERIES TO MAKE AN INCREMENTAL LOAN OF SUCH SERIES IS SUBJECT TO
THE SATISFACTION OF THE ADDITIONAL CONDITION THAT NO DIVIDEND SUSPENSION PERIOD
SHALL HAVE OCCURRED AND BE
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CONTINUING AS OF THE DATE OF SUCH BORROWING AND TO THE RECEIPT BY THE
ADMINISTRATIVE AGENT OF A CERTIFICATE TO SUCH EFFECT, DATED THE DATE OF THE
MAKING OF SUCH INCREMENTAL LOAN AND SIGNED BY THE PRESIDENT, A VICE PRESIDENT OR
A FINANCIAL OFFICER OF THE BORROWER.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated (or fully
collateralized in a manner reasonably satisfactory to the LC Issuers with cash
and/or letters of credit) and all LC Disbursements shall have been reimbursed,
each of the Parent and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01
FINANCIAL STATEMENTS AND OTHER INFORMATION.
THE BORROWER WILL
FURNISH TO THE ADMINISTRATIVE AGENT:
(A)
WITHIN 100 DAYS AFTER THE END OF EACH OF ITS FISCAL YEAR OF THE
BORROWER, THE PARENT'S AUDITED CONSOLIDATED AND UNAUDITED CONSOLIDATING BALANCE
SHEET AND RELATED STATEMENTS OF OPERATIONS,