EXPECTED TO
AFFECT MATERIALLY AND ADVERSELY THE BUSINESS,
ASSETS, LIABILITIES, FINANCIAL CONDITION OR MATERIAL
AGREEMENTS OF THE BORROWER AND ITS SUBSIDIARIES TAKEN
AS A WHOLE.
(F)
OTHER DOCUMENTS. THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH OTHER APPROVALS, OPINIONS OR
DOCUMENTS AS THE ADMINISTRATIVE AGENT OR ANY LENDER MAY REQUEST.
(G)
FEES, COSTS AND
EXPENSES.
THE BORROWER SHALL HAVE PAID ALL COSTS AND EXPENSES REFERRED TO IN
SECTION 10.04 (INCLUDING LEGAL FEES AND EXPENSES AND THE ALLOCATED COST OF
IN‐HOUSE COUNSEL) FOR WHICH THE BORROWER HAS BEEN INVOICED PRIOR TO THE
EFFECTIVE DATE.
(H)
TFM GUARANTEE.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) A COUNTERPART OF THE GUARANTEE
AGREEMENT EXECUTED BY TFM OR (II) WRITTEN EVIDENCE SATISFACTORY TO THE
ADMINISTRATIVE AGENT (WHICH MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED
COUNTERPART) THAT TFM HAS SIGNED SUCH COUNTERPART, TOGETHER WITH (A) A FAVORABLE
OPINION, DATED THE DATE OF THE GUARANTEE AGREEMENT AND ADDRESSED TO THE
ADMINISTRATIVE AGENT AND THE LENDERS OF
COUNSEL TO TFM, TO SUBSTANTIALLY THE
EFFECT SET FORTH ON EXHIBIT 5.01 AND AS TO SUCH OTHER MATTERS AS ANY LENDER
THROUGH THE ADMINISTRATIVE AGENT MAY REASONABLY REQUEST AND (B) SUCH DOCUMENTS
AND CERTIFICATES AS THE ADMINISTRATIVE AGENT OR ITS COUNSEL MAY REASONABLY
REQUEST RELATING TO THE ORGANIZATION, EXISTENCE AND GOOD STANDING OF TFM, AND
THE AUTHORIZATION OF THE TRANSACTIONS TO WHICH TFM IS PARTY.
97
(I)
RECEIVABLES FACILITY.
THE
RECEIVABLES FACILITY SHALL BE IN FULL FORCE AND EFFECT.
(J)
TERMINATION OF REPLACED
CREDIT AGREEMENTS.
THE REPLACED CREDIT AGREEMENTS SHALL HAVE BEEN OR SHALL
SIMULTANEOUSLY BE TERMINATED AND THE PRINCIPAL OF AND INTEREST ACCRUED ON ALL
LOANS OUTSTANDING THEREUNDER AND ALL FEES ACCRUED THEREUNDER SHALL HAVE BEEN OR
SHALL SIMULTANEOUSLY BE PAID IN FULL.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 p.m.,
New York City time, on June 9, 2004 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02.
CONDITIONS
PRECEDENT TO ALL BORROWINGS AND ISSUANCES OF LETTERS OF CREDIT.
THE OBLIGATION
OF EACH LENDER TO MAKE ANY LOAN AND OF EACH ISSUING BANK TO ISSUE ANY LETTER OF
CREDIT ON OR AFTER THE EFFECTIVE DATE SHALL BE SUBJECT TO THE FURTHER CONDITIONS
PRECEDENT THAT:
(A)
NOTICE.
IN THE CASE OF A
COMMITTED BORROWING, THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A NOTICE OF
BORROWING AS REQUIRED BY SECTION 2.02 OR, IN THE CASE OF THE ISSUANCE OF A
LETTER OF CREDIT, THE APPLICABLE ISSUING BANK AND THE ADMINISTRATIVE AGENT SHALL
HAVE RECEIVED A NOTICE REQUESTING THE ISSUANCE OF SUCH LETTER OF CREDIT AS
REQUIRED BY SECTION 2.12(B).
(B)
CONTINUATION OF
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
ARTICLE IV AND IN EACH OTHER LOAN DOCUMENT SHALL BE