AMOUNT OF SUCH LENDER'S
COMMITMENT AFTER GIVING EFFECT TO ANY INCREASE OF THE AGGREGATE COMMITMENT.
ARTICLE III -
- CONDITIONS
SECTION 3.1
ALL LOANS.
THE OBLIGATION OF EACH LENDER TO MAKE ANY LOAN OR OF
ANY ISSUER TO ISSUE ANY LETTER OF CREDIT (INCLUDING WITHOUT LIMITATION, ANY
EXTENSION OF THE EXPIRY DATE OF ANY LETTER OF CREDIT OR INCREASE IN THE FACE
AMOUNT OF ANY LETTER OF CREDIT) IS SUBJECT TO THE ACCURACY OF ALL
REPRESENTATIONS AND WARRANTIES OF THE COMPANY ON THE DATE OF SUCH LOAN OR
ISSUANCE OF SUCH LETTER OF CREDIT, TO THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS AND TO THE SATISFACTION OF THE FOLLOWING
FURTHER CONDITIONS:
(A)
THE AGENT SHALL HAVE RECEIVED THE FOLLOWING, ALL OF WHICH SHALL BE
DULY EXECUTED AND IN PROPER FORM: (1) IN THE CASE OF A LOAN, OTHER THAN A LOAN
TO BE MADE TO REPAY A LETTER OF CREDIT ADVANCE PURSUANT TO SECTION 2.4 HEREOF,:
I.
BY NO LATER THAN 12:00 NOON (NEW YORK CITY TIME) ON THE
APPLICABLE RATE SELECTION DATE, NOTICE BY TELEPHONE OR FACSIMILE FROM THE
COMPANY OF THE PROPOSED DATE AND AMOUNT OF SUCH LOAN, AND
II.
NO LATER THAN 2:00 P.M. (NEW YORK CITY TIME) ON THE APPLICABLE
RATE SELECTION DATE, A REQUEST FOR EXTENSION OF CREDIT AND CERTIFICATE OF NO
DEFAULT, SIGNED BY A RESPONSIBLE OFFICER;
OR, IN THE CASE OF ISSUANCE OF A LETTER OF CREDIT, A COMPLETED APPLICATION (AS
MAY BE REQUIRED BY THE AGENT OR THE APPLICABLE ISSUER) SIGNED BY A RESPONSIBLE
OFFICER OF THE COMPANY BY 10:00 A.M. FIVE (5) BUSINESS DAYS PRIOR TO THE
PROPOSED DATE OF ISSUANCE OF SUCH LETTER OF CREDIT AND PAYMENT OF THE FIRST
QUARTERLY LETTER OF CREDIT FEE AS AND BY THE TIME REQUIRED IN SECTION 2.15(B) OF
THIS AGREEMENT, ALONG WITH, IN EACH CASE, SUCH FINANCIAL INFORMATION AS THE
AGENT MAY REASONABLY REQUIRE TO SUBSTANTIATE COMPLIANCE WITH ALL FINANCIAL
COVENANTS CONTAINED HEREIN BY THE COMPANY;
35
AND (2) SUCH OTHER APPLICATIONS, CERTIFICATES AND OTHER DOCUMENTS AS THE AGENT
MAY REASONABLY REQUIRE;
(B)
NO DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, OR WOULD RESULT
THEREFROM;
(C)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LOAN DOCUMENTS
ARE TRUE AND CORRECT ON AND AS OF SUCH DATE (EXCEPT ANY REPRESENTATION AND
WARRANTY THAT EXPRESSLY INDICATES THAT IT IS BEING MADE AS OF A SPECIFIC DATE,
AND THEN AS OF SUCH DATE);
(D)
THE MAKING OF SUCH LOAN OR THE ISSUANCE OF SUCH LETTER OF CREDIT,
SHALL NOT BE PROHIBITED BY, OR SUBJECT THE AGENT, THE APPLICABLE ISSUER OR ANY
LENDER TO ANY PENALTY OR ONEROUS CONDITION UNDER, ANY LEGAL REQUIREMENT; AND
(E)
THE COMPANY SHALL HAVE PAID ALL LEGAL FEES AND EXPENSES OF THE
TYPE DESCRIBED IN SECTION 9.8 HEREOF THROUGH THE DATE OF SUCH LOAN OR THE
ISSUANCE OF SUCH LETTER OF CREDIT.
SECTION 3.2
FIRST LOAN.
IN ADDITION TO THE MATTERS DESCRIBED IN SECTION 3.1
HEREOF, THE OBLIGATION OF ANY LENDER TO MAKE THE INITIAL LOAN OR