Conditions Precedent to Effectiveness of Sections. 2.01 and 2.03. Sections 2.01 and 2.03 shall become effective on the first day (the "Effective Date") on which all of the following conditions precedent have been satisfied: (a) The Administrative Agent shall have received the following, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Committed Notes) in sufficient copies for the Banks: (i) This Agreement, executed by the Company, the Administrative Agent and each of the Banks; (ii) A Committed Note executed by the Company, payable to each Bank; (iii) A certificate of the Secretary of the Company certifying (A) copies attached thereto of the resolutions of the Board of Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B) copies attached thereto of the Certificate of Incorporation and by-laws of the Company, and (C) the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder; (iv) A certificate of a duly authorized officer of the Company, dated the Effective Date, certifying that as of such date, (A) the representations and warranties contained in Section 4.01 are correct on and as of the Effective Date and (B) no event shall have occurred and be continuing that constitutes an Event of Default or which would constitute an Event of Default but for the requirement that notice be given or time elapse or both; (v) A favorable opinion of counsel for the Company, substantially in the form of Exhibit G hereto; and (vi) Copies of the restated certificate of incorporation of the Company, together with all amendments, and a certificate of good standing, each certified by the Secretary of State of Delaware, as well as any other information required by Section 326 of the USA Patriot Act or necessary for the Administrative Agent or any Bank to verify the identity of the Company as required by Section 326 of the USA Patriot Act. (b) The Company shall have paid all accrued fees and expenses of the Arranger, the Administrative Agent and the Banks which are due and payable on the Effective Date (including, without limitation, the reasonable fees and expenses of counsel for the Arranger and the Administrative Agent); (c) There shall have occurred no material adverse change in the business, financial condition, operations, properties or performance of the Company and its Subsidiaries, taken as a whole, since December 31, 2002; (d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of any Responsible Officer of the Company, threatened, that could reasonably be expected (i) to have a Material Adverse Effect (except as set forth on Schedule III hereto as of the date hereof) or (ii) to materially and adversely affect the legality, validity or enforceability of this Agreement or any Note; (e) The representations and warranties contained in Section 4.01 shall be correct on and as of the Effective Date, as though made on and as of such date; and (f) No event shall have occurred and be continuing which constitutes an Event of Default or which would constitute an Event of Default but for the requirement that notice be given or time elapse or both. For purposes of determining compliance with the conditions specified above, each Bank shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Banks unless the officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Bank prior to the proposed Effective Date, as notified by the Administrative Agent to the Banks, specifying its objection thereto. The Administrative Agent shall promptly notify the Banks of the occurrence of the Effective Date.
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Conditions Precedent to Effectiveness of Sections. Section 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the first day date (the "Effective Date") on which all of the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31, 1999.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(b) hereto (the "DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, and there shall have been no adverse change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(c) The Administrative Agent shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, reasonably satisfactory to the Lenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all reasonable accrued fees and expenses of the Agent (including the accrued reasonable fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true and the Agent shall have received the following, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Committed Notes) in sufficient copies for the Banks:
(i) This Agreement, executed account of each Lender a certificate signed by the Company, the Administrative Agent and each of the Banks;
(ii) A Committed Note executed by the Company, payable to each Bank;
(iii) A certificate of the Secretary of the Company certifying (A) copies attached thereto of the resolutions of the Board of Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B) copies attached thereto of the Certificate of Incorporation and by-laws of the Company, and (C) the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder;
(iv) A certificate of a duly authorized officer of the CompanyBorrower, dated the Effective Date, certifying that as of such date, stating that:
(Ai) the The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date and Date, and
(Bii) no No event shall have has occurred and be is continuing that constitutes an Event of Default a Default.
(h) The Agent shall have received on or which would constitute an Event of Default but before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the requirement that notice Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be given or time elapse or both;delivered hereunder.
(iv) A reserve and operational audit, in form and substance satisfactory to the Lenders, from John ▇. ▇▇▇▇ Company.
(v) A favorable opinion of counsel (A) Jone▇, ▇▇y, Reav▇▇ & Pogu▇, ▇▇unsel for the CompanyBorrower, substantially in the form of Exhibit G hereto; D-1 hereto and (B) Thom▇▇ ▇. ▇▇▇▇, ▇▇q., Vice President-Law and Administration of the Borrower, substantially in the form of Exhibit D-2 hereto and, in each case, as to such other matters as any Lender through the Agent may reasonably request.
(vi) Copies A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent.
(i) The Borrower shall have terminated the commitments, and paid in full all Debt, interest, fees and other amounts outstanding, under the $50,000,000 Credit Agreement dated as of September 21, 1991 among the Borrower, the lenders parties thereto and Morg▇▇ ▇▇aranty Trust Company of New York, as agent for such lenders, and each of the restated certificate Lenders that is a party to such $50,000,000 Credit Agreement hereby waives, upon execution of incorporation of this Agreement the Company, together with all amendments, and a certificate of good standing, each certified by the Secretary of State of Delaware, as well as any other information three Business Days notice required by Section 326 2.07 of the USA Patriot Act or necessary for the Administrative Agent or any Bank to verify the identity of the Company as required by Section 326 of the USA Patriot Act.
(b) The Company shall have paid all accrued fees and expenses of the Arranger, the Administrative Agent and the Banks which are due and payable on the Effective Date (including, without limitation, the reasonable fees and expenses of counsel for the Arranger and the Administrative Agent);
(c) There shall have occurred no material adverse change in the business, financial condition, operations, properties or performance of the Company and its Subsidiaries, taken as a whole, since December 31, 2002;
(d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or such Credit Agreement relating to the knowledge termination of any Responsible Officer of the Company, threatened, that could reasonably be expected (i) to have a Material Adverse Effect (except as set forth on Schedule III hereto as of the date hereof) or (ii) to materially and adversely affect the legality, validity or enforceability of this Agreement or any Note;
(e) The representations and warranties contained in Section 4.01 shall be correct on and as of the Effective Date, as though made on and as of such date; and
(f) No event shall have occurred and be continuing which constitutes an Event of Default or which would constitute an Event of Default but for the requirement that notice be given or time elapse or both. For purposes of determining compliance with the conditions specified above, each Bank shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Banks unless the officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Bank prior to the proposed Effective Date, as notified by the Administrative Agent to the Banks, specifying its objection thereto. The Administrative Agent shall promptly notify the Banks of the occurrence of the Effective Datecommitments thereunder.
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