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This excerpt taken from the BKS 8-K filed Oct 1, 2009. Conditions
to all Credit Extensions. The obligation of each Lender to honor any Request for Credit
Extension (other than a Conversion/Continuation Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of LIBO Rate
Loans) and of each LC Issuer to issue each Letter of Credit is subject to the
following conditions precedent:
(a) The
representations and warranties of the Lead Borrower and each other Loan Party
contained in Article
V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, (i) which
are qualified by materiality shall be true and correct, and (ii) which are not
qualified by materiality shall be true and correct in all material respects, in
each case, on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct, or true and correct in all
material respects, as the case may be, as of such earlier date, and except that
for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and
(b) of Section
5.05 shall be deemed to refer to the most recent consolidated
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01.
(b) No
Default shall exist or would result from such proposed Credit Extension or from
the application of the proceeds thereof.
(c) The
Administrative Agent and, if applicable, the LC Issuer or the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
Each
Request for Credit Extension (other than a Conversion/Continuation Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of LIBO Rate Loans) submitted by the Lead Borrower shall be deemed
to be a representation and warranty by the Borrowers that the conditions
specified in Sections
4.02(a) and 4.02(b) have been
satisfied on and as of the date of the applicable Credit Extension. The
conditions set forth in this Section 4.02 are for
the sole benefit of the Credit Parties but until the Required Lenders otherwise
direct the Administrative Agent to cease making Committed Loans, the Lenders
will fund their Applicable Percentage of all Loans and LC Advances and
participate in all Swing Line Loans and Letters of Credit whenever made or
issued, which are requested by the Lead Borrower and which, notwithstanding the
failure of the Loan Parties to comply with the provisions of this Article IV are agreed
to by the Administrative Agent; provided, however, that, if the
Administrative Agent has actual knowledge that any Specified Default or any
Event of Default under Section 6.13 shall
have occurred and be continuing, the Administrative Agent shall cease
making Committed Loans
unless the Required Lenders otherwise direct in writing; provided, further, that the
making of any such Loans or the issuance of any Letters of Credit shall not be
deemed a modification or waiver by any Credit Party of the provisions of this
Article IV on
any future occasion or a waiver of any rights of the Credit Parties as a result
of any such failure to comply.
77
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
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