included in financial statements prepared in accordance with
GAAP, (iv) liabilities or obligations arising under Governmental Approvals or
contracts to which the Company or any of its Subsidiaries is a party or
otherwise subject and (v) liabilities or obligations incurred after the most
recently delivered financial statements and specifically permitted to be
incurred under this Agreement.
ARTICLE IV
CONDITIONS
Section 4.01
Effective Date.
The obligations of the Lenders to make
Loans and of the Issuing Lender to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM
EACH PARTY HERETO EITHER (I) A COUNTERPART OF THIS AGREEMENT SIGNED ON BEHALF OF
SUCH PARTY OR (II) WRITTEN EVIDENCE SATISFACTORY TO THE ADMINISTRATIVE AGENT
(WHICH MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS
AGREEMENT) THAT SUCH PARTY HAS SIGNED A COUNTERPART OF THIS AGREEMENT.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A FAVORABLE WRITTEN
OPINION (ADDRESSED TO THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
ISSUING LENDER AND THE LENDERS AND DATED THE EFFECTIVE DATE) OF BRACEWELL &
GUILIANI, L.L.P., COUNSEL FOR THE COMPANY, AND OF FEES & BURGESS, P.C., LOCAL
ALABAMA COUNSEL FOR THE COMPANY, BOTH IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND REQUIRED LENDERS, AND COVERING SUCH
OTHER MATTERS RELATING TO THE LOAN PARTIES, THE LOAN DOCUMENTS OR THE
TRANSACTIONS AS THE REQUIRED LENDERS SHALL REASONABLY REQUEST. THE COMPANY
HEREBY REQUESTS SUCH COUNSEL TO DELIVER SUCH OPINION.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH DOCUMENTS AND
CERTIFICATES AS THE ADMINISTRATIVE AGENT OR ITS COUNSEL MAY REASONABLY REQUEST
RELATING TO THE ORGANIZATION, EXISTENCE AND GOOD STANDING OF EACH LOAN PARTY,
THE AUTHORIZATION OF THE TRANSACTIONS AND ANY OTHER LEGAL MATTERS RELATING TO
THE LOAN PARTIES, THIS AGREEMENT OR THE TRANSACTIONS, ALL IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND ITS COUNSEL.
(D)
INTENTIONALLY DELETED.
(E)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER
AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE EFFECTIVE DATE, INCLUDING, TO THE
EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES
(INCLUDING REASONABLE LEGAL FEES) REQUIRED TO BE REIMBURSED OR PAID BY ANY LOAN
PARTY HEREUNDER OR UNDER ANY LOAN DOCUMENTS.
(F)
ALL MATERIAL GOVERNMENTAL AND THIRD PARTY APPROVALS NECESSARY OR,
IN THE DISCRETION OF THE ADMINISTRATIVE AGENT, ADVISABLE IN CONNECTION WITH THE
FINANCING CONTEMPLATED
48
HEREBY AND THE CONTINUING OPERATIONS OF THE BORROWERS AND ITS SUBSIDIARIES SHALL
HAVE BEEN OBTAINED AND BE IN FULL FORCE AND EFFECT.
(G)
THE LENDERS SHALL HAVE RECEIVED (I) AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE COMPANY AND ITS SUBSIDIARIES FOR THE TWO MOST RECENT FISCAL
YEARS ENDED PRIOR TO THE EFFECTIVE DATE AS TO WHICH SUCH FINANCIAL STATEMENTS
ARE AVAILABLE AND (II) SATISFACTORY UNAUDITED INTERIM CONSOLIDATED FINANCIAL
STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES FOR EACH FISCAL QUARTERLY PERIOD
ENDED SUBSEQUENT TO THE DATE OF THE LATEST FINANCIAL