PARTY, (D) SUCH DOCUMENTS AND CERTIFICATIONS AS THE AGENT MAY
REASONABLY REQUIRE TO EVIDENCE THAT EACH LOAN PARTY IS DULY ORGANIZED OR FORMED,
AND THAT EACH LOAN PARTY IS VALIDLY EXISTING, IN GOOD STANDING AND QUALIFIED TO
ENGAGE IN BUSINESS IN EACH JURISDICTION WHERE ITS OWNERSHIP, LEASE OR OPERATION
OF PROPERTIES OR THE CONDUCT OF ITS BUSINESS REQUIRES SUCH QUALIFICATION, AND
(E) A FAVORABLE OPINION OF COUNSEL TO THE LOAN PARTIES, ADDRESSED TO THE AGENT
AND THE LENDERS AS TO THE MATTERS ADDRESSED IN EXHIBIT F ATTACHED HERETO.
4.01.2.
FEES.
ANY FEES REQUIRED TO BE PAID ON OR BEFORE THE CLOSING
DATE SHALL HAVE BEEN PAID.
4.01.3.
CLOSING DATE.
THE CLOSING DATE SHALL HAVE OCCURRED ON OR BEFORE
FEBRUARY 28, 2010.
4.01.4.
EXISTING REVOLVER.
THE TERMINATION OF THE EXISTING REVOLVER.
4.01.5.
PURCHASE AGREEMENT.
THE RECEIPT AND SATISFACTORY REVIEW BY THE
LENDERS OF THE PURCHASE AGREEMENT.
4.01.6.
ACQUISITION INFORMATION.
SATISFACTORY REVIEW BY THE AGENT AND
LENDERS OF THE FINAL FORM, SUBSTANCE AND TERMS AND CONDITIONS OF THE
ACQUISITION, INCLUDING THE BORROWER'S PROPOSED ORGANIZATIONAL AND LEGAL
STRUCTURE, FINAL PROJECTIONS, PURCHASE ALLOCATION AND ACCOUNTING AND ALL OTHER
MATTERS RELATED TO THE ACQUISITION.
Section 4.02.
Condition To Funding Date.
The obligations of each Lender
to make any advances of proceeds of the Loans and the obligations of the Issuing
Lender to issue any Letters of Credit
44
hereunder are subject to the reasonable satisfaction on or before the Funding
Date of the following conditions precedent:
4.02.1.
FUNDING SUBMISSIONS.
THE AGENT'S RECEIPT OF THE FOLLOWING EACH
PROPERLY EXECUTED BY AN AUTHORIZED OFFICER OF THE SIGNING LOAN PARTY, EACH DATED
ON THE FUNDING DATE AND EACH IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE AGENT AND ITS COUNSEL, (A) A CERTIFICATE SIGNED BY AN AUTHORIZED OFFICER OF
THE BORROWER CERTIFYING THE ABSENCE OF ANY CONTINUING DEFAULTS OR EVENTS OF
DEFAULT, (B) A DULY COMPLETED CLOSING CERTIFICATE, SIGNED BY A AUTHORIZED
OFFICER OF THE BORROWER CERTIFYING COMPLIANCE WITH SECTIONS 4.02.3, 4.02.4 AND
4.02.5 OF THIS AGREEMENT, (C) EVIDENCE THAT ALL INSURANCE REQUIRED TO BE
MAINTAINED BY THE TERMS OF THE CREDIT DOCUMENTS IS IN EFFECT, AND (D) SUCH OTHER
ASSURANCES, CERTIFICATES, DOCUMENTS, CONSENTS OR OPINIONS AS THE AGENT, THE
ISSUING LENDER, OR THE REQUIRED LENDERS REASONABLY MAY REQUIRE.
4.02.2.
CREDIT PARTY EXPENSES.
THE BORROWER SHALL HAVE PAID IN FULL ALL
CREDIT PARTY EXPENSES TO THE EXTENT INVOICED PRIOR TO OR ON THE FUNDING DATE.
4.02.3.
SENIOR LEVERAGE RATIO.
AS OF THE FUNDING DATE THE SENIOR
LEVERAGE RATIO OF THE LOAN PARTIES SHALL NOT EXCEED 1.5 TO 1.0.
4.02.4.
DEBT CAPITALIZATION RATIO.
ON THE FUNDING DATE THE BORROWER'S
DEBT CAPITALIZATION RATIO SHALL NOT EXCEED 0.5 TO 1.0.
4.02.5.
MINIMUM EQUITY.
THE BORROWER SHALL HAVE CONTRIBUTED NOT LESS
THAN ONE HUNDRED MILLION DOLLARS ($100,000,000.00) IN CASH TO FINANCE THE
ACQUISITION.
4.02.6.
ACQUISITION DATE.
THE FUNDING DATE SHALL NOT OCCUR PRIOR TO THE
DATE OF CLOSING AND CONSUMMATION OF THE ACQUISITION.
4.02.7.
SUBSIDIARIES.
ANY PERSON TO BECOME A SUBSIDIARY OF THE BORROWER
AS A RESULT OF THE ACQUISITION SHALL