to require such assignment and delegation
cease to apply.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1
Closing.
The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, L.L.P. at 10:00 a.m. on September 29, 2006,
or on such other place, date and time as the parties hereto shall mutually
agree.
SECTION 5.2
Conditions to Closing and Initial Extensions of Credit.
The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(A)
EXECUTED LOAN DOCUMENTS.
THIS AGREEMENT, A REVOLVING CREDIT NOTE
IN FAVOR OF EACH REVOLVING CREDIT LENDER REQUESTING A REVOLVING CREDIT NOTE, A
SWINGLINE NOTE IN FAVOR OF THE SWINGLINE LENDER (IF REQUESTED THEREBY), TOGETHER
WITH ANY OTHER APPLICABLE LOAN DOCUMENTS, SHALL HAVE BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED TO THE ADMINISTRATIVE AGENT BY THE PARTIES THERETO, SHALL
BE IN FULL FORCE AND EFFECT AND NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST
HEREUNDER OR THEREUNDER.
(B)
CLOSING CERTIFICATES; ETC.
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED EACH OF THE FOLLOWING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ADMINISTRATIVE AGENT:
(I)
OFFICER'S CERTIFICATE OF THE BORROWER.
A CERTIFICATE FROM A
RESPONSIBLE OFFICER OF THE BORROWER TO THE EFFECT THAT (A) ALL REPRESENTATIONS
AND WARRANTIES OF THE BORROWER AND ITS SUBSIDIARIES CONTAINED IN THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS ARE TRUE, CORRECT AND COMPLETE; (B) NEITHER THE
BORROWER NOR ANY OF ITS SUBSIDIARIES IS IN VIOLATION OF ANY OF THE COVENANTS
CONTAINED IN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; (C) AFTER GIVING
EFFECT TO
45
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, NO DEFAULT OR EVENT OF DEFAULT
HAS OCCURRED AND IS CONTINUING; (D) EACH CREDIT PARTY HAS SATISFIED EACH OF THE
CONDITIONS SET FORTH IN SECTION 5.2 AND SECTION 5.3; (E) THE BORROWER AND EACH
OF ITS SUBSIDIARIES ARE EACH SOLVENT; (F) THE BORROWER'S PAYABLES ARE CURRENT
AND NOT PAST DUE; (G) THE FINANCIAL PROJECTIONS PREVIOUSLY DELIVERED TO THE
ADMINISTRATIVE AGENT REPRESENT GOOD FAITH ESTIMATES (UTILIZING REASONABLE
ASSUMPTIONS) OF THE FINANCIAL CONDITION AND OPERATIONS OF THE BORROWER AND ITS
SUBSIDIARIES; AND (H) ATTACHED THERETO ARE CALCULATIONS EVIDENCING COMPLIANCE ON
A PRO FORMA BASIS WITH THE COVENANTS CONTAINED IN ARTICLE IX.
(II)
CERTIFICATE OF SECRETARY OF EACH CREDIT PARTY.
A CERTIFICATE OF
A RESPONSIBLE OFFICER OF EACH CREDIT PARTY CERTIFYING AS TO THE INCUMBENCY AND
GENUINENESS OF THE SIGNATURE OF EACH OFFICER OF SUCH CREDIT PARTY EXECUTING LOAN
DOCUMENTS TO WHICH IT IS A PARTY AND CERTIFYING THAT ATTACHED THERETO IS A TRUE,
CORRECT AND COMPLETE COPY OF (A) THE ARTICLES OR CERTIFICATE OF INCORPORATION OR
FORMATION OF SUCH CREDIT PARTY AND ALL AMENDMENTS THERETO, CERTIFIED AS OF A
RECENT DATE BY THE APPROPRIATE GOVERNMENTAL AUTHORITY IN ITS JURISDICTION OF
INCORPORATION OR FORMATION, (B) THE BYLAWS OR OTHER GOVERNING DOCUMENT OF SUCH
CREDIT PARTY AS IN EFFECT ON THE CLOSING DATE, (C) RESOLUTIONS DULY