COPIES OF ALL MATERIAL CONSENTS, LICENSES AND
APPROVALS REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY
SUCH LOAN PARTY AND THE VALIDITY AGAINST SUCH LOAN PARTY OF THE LOAN DOCUMENTS
TO WHICH IT IS A PARTY, AND SUCH CONSENTS, LICENSES AND APPROVALS SHALL BE IN
FULL FORCE AND EFFECT, OR (B) STATING THAT NO SUCH CONSENTS, LICENSES OR
APPROVALS ARE SO REQUIRED;
53
(IX)
A CERTIFICATE OF THE BORROWER CERTIFYING (A)
THAT THE CONDITIONS SPECIFIED IN SECTIONS 4.02(A) AND (B) HAVE BEEN SATISFIED,
AND (B) THAT THERE HAS BEEN NO EVENT OR CIRCUMSTANCE SINCE THE DATE OF THE
AUDITED FINANCIAL STATEMENTS THAT HAS HAD OR COULD BE REASONABLY EXPECTED TO
HAVE, EITHER INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT;
(X)
A DULY COMPLETED COMPLIANCE CERTIFICATE AS
OF THE LAST DAY OF THE FISCAL QUARTER OF THE BORROWER MOST RECENTLY ENDED PRIOR
TO THE CLOSING DATE; AND
(XI)
SUCH OTHER ASSURANCES, CERTIFICATES,
DOCUMENTS, CONSENTS OR OPINIONS AS THE ADMINISTRATIVE AGENT, THE L/C ISSUER OR
THE REQUIRED LENDERS REASONABLY MAY REQUIRE.
(B)
ANY FEES REQUIRED TO BE PAID ON OR BEFORE
THE CLOSING DATE SHALL HAVE BEEN PAID.
(C)
UNLESS WAIVED BY THE ADMINISTRATIVE AGENT,
THE BORROWER SHALL HAVE PAID ALL FEES, CHARGES AND DISBURSEMENTS OF COUNSEL TO
THE ADMINISTRATIVE AGENT TO THE EXTENT INVOICED PRIOR TO OR ON THE CLOSING DATE,
(PROVIDED THAT SUCH INVOICE SHALL NOT THEREAFTER PRECLUDE A FINAL SETTLING OF
ACCOUNTS BETWEEN THE BORROWER AND THE ADMINISTRATIVE AGENT).
(D)
THE CLOSING DATE SHALL HAVE OCCURRED ON OR
BEFORE AUGUST 31, 2004.
(E)
THERE SHALL NOT HAVE OCCURRED A MATERIAL
ADVERSE CHANGE (I) IN THE BUSINESS, ASSETS, PROPERTIES, LIABILITIES (ACTUAL OR
CONTINGENT), OPERATIONS OR FINANCIAL CONDITION OF THE PARENT, THE BORROWER AND
THEIR SUBSIDIARIES, TAKEN AS A WHOLE, SINCE DECEMBER 31, 2003 OR (II) IN THE
FACTS AND INFORMATION REGARDING SUCH ENTITIES AS REPRESENTED BY THE PARENT, THE
BORROWER OR ANY OF THEIR SUBSIDIARIES, OR ANY REPRESENTATIVES OF ANY OF THEM, TO
DATE.
(F)
THE ABSENCE OF ANY ACTION, SUIT,
INVESTIGATION OR PROCEEDING PENDING OR, TO THE ACTUAL KNOWLEDGE OF A MEMBER OF
THE EXECUTIVE MANAGEMENT OF THE PARENT, THE BORROWER OR ANY OF THEIR
SUBSIDIARIES, THREATENED, IN ANY COURT OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL
AUTHORITY THAT COULD REASONABLY BE EXPECTED TO (I) HAVE A MATERIAL ADVERSE
EFFECT ON THE BUSINESS, ASSETS, PROPERTIES, LIABILITIES (ACTUAL AND CONTINGENT),
OPERATIONS OR FINANCIAL CONDITION OF THE PARENT, THE BORROWER AND THEIR
SUBSIDIARIES, TAKEN AS A WHOLE, (II) MATERIALLY AND ADVERSELY AFFECT THE ABILITY
OF THE BORROWER OR ANY GUARANTOR TO PERFORM ITS OBLIGATIONS UNDER ANY MATERIAL
PROVISION OF THE LOAN DOCUMENTS OR (III) MATERIALLY AND ADVERSELY AFFECT THE
RIGHTS AND REMEDIES OF THE AGENTS OR THE LENDERS UNDER THE LOAN DOCUMENTS.
Without limiting the generality of the provisions of Section 9.04, for purposes
of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with,