THE BORROWERS' OBLIGATIONS UNDER
THIS ARTICLE III SHALL SURVIVE TERMINATION OF THE AGGREGATE COMMITMENTS AND
REPAYMENT OF ALL OTHER OBLIGATIONS HEREUNDER.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
CONDITIONS OF INITIAL CREDIT EXTENSION.
THE
OBLIGATION OF EACH LENDER TO MAKE ITS INITIAL CREDIT EXTENSION HEREUNDER IS
SUBJECT TO SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(A)
THE ADMINISTRATIVE AGENT'S RECEIPT OF THE
FOLLOWING, EACH OF WHICH SHALL BE ORIGINALS OR TELECOPIES (FOLLOWED PROMPTLY BY
ORIGINALS) UNLESS OTHERWISE SPECIFIED, EACH PROPERLY EXECUTED BY A RESPONSIBLE
OFFICER OF THE SIGNING LOAN PARTY, EACH DATED THE CLOSING DATE (OR, IN THE CASE
OF CERTIFICATES OF GOVERNMENTAL OFFICIALS, A RECENT DATE BEFORE THE CLOSING
DATE) AND EACH IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT
AND EACH OF THE LENDERS:
(I)
EXECUTED COUNTERPARTS OF THIS AGREEMENT
AND THE COMPANY GUARANTY, SUFFICIENT IN NUMBER FOR DISTRIBUTION TO THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE COMPANY;
(II)
NOTES EXECUTED BY THE BORROWERS IN FAVOR
OF EACH LENDER REQUESTING NOTES;
(III)
SUCH CERTIFICATES OF RESOLUTIONS OR OTHER
ACTION, INCUMBENCY CERTIFICATES AND/OR OTHER CERTIFICATES OF RESPONSIBLE
OFFICERS OR OF THE SECRETARY OR ASSISTANT SECRETARY OF EACH LOAN PARTY AS THE
ADMINISTRATIVE AGENT MAY REQUIRE EVIDENCING THE IDENTITY, AUTHORITY AND CAPACITY
OF EACH RESPONSIBLE OFFICER THEREOF AUTHORIZED TO ACT AS A RESPONSIBLE OFFICER
IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH SUCH
LOAN PARTY IS A PARTY;
(IV)
SUCH DOCUMENTS AND CERTIFICATIONS AS THE
ADMINISTRATIVE AGENT MAY REASONABLY REQUIRE TO EVIDENCE THAT EACH LOAN PARTY IS
DULY ORGANIZED OR FORMED, AND THAT THE COMPANY IS VALIDLY EXISTING, IN GOOD
STANDING AND QUALIFIED TO ENGAGE IN BUSINESS UNDER THE LAWS OF DELAWARE AND
CALIFORNIA;
52
(V)
A FAVORABLE OPINION OF BINGHAM MCCUTCHEN
LLP, COUNSEL TO THE LOAN PARTIES, ADDRESSED TO THE ADMINISTRATIVE AGENT AND EACH
LENDER, AS TO THE MATTERS SET FORTH IN EXHIBIT K AND SUCH OTHER MATTERS
CONCERNING THE LOAN PARTIES AND THE LOAN DOCUMENTS AS THE REQUIRED LENDERS MAY
REASONABLY REQUEST;
(VI)
A CERTIFICATE OF A RESPONSIBLE OFFICER OR OF
THE SECRETARY OR ASSISTANT SECRETARY OF EACH LOAN PARTY EITHER (A) ATTACHING
COPIES OF ALL 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;
(VII)
A CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OR
OF THE SECRETARY OR ASSISTANT SECRETARY OF THE COMPANY 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;
(VIII)
A DULY COMPLETED COMPLIANCE CERTIFICATE AS OF THE
LAST DAY OF THE FISCAL QUARTER OF