CLOSING DATE, CERTIFIED TO BE TRUE, CORRECT AND COMPLETE BY A SENIOR
OFFICER OF BORROWER AS OF A DATE NOT MORE THAN TEN (10) DAYS PRIOR TO THE
CLOSING DATE, TOGETHER WITH A GOOD STANDING CERTIFICATE AS TO BORROWER FROM THE
SECRETARY OF STATE (OR THE EQUIVALENT THEREOF) OF MARYLAND, TO BE DATED NOT MORE
THAN THIRTY (30) DAYS PRIOR TO THE CLOSING DATE;
(F)
THE BORROWER SHALL HAVE EXECUTED A SOLVENCY CERTIFICATE
ACCEPTABLE TO THE ADMINISTRATIVE AGENT;
(G)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL CERTIFICATES,
AGREEMENTS AND OTHER DOCUMENTS AND PAPERS REFERRED TO IN THIS SECTION 3.1 AND
THE NOTICE OF BORROWING REFERRED TO IN SECTION 3.2, IF APPLICABLE, UNLESS
OTHERWISE SPECIFIED, IN SUFFICIENT COUNTERPARTS, SATISFACTORY IN FORM AND
SUBSTANCE TO THE ADMINISTRATIVE AGENT IN ITS REASONABLE DISCRETION;
(H)
THE BORROWER SHALL HAVE TAKEN ALL ACTIONS REQUIRED TO AUTHORIZE
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE PERFORMANCE THEREOF BY THE BORROWER;
(I)
THE BANKS SHALL BE SATISFIED THAT THE BORROWER IS NOT SUBJECT TO
ANY PRESENT OR CONTINGENT ENVIRONMENTAL CLAIM, AND THE BORROWER SHALL HAVE
DELIVERED A CERTIFICATE SO STATING;
(J)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, FOR ITS AND ANY
OTHER BANK'S ACCOUNT, ALL FEES DUE AND PAYABLE PURSUANT TO SECTION 2.9 HEREOF ON
OR BEFORE THE CLOSING DATE, AND THE REASONABLE AND DOCUMENTED FEES AND EXPENSES
ACCRUED THROUGH THE CLOSING DATE OF SIMPSON THACHER & BARTLETT LLP SHALL HAVE
BEEN PAID TO SIMPSON THACHER & BARTLETT LLP;
(K)
THE BORROWER SHALL HAVE DELIVERED COPIES OF ALL CONSENTS, LICENSES
AND APPROVALS, IF ANY, REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE BORROWER, AND THE VALIDITY AND ENFORCEABILITY, OF THE LOAN
DOCUMENTS, OR IN CONNECTION WITH ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY,
AND SUCH CONSENTS, LICENSES AND APPROVALS SHALL BE IN FULL FORCE AND EFFECT;
(L)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED; AND
(M)
THE BORROWER SHALL HAVE DELIVERED A CERTIFICATE IN FORM ACCEPTABLE
TO ADMINISTRATIVE AGENT SHOWING COMPLIANCE WITH THE REQUIREMENTS OF SECTION 5.8
AS OF THE CLOSING DATE.
SECTION 3.2.
Borrowings. The obligation of any Bank to make a Loan or to
participate in any Letter of Credit issued by the Fronting Bank and the
obligation of the Fronting Bank to issue a Letter of Credit or the obligation of
the Swingline Lender to make a Swingline Loan on the occasion of any Borrowing
is subject to the satisfaction of the following conditions:
(A)
RECEIPT BY THE ADMINISTRATIVE AGENT OF A NOTICE OF BORROWING AS
REQUIRED BY SECTION 2.2 OR SECTION 2.3(B)(I) OR A NOTICE OF MONEY MARKET
BORROWING AS REQUIRED BY
49
SECTION 2.4(F) OR A REQUEST TO CAUSE A FRONTING BANK TO ISSUE A LETTER OF CREDIT
PURSUANT TO SECTION 2.17;
(B)
IMMEDIATELY AFTER GIVING EFFECT TO SUCH BORROWING, THE AGGREGATE
OUTSTANDING PRINCIPAL AMOUNT OF THE LOANS PLUS THE LETTER OF CREDIT USAGE WILL
NOT EXCEED THE AGGREGATE AMOUNT OF THE COMMITMENTS;
(C)
NO DEFAULT OR EVENT OF DEFAULT SHALL