AS APPLICABLE, OF
EACH BORROWER AUTHORIZING (I) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT, THE NOTES, THE PERMITTED CAPITAL LEASE FACILITY, AND ANY RELATED
AGREEMENTS, (COLLECTIVELY THE "DOCUMENTS") AND (II) THE GRANTING BY EACH
BORROWER OF THE SECURITY INTERESTS IN AND LIENS UPON THE COLLATERAL IN EACH CASE
CERTIFIED BY THE SECRETARY OR AN ASSISTANT SECRETARY OF EACH BORROWER AS OF THE
SECOND RESTATED CLOSING DATE; AND, SUCH CERTIFICATE SHALL STATE THAT THE
RESOLUTIONS THEREBY CERTIFIED HAVE NOT BEEN AMENDED, MODIFIED, REVOKED OR
RESCINDED AS OF THE DATE OF SUCH CERTIFICATE;
(D)
INCUMBENCY CERTIFICATES OF BORROWERS.
AGENT SHALL HAVE RECEIVED A
CERTIFICATE OF THE SECRETARY OR AN ASSISTANT SECRETARY OF EACH BORROWER, DATED
THE SECOND RESTATED CLOSING DATE, AS TO THE INCUMBENCY AND SIGNATURE OF THE
OFFICERS OF EACH BORROWER EXECUTING THIS AGREEMENT, THE OTHER DOCUMENTS, ANY
CERTIFICATE OR OTHER DOCUMENTS TO BE DELIVERED BY IT PURSUANT HERETO, TOGETHER
WITH EVIDENCE OF THE INCUMBENCY OF SUCH SECRETARY OR ASSISTANT SECRETARY;
(E)
CERTIFICATES.
AGENT SHALL HAVE RECEIVED A COPY OF THE ARTICLES OR
CERTIFICATE OF INCORPORATION OR ANALOGOUS DOCUMENT OF EACH BORROWER AND ALL
AMENDMENTS THERETO, CERTIFIED BY THE SECRETARY OF STATE OR OTHER APPROPRIATE
OFFICIAL OF ITS JURISDICTION OF INCORPORATION OR ORGANIZATION TOGETHER WITH
COPIES OF THE BY-LAWS OR ANALOGOUS DOCUMENT OF EACH BORROWER AND ALL AGREEMENTS
OF EACH BORROWER'S SHAREHOLDERS OR MEMBERS, AS APPLICABLE, CERTIFIED AS ACCURATE
AND COMPLETE BY THE SECRETARY OF EACH BORROWER;
(F)
GOOD STANDING CERTIFICATES.
AGENT SHALL HAVE RECEIVED GOOD STANDING
CERTIFICATES OR SIMILAR DOCUMENT FOR EACH BORROWER DATED NOT MORE THAN TEN (10)
DAYS PRIOR TO THE SECOND RESTATED CLOSING DATE, ISSUED BY THE SECRETARY OF STATE
OR OTHER APPROPRIATE OFFICIAL OF EACH BORROWER'S JURISDICTION OF INCORPORATION
OR ORGANIZATION AND EACH JURISDICTION WHERE THE CONDUCT OF EACH BORROWER'S
BUSINESS ACTIVITIES OR THE OWNERSHIP OF ITS PROPERTIES NECESSITATES
QUALIFICATION;
(G)
LEGAL OPINION.
AGENT SHALL HAVE RECEIVED THE EXECUTED LEGAL OPINION
(UPON WHICH THE LENDERS SHALL BE PERMITTED TO RELY) OF BORROWERS' COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO AGENT WHICH SHALL COVER SUCH MATTERS INCIDENT
TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE NOTES, THE OTHER
DOCUMENTS AND RELATED AGREEMENTS AS AGENT MAY REASONABLY REQUIRE AND EACH
BORROWER HEREBY AUTHORIZES AND DIRECTS SUCH COUNSEL TO DELIVER SUCH OPINIONS TO
AGENT AND LENDERS;
76
(H)
NO LITIGATION.
(I) NO LITIGATION, INVESTIGATION OR PROCEEDING BEFORE OR
BY ANY ARBITRATOR OR GOVERNMENTAL BODY SHALL BE CONTINUING OR THREATENED AGAINST
ANY BORROWER OR AGAINST THE OFFICERS OR DIRECTORS OF ANY BORROWER (A) IN
CONNECTION WITH THIS AGREEMENT, THE OTHER DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY AND WHICH, IN THE REASONABLE OPINION OF AGENT, IS DEEMED
MATERIAL OR (B) WHICH COULD, IN THE REASONABLE OPINION OF AGENT, HAVE A MATERIAL
ADVERSE EFFECT; AND (II) NO INJUNCTION, WRIT, RESTRAINING ORDER OR OTHER ORDER
OF ANY NATURE MATERIALLY ADVERSE TO ANY BORROWER OR THE CONDUCT OF ITS BUSINESS
OR INCONSISTENT WITH THE DUE CONSUMMATION OF THE TRANSACTIONS SHALL HAVE BEEN
ISSUED BY ANY GOVERNMENTAL BODY;
(I)
FINANCIAL CONDITION