THE EXTENT SUCH
REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE, IN WHICH
CASE THEY SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER
DATE; PROVIDED, HOWEVER, THAT SOLELY FOR PURPOSES OF REPRESENTATIONS AND
WARRANTIES MADE ON THE CLOSING DATE, SUCH REPRESENTATIONS AND WARRANTIES SHALL
BE LIMITED IN ALL RESPECTS TO THE REPRESENTATIONS AND WARRANTIES IN SECTIONS
3.01(D), 3.02(A), 3.03, 3.10(C) AND (D), 3.11 AND 3.20 AND THE OTHER CLOSING
DATE REPRESENTATIONS.
(C)
AT THE TIME OF AND IMMEDIATELY AFTER SUCH
CREDIT EVENT (OTHER THAN ANY CREDIT EVENT OCCURRING ON THE CLOSING DATE), NO
DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower to the relevant Lenders and/or Issuing Banks on the date of such
Credit Event as to the matters specified in paragraphs (b) and (c) of this
Section 4.01.
Section 4.02.
First Credit Event.
On the Closing Date:
(A)
THIS AGREEMENT SHALL HAVE BEEN DULY EXECUTED
AND DELIVERED BY HOLDINGS AND THE BORROWER.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED, ON BEHALF OF ITSELF, THE LENDERS AND EACH ISSUING BANK, AN OPINION OF
KIRKLAND & ELLIS LLP, SPECIAL COUNSEL FOR
95
THE LOAN PARTIES, ADDRESSED TO EACH ISSUING BANK, THE ADMINISTRATIVE AGENT AND
THE LENDERS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE
AGENT.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED (I) A COPY OF THE CERTIFICATE OR ARTICLES OF INCORPORATION,
ORGANIZATION OR FORMATION, INCLUDING ALL AMENDMENTS THERETO, OF EACH LOAN PARTY,
CERTIFIED AS OF A RECENT DATE BY THE SECRETARY OF STATE OF THE STATE OF ITS
ORGANIZATION, AND, IF AVAILABLE, A CERTIFICATE AS TO THE GOOD STANDING (WHERE
RELEVANT) OF EACH LOAN PARTY AS OF A RECENT DATE, FROM SUCH SECRETARY OF STATE
OR SIMILAR GOVERNMENTAL AUTHORITY AND (II) A CERTIFICATE OF THE SECRETARY OR
ASSISTANT SECRETARY OF EACH LOAN PARTY DATED THE CLOSING DATE AND CERTIFYING (A)
THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF THE BY-LAWS OR OPERATING
(OR LIMITED LIABILITY COMPANY) AGREEMENT OF SUCH LOAN PARTY AS IN EFFECT ON THE
CLOSING DATE, (B) THAT ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF
RESOLUTIONS DULY ADOPTED BY THE BOARD OF DIRECTORS (OR EQUIVALENT BODY) OF SUCH
LOAN PARTY AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN
DOCUMENTS TO WHICH SUCH PERSON IS A PARTY AND, IN THE CASE OF THE BORROWER, THE
BORROWINGS HEREUNDER, AND THAT SUCH RESOLUTIONS HAVE NOT BEEN MODIFIED,
RESCINDED OR AMENDED AND ARE IN FULL FORCE AND EFFECT, (C) THAT (EXCEPT IN
CONNECTION WITH THE MERGER) THE CERTIFICATE OR ARTICLES OF INCORPORATION OR
ORGANIZATION OF SUCH LOAN PARTY HAVE NOT BEEN AMENDED SINCE THE DATE OF THE LAST
AMENDMENT THERETO SHOWN ON THE CERTIFICATE OF GOOD STANDING FURNISHED PURSUANT
TO CLAUSE (I) ABOVE, AND (D) AS TO THE INCUMBENCY AND SPECIMEN SIGNATURE OF EACH
OFFICER EXECUTING ANY LOAN DOCUMENT ON BEHALF OF SUCH LOAN PARTY AND
COUNTERSIGNED BY ANOTHER OFFICER AS