AMOUNT ARISING PRIOR TO THE DATE WHICH IS 365 DAYS BEFORE THE DATE ON WHICH SUCH
LENDER NOTIFIES THE BORROWER OF SUCH EVENT OR CIRCUMSTANCE.
35
SECTION 3.
CONDITIONS PRECEDENT
3.1
Conditions to Effectiveness.
The effectiveness of this Agreement is subject to the satisfaction of the
following conditions:
A.
CREDIT AND ORGANIZATIONAL DOCUMENTS.
THE
BORROWER SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE ADMINISTRATIVE AGENT ON
BEHALF OF EACH LENDER THE FOLLOWING:
(I)
SUFFICIENT COPIES OF THIS AGREEMENT
ORIGINALLY EXECUTED AND DELIVERED BY THE BORROWER FOR EACH LENDER;
(II)
COPIES OF THE ORGANIZATIONAL DOCUMENTS,
DATED A RECENT DATE PRIOR TO THE EFFECTIVE DATE, CERTIFIED AS OF THE EFFECTIVE
DATE (OR A RECENT DATE PRIOR TO THE EFFECTIVE DATE) BY THE APPROPRIATE
GOVERNMENTAL OFFICIAL OR THE SECRETARY OR AN ASSISTANT SECRETARY OF THE
BORROWER, AS APPLICABLE;
(III)
RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE
BORROWER APPROVING AND AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF
THE LOAN DOCUMENTS AND CERTIFIED AS OF THE EFFECTIVE DATE BY THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE BORROWER AS BEING IN FULL FORCE AND EFFECT WITHOUT
MODIFICATION OR AMENDMENT;
(IV)
SIGNATURE AND INCUMBENCY CERTIFICATES OF THE
OFFICERS OF THE BORROWER EXECUTING THE LOAN DOCUMENTS ON BEHALF OF THE BORROWER;
(V)
A GOOD STANDING CERTIFICATE OR CERTIFICATE
OF EXISTENCE, AS APPLICABLE, FROM THE SECRETARY OF STATE (OR SIMILAR OFFICIAL)
FROM THE JURISDICTION OF FORMATION OF THE BORROWER, CERTIFIED AS OF THE
EFFECTIVE DATE (OR A RECENT DATE PRIOR TO THE EFFECTIVE DATE) (THE MATTERS
REFERENCED IN SUBSECTIONS 3.1A(II)-(V) TO BE ADDRESSED IN A SECRETARY'S
CERTIFICATE SUBSTANTIALLY IN THE FORM OF EXHIBIT VII);
(VI)
A CERTIFICATE FROM AN OFFICER OF THE BORROWER
SUBSTANTIALLY IN THE FORM OF EXHIBIT VIII, IN FORM AND SUBSTANCE SATISFACTORY TO
THE ADMINISTRATIVE AGENT, TO THE EFFECT THAT ALL REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE TRUE, CORRECT AND
COMPLETE (OTHER THAN ANY SUCH REPRESENTATION OR WARRANTY THAT EXPRESSLY RELATES
TO AN EARLIER DATE, IN WHICH CASE SUCH REPRESENTATION OR WARRANTY SHALL HAVE
BEEN TRUE, CORRECT AND COMPLETE AS OF SUCH EARLIER DATE); THAT THE BORROWER AND
ITS SUBSIDIARIES ARE NOT IN VIOLATION OF ANY OF THE COVENANTS CONTAINED IN THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT NO EVENT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD RESULT FROM THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THAT WOULD CONSTITUTE AN EVENT OF DEFAULT OR A
POTENTIAL EVENT OF DEFAULT (EXCLUDING A POTENTIAL EVENT OF DEFAULT UNDER SECTION
7.13);
(VII)
A CERTIFICATE FROM THE CHIEF FINANCIAL OFFICER
OF THE BORROWER ATTESTING THAT, BEFORE AND IMMEDIATELY AFTER GIVING EFFECT TO
THE TRANSACTION, THE BORROWER IS AND WILL BE SOLVENT; AND
36
(VIII)
SUCH OTHER DOCUMENTS AS THE ADMINISTRATIVE AGENT
ON BEHALF OF THE LENDERS MAY REASONABLY REQUEST.
B.
OPINIONS OF COUNSEL.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED ORIGINALLY EXECUTED COPIES OF ONE OR MORE FAVORABLE
WRITTEN OPINIONS OF (I) BRIAN J. SMITH, SENIOR VICE PRESIDENT AND GENERAL
COUNSEL OF THE BORROWER, AND