SECTION 3.1.
CONDITIONS TO EFFECTIVENESS.
THE OBLIGATIONS OF THE
LENDERS (INCLUDING THE SWINGLINE LENDER) TO MAKE LOANS AND THE OBLIGATION OF THE
ISSUING BANK TO ISSUE ANY LETTER OF CREDIT HEREUNDER SHALL NOT BECOME EFFECTIVE
UNTIL THE DATE ON WHICH EACH OF THE FOLLOWING CONDITIONS IS SATISFIED (OR WAIVED
IN ACCORDANCE WITH SECTION 10.2).
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(A)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER
AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE CLOSING DATE, INCLUDING REIMBURSEMENT
OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE FEES, CHARGES AND
DISBURSEMENTS OF COUNSEL TO THE ADMINISTRATIVE AGENT) REQUIRED TO BE REIMBURSED
OR PAID BY THE BORROWER HEREUNDER, UNDER ANY OTHER LOAN DOCUMENT AND UNDER ANY
AGREEMENT WITH THE ADMINISTRATIVE AGENT OR LEAD ARRANGER.
(B)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED THE
FOLLOWING:
(I)
A COUNTERPART OF THIS AGREEMENT SIGNED BY OR ON BEHALF OF EACH
PARTY HERETO OR WRITTEN EVIDENCE SATISFACTORY TO THE ADMINISTRATIVE AGENT (WHICH
MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS AGREEMENT)
THAT SUCH PARTY HAS SIGNED A COUNTERPART OF THIS AGREEMENT;
(II)
DULY EXECUTED REVOLVING CREDIT NOTES PAYABLE TO SUCH LENDER AND
THE SWINGLINE NOTE PAYABLE TO THE SWINGLINE LENDER;
(III)
THE PARENT GUARANTY AGREEMENT DULY EXECUTED BY THE PARENT
GUARANTOR;
(IV)
THE SUBSIDIARY GUARANTY AGREEMENT DULY EXECUTED BY EACH MATERIAL
SUBSIDIARY THAT IS A DOMESTIC SUBSIDIARY;
(V)
THE PLEDGE AGREEMENTS DULY EXECUTED BY EACH OWNER OF ANY INTEREST
IN ANY MATERIAL SUBSIDIARY AND SUCH DOCUMENTS AND INSTRUMENTS AS MAY BE
NECESSARY TO GIVE A FIRST PRIORITY PERFECTED SECURITY INTEREST IN THE INSTERESTS
PLEDGED THEREIN TO THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE LENDERS;
(VI)
COPIES OF DULY EXECUTED PAYOFF LETTERS, IN FORM AND SUBSTANCE
SATISFACTORY TO ADMINISTRATIVE AGENT, EXECUTED BY EACH OF THE EXISTING LENDERS
OR THE AGENT THEREOF;
(VII)
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF EACH LOAN
PARTY, ATTACHING AND CERTIFYING COPIES OF ITS BYLAWS AND OF THE RESOLUTIONS OF
ITS BOARDS OF DIRECTORS, OR PARTNERSHIP AGREEMENT OR LIMITED LIABILITY COMPANY
AGREEMENT, OR COMPARABLE ORGANIZATIONAL DOCUMENTS AND AUTHORIZATIONS,
AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS TO
WHICH IT IS A PARTY AND CERTIFYING THE NAME, TITLE AND TRUE SIGNATURE OF EACH
OFFICER OF SUCH LOAN PARTY EXECUTING THE LOAN DOCUMENTS TO WHICH IT IS A PARTY;
(VIII)
CERTIFIED COPIES OF THE ARTICLES OR CERTIFICATE OF INCORPORATION,
CERTIFICATE OF ORGANIZATION OR LIMITED PARTNERSHIP, OR OTHER REGISTERED
ORGANIZATIONAL DOCUMENTS OF EACH LOAN PARTY, TOGETHER WITH CERTIFICATES OF GOOD
STANDING OR EXISTENCE, AS MAY BE AVAILABLE FROM THE SECRETARY OF STATE OF THE
JURISDICTION OF ORGANIZATION OF SUCH LOAN PARTY AND EACH OTHER JURISDICTION
WHERE
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SUCH LOAN PARTY IS REQUIRED TO BE QUALIFIED TO DO BUSINESS AS A FOREIGN
CORPORATION;
(IX)
A FAVORABLE WRITTEN OPINION OF WALTER W. BARDENWERPER, GENERAL
COUNSEL OF THE BORROWER, ADDRESSED TO THE ADMINISTRATIVE AGENT AND EACH OF THE
LENDERS, AND COVERING SUCH MATTERS RELATING TO THE LOAN PARTIES, THE LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREIN