Closing Date or to take, fulfill, or perform any other action
hereunder or under any other Loan Document, unless and until the following
conditions have been satisfied or provided for as of the Closing Date, in
Agent's sole discretion, or waived in writing by Agent:
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SECTION 3.1
LOAN AGREEMENT; LOAN DOCUMENTS.
This Agreement or counterparts hereof shall have been duly executed by, and
delivered to, Borrowers, Agent and Lenders and all Loan Documents shall remain
in full force and effect, and Agent and Lenders shall have received such
documents, instruments, agreements and legal opinions as Agent or Lenders shall
reasonably request in connection with the transactions contemplated by this
Agreement and the other Loan Documents, including the following, each in form
and substance satisfactory to Agent:
(A)
LOAN DOCUMENTS.
EACH OF THE FOLLOWING DOCUMENTS DULY EXECUTED BY
EACH PARTY THERETO:
(I)
THIS AGREEMENT;
(II)
THE NOTE;
(III)
THE FEE LETTER;
(IV)
THE SECURITY AGREEMENT AND EACH OTHER COLLATERAL DOCUMENT;
(V)
THE CONTROL AGREEMENT;
(VI)
THE NOTICE OF DIRECTION IN RESPECT OF THE 2003 LAST-OUT; AND
(VII)
THE POST-CLOSING LETTER.
(B)
INSURANCE.
SATISFACTORY EVIDENCE THAT THE INSURANCE POLICIES
REQUIRED BY SECTION 5.5 ARE IN FULL FORCE AND EFFECT.
(C)
LIENS.
EVIDENCE THAT AGENT, FOR THE BENEFIT OF THE LENDER GROUP,
HAS A VALID AND PERFECTED SECURITY INTEREST IN THE COLLATERAL (SUBJECT TO NO
OTHER LIENS OTHER THAN PERMITTED ENCUMBRANCES), INCLUDING SUCH DOCUMENTS DULY
EXECUTED BY EACH BORROWER (INCLUDING FINANCING STATEMENTS UNDER THE CODE AND
OTHER APPLICABLE DOCUMENTS UNDER THE LAWS OF ANY JURISDICTION WITH RESPECT TO
THE PERFECTION OF LIENS) AS AGENT MAY REQUEST IN ORDER TO PERFECT AGENT'S
SECURITY INTERESTS, FOR THE BENEFIT OF THE LENDER GROUP, IN THE COLLATERAL.
(D)
DEPOSIT OF EXCESS CASH.
AGENT SHALL HAVE RECEIVED EVIDENCE THAT
BORROWERS HAVE DEPOSITED EXCESS CASH (AS SUCH TERM IS DEFINED AS OF THE CLOSING
DATE), OTHER THAN NET LOAN PROCEEDS, INTO THE BLOCKED ACCOUNT.
(E)
CERTIFICATE OF GOOD STANDING.
FOR EACH BORROWER, SUCH PERSON'S
(I) GOOD STANDING CERTIFICATES (INCLUDING VERIFICATION OF TAX STATUS) IN ITS
STATE OF FORMATION AND (II) GOOD STANDING CERTIFICATES (INCLUDING VERIFICATION
OF TAX STATUS) AND CERTIFICATES OF QUALIFICATION TO CONDUCT BUSINESS IN EACH
JURISDICTION WHERE ITS OWNERSHIP OR LEASE OF PROPERTY OR THE CONDUCT OF ITS
BUSINESS REQUIRES SUCH QUALIFICATION, EACH DATED A RECENT DATE PRIOR TO THE
CLOSING DATE AND CERTIFIED BY THE APPLICABLE SECRETARY OF STATE OR OTHER
AUTHORIZED GOVERNMENTAL AUTHORITY.
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(F)
SECRETARY'S CERTIFICATES.
DULY EXECUTED ORIGINALS OF A
CERTIFICATE OF THE SECRETARY OF EACH BORROWER, DATED AS OF THE CLOSING DATE,
ATTACHING (I) THE CERTIFICATE OF INCORPORATION OR CHARTER DOCUMENTS FOR SUCH
BORROWER AND ALL AMENDMENTS THERETO AND CERTIFYING THAT SUCH CERTIFICATE OF
INCORPORATION OR CHARTER DOCUMENTS, AS APPLICABLE, AND ALL AMENDMENTS THERETO
ARE IN FULL FORCE AND EFFECT AS OF THE DATE OF THE SECRETARY'S CERTIFICATE
WITHOUT ANY OTHER MODIFICATION OR AMENDMENT, (II) THE BYLAWS FOR SUCH BORROWER
AND ALL AMENDMENTS THERETO AND CERTIFYING THAT SUCH BYLAWS AND ALL AMENDMENTS
THERETO ARE IN FULL FORCE AND EFFECT