Common use of Officer’s Closing Certificate Clause in Contracts

Officer’s Closing Certificate. The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Company as of the Closing Date, substantially in the form of Schedule 4.1(f) stating that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority (A) affecting this Agreement or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Documents, which action, suit, investigation, litigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date, (ii) immediately after giving effect to this Agreement, the other Credit Documents, and all the Transactions contemplated to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Documents are true and correct, and (C) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) with each of the initial financial covenants set forth in Section 5.9 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of Xxxxx 00, 0000, (xxx) as of the Closing Date (A) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement Documents, (B) none of the Credit Parties (y) has unreasonably small capital in relation to the business in which it is or proposes to be engaged and (z) has incurred or believes that it will incur after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, (iv) each of the other conditions precedent in Section 4.1 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) attached to such certificate is a true and complete copy of the fully executed Private Placement Documents.

Officer’s Closing Certificate. The Receipt by the Administrative Agent shall have received of a certificate or certificates executed certificate, dated as of the Third Incremental Amendment Effective Date and signed by a Responsible Officer certifying on behalf of the Company as of the Closing Date, substantially in the form of Schedule 4.1(f) stating Loan Parties that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority (A) affecting this Agreement or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Documents, which action, suit, investigation, litigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date, (ii) immediately after giving effect to this Agreement, (x) any funding of the other Credit Documents, initial Borrowing under the Incremental Revolving Commitments on the Third Incremental Amendment Effective Date and all (y) the Transactions contemplated to occur funding of the Incremental Term Loan on such date, the Third Incremental Amendment Effective Date (A) no Default or Event of Default existsshall have occurred and be continuing, (B) the Loan Parties are in compliance with the financial covenants set forth in Sections 6.1 and 6.2 of the Credit Agreement, on a Pro Forma Basis, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements under the Credit Agreement and (C) all representations and warranties contained herein and of each Loan Party set forth in the other Credit Loan Documents are shall be true and correctcorrect in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, on and as of the Third Incremental Amendment Effective Date) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (Cii) the Credit Parties are in pro forma compliance (each Loan Party is Solvent before and after giving effect to this Agreement any Borrowing under the Incremental Revolving Commitments on the Third Incremental Amendment Effective Date, the Borrowing of the Incremental Term Loans and the Private Placement Debt) with each consummation of the initial financial covenants other transactions contemplated herein. For purposes of determining whether the conditions set forth in this Section 5.9 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of Xxxxx 00, 0000, (xxx) as of the Closing Date (A) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement Documents, (B) none of the Credit Parties (y) has unreasonably small capital in relation to the business in which it is or proposes to be engaged and (z) has incurred or believes that it will incur after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, (iv) each of the other conditions precedent in Section 4.1 5 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any by releasing its signature page hereto, each Incremental Revolving Lender and (v) attached each Incremental Term Loan Lender shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, such certificate is a true and complete copy of the fully executed Private Placement DocumentsIncremental Revolving Lender or such Incremental Term Loan Lender, as applicable.

Officer’s Closing Certificate. The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Company Borrower as of the Closing Date, substantially in the form of Schedule 4.1(f) Date stating that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority (A) affecting this Agreement or the other Credit Loan Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Loan Documents, which action, suit, investigation, litigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date, (ii) immediately after giving effect to this Agreement, the other Credit Loan Documents, and all the Transactions transactions contemplated to occur pursuant thereto on such datethe Closing Date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Loan Documents are true and correct, and (C) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) with each of the initial financial covenants set forth in Section 5.9 5.2.13 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of Xxxxx 00the last day of the fiscal quarter ending at least twenty (20) days preceding the Closing Date and (D) the transactions contemplated pursuant to the Loan Documents do not contravene, 0000or otherwise conflict with, the terms of any of the Credit Parties’ then current credit documentation identified in a schedule to such certificate, (xxxiii) attached thereto as a schedule is a true, correct and complete copy of the ownership chart for Borrower referencing its Affiliates and direct and indirect Subsidiaries, (iv) as of the Closing Date (A) the fair saleable value Date, there are no management agreements providing for third-party management of any of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement DocumentsProperties, (Bv) none Borrower has previously delivered to or made available to Administrative Agent a true and correct copy of all leases affecting the Properties, together with all amendments or modifications thereto or other agreements with respect to any lease or occupancy of the Credit Parties Properties, (yvi) as of the Closing Date, there are no Affiliate Agreements, (vii) since January 30, 2010, there has unreasonably small capital been no occurrence or other matter resulting in relation to the business in which it is or proposes to be engaged a Material Adverse Effect and (z) has incurred or believes that it will incur after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, (ivviii) each of the other conditions precedent in Section 4.1 3A.1 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) attached to such certificate is a true and complete copy of the fully executed Private Placement Documents.

Officer’s Closing Certificate. The Receipt by the Administrative Agent shall have received of a certificate or certificates executed certificate, dated as of the Effective Date and signed by a Responsible Officer certifying on behalf of the Company as of the Closing Date, substantially in the form of Schedule 4.1(f) stating Loan Parties that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority (A) affecting this Agreement or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Documents, which action, suit, investigation, litigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date, (ii) immediately after giving effect to this Agreement, the other Credit Documents, and all funding of the Transactions contemplated to occur initial Borrowing under the Incremental Revolving Commitments on such date, the Effective Date (A) no Default or Event of Default existsshall have occurred and be continuing, (B) the Loan Parties are in compliance with the financial covenants set forth in Sections 6.1 and 6.2 of the Credit Agreement, on a Pro Forma Basis, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements under the Credit Agreement and (C) all representations and warranties contained herein and in the other Credit Documents are true and correct, and (C) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) with of each of the initial financial covenants Loan Party set forth in Section 5.9 the Loan Documents shall be true and correct in all material respects (as evidenced through detailed calculations of other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such financial covenants representations and warranties shall be true and correct in all respects, on a schedule to such certificate) as of Xxxxx 00, 0000, (xxx) and as of the Closing Date (AEffective Date) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement Documents, (B) none of the Credit Parties (y) has unreasonably small capital in relation except to the business extent that such representations and warranties specifically refer to an earlier date, in which it is or proposes to case they shall be engaged true and correct in all material respects as of such earlier date and (zii) has incurred or believes that it will incur each Loan Party is Solvent before and after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, (iv) each any Borrowing under the Incremental Revolving Commitments on the Effective Date and the consummation of the other transactions contemplated herein. For purposes of determining whether the conditions precedent set forth in this Section 4.1 4 have been satisfied, except by releasing its signature page hereto, each Incremental Lender shall be deemed to the extent the satisfaction of any have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) attached to such certificate is a true and complete copy of the fully executed Private Placement DocumentsIncremental Lender.

Officer’s Closing Certificate. The Receipt by the Administrative Agent shall have received of a certificate or certificates executed certificate, dated as of the Initial Incremental Revolving Loan Funding Date and signed by a Responsible Officer certifying on behalf of the Company as of the Closing Date, substantially in the form of Schedule 4.1(f) stating Loan Parties that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority after giving effect to the Lake Tahoe Acquisition and the funding of the initial Borrowing under the Incremental Revolving Commitments on the Initial Incremental Revolving Loan Funding Date (A) affecting this Agreement no Event of Default shall have occurred and be continuing under Section 8.1(a), 8.1(b), 8.1(h), 8.1(j) or 8.1(i) of the other Credit DocumentsAgreement, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any the conditions specified in clauses (a) and (b) above are satisfied as of its Subsidiariesthe Initial Incremental Revolving Loan Funding Date, or any transaction contemplated by (C) the Loan Parties are in compliance with the financial covenants set forth in Sections 6.1 and 6.2 of the Credit DocumentsAgreement, on a Pro Forma Basis, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which actionthe Borrower has delivered financial statements under the Credit Agreement, suit(D) the Consolidated Leverage Ratio of the Loan Parties is at least 0.25 less than the maximum Consolidated Leverage Ratio permitted to be maintained under Section 6.2 of the Credit Agreement at such time, investigation, litigation (E) there has been no event or proceeding circumstance since the First Amendment Effective Date which has or could be reasonably be expected to have a Material Adverse Effect, Effect (as defined in the Lake Tahoe Purchase Agreement) that has not been settled, dismissed, vacated, discharged or terminated prior results in a failure of a condition precedent to the Closing DateBorrower’s obligation to consummate the Lake Tahoe Acquisition or that gives the Borrower the right (taking into account any applicable cure provisions) to terminate its obligations under the Lake Tahoe Acquisition Agreement and (F) the Borrower has at least $5,000,000 of the sum of cash on hand plus availability existing under the Aggregate Revolving Commitments, (ii) immediately after giving effect to this Agreement, the other Credit Documents, and all the Transactions contemplated to occur on such date, conditions specified in clauses (Ac) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Documents are true and correct, and (Cd) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) above have been satisfied or will be satisfied substantially simultaneously with each of the initial financial covenants set forth in Section 5.9 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of Xxxxx 00, 0000, (xxx) as of Borrowing under the Closing Date (A) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement Documents, (B) none of the Credit Parties (y) has unreasonably small capital in relation to the business in which it is or proposes to be engaged Incremental Revolving Commitments and (ziii) has incurred or believes that it will incur each Loan Party is Solvent before and after giving effect to the transactions contemplated by this Agreementinitial Borrowing under the Incremental Revolving Commitments on the Incremental Revolving Loan Funding Date, debts beyond its ability to pay such debts as they become due, (iv) each the Lake Tahoe Acquisition and the consummation of the other conditions precedent in Section 4.1 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) attached to such certificate is a true and complete copy of the fully executed Private Placement Documentstransactions contemplated herein.

Officer’s Closing Certificate. The Administrative Agent shall have ----------------------------- received a certificate or certificates executed by a Responsible Officer of the Company Borrower as of the Closing Date, substantially in form and substance satisfactory to the form Administrative Agent, attaching the computation of Schedule 4.1(fthe Consolidated Total Leverage Ratio as of September 30, 2001 (calculated to give effect to the Follow-On Offering on a Pro Forma Basis) and stating that (iA) there does not exist each Credit Party is in compliance with all existing financial obligations, (B) all governmental, shareholder and third party consents and approvals, if any, with respect to the Credit Documents and the transactions contemplated thereby have been obtained and are in full force and effect, and all applicable waiting periods shall have expired without any pending or ongoingaction that could have a Material Adverse Effect on the transactions contemplated hereby being taken by any authority, (C) no action, suit, investigation, litigation investigation or proceeding is pending or threatened in any court or before any other Governmental Authority (A) affecting this Agreement arbitrator or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) governmental instrumentality that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Documents, which if such action, suit, investigation, litigation investigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settledand no order, dismisseddecree, vacatedjudgment, discharged ruling or terminated prior to injunction restrains the Closing Dateconsummation of the transactions contemplated in the Credit Documents, (iiD) immediately after giving effect to this Agreement, the other initial Loans made and Letters of Credit Documents, and all issued on the Transactions contemplated to occur on such dateClosing Date, (A1) no Default or Event of Default exists, (B2) all representations and warranties contained herein and in the other Credit Documents are true and correct, correct in all material respects and (C3) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) on a Pro Forma Basis with each of the initial financial covenants set forth in Section 5.9 7.11 (as evidenced through detailed calculations of assuming for purposes hereof that such financial covenants on a schedule to were measured as of, and for the twelve-month period ending on, such certificatedate) as of Xxxxx 00, 0000, and (xxxE) as the computation of the Closing Date (A) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement Documents, (B) none of the Credit Parties (y) has unreasonably small capital in relation to the business in which it is or proposes to be engaged and (z) has incurred or believes that it will incur after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, (iv) each of the other conditions precedent in Section 4.1 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) Consolidated Total Leverage Ratio attached to such certificate is a true and complete copy of the fully executed Private Placement Documentscorrect in all material respects and has been prepared in accordance with GAAP applied on a consistent basis, subject to changes resulting from normal year-end audit adjustments.

Officer’s Closing Certificate. The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Company as of the Closing Date, substantially in the form of Schedule 4.1(f) stating that (i) there does not exist any pending or ongoing, action, suit, investigation, litigation or proceeding in any court or before any other Governmental Authority (A) affecting this Agreement or the other Credit Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (B) that purports to affect any Credit Party or any of its Subsidiaries, or any transaction contemplated by the Credit Documents, which action, suit, investigation, litigation or proceeding could reasonably be expected to have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date, (ii) immediately after giving effect to this Agreement, the other Credit Documents, and all the Transactions contemplated to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Documents are true and correct, and (C) the Credit Parties are in pro forma compliance (after giving effect to this Agreement and the Private Placement Debt) with each of the initial financial covenants set forth in Section 5.9 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of Xxxxx 00December 28, 00002008, (xxxiii) as of the Closing Date (A) the fair saleable value of the Credit Parties’ assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement and the Private Placement DocumentsAgreement, (B) none of the Credit Parties (y) has unreasonably small capital in relation to the business in which it is or proposes to be engaged and (z) has incurred or believes that it will incur after giving effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due, due and (iv) each of the other conditions precedent in Section 4.1 have been satisfied, except to the extent the satisfaction of any such condition is subject to the judgment or discretion of the Administrative Agent or any Lender and (v) attached to such certificate is a true and complete copy of the fully executed Private Placement DocumentsLender.