This excerpt taken from the AKS 8-K filed Feb 23, 2007.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions Precedent to Initial Loans. Subject to Section 10.1.11, In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrower hereunder, until the date (Closing Date) that each of the following conditions has been satisfied:
(a) Notes shall have been executed by Borrower and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto.
(b) Agent shall have received executed copies of all filings or recordations necessary to perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received a certificate or certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer or the Treasurer of Borrower certifying that, after giving effect to the initial Loans and transactions hereunder, (i) Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 are true and correct; and (iv) Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(d) Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligors Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person executing the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing.
(e) Agent shall have received a written opinion of Weil, Gotshal & Manges LLP, and Borrowers general counsel, in form and substance satisfactory to Agent.
(f) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligors jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligors jurisdiction of organization and each jurisdiction where such Obligors conduct of business or ownership of Property necessitates qualification.
(g) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Borrower, together with, with respect to property insurance in respect of property constituting Collateral, loss payable and additional insured endorsements naming Agent as loss payee and additional insured, as applicable, all in compliance with the Loan Documents.
(h) Agent shall have (i) received (A) a pro forma consolidated balance sheet of Borrower dated as of the Closing Date reflecting no material adverse change from the most recent pro forma consolidated balance sheet of Borrower delivered to Agent, (B) financial projections of Borrower evidencing Borrowers ability to comply with the financial covenants set forth herein on a pro forma basis and (C) interim consolidated financial statements for Borrower dated as of a date not more than 30 days prior to the Closing Date, in each case in form and substance reasonably satisfactory to Agent and (ii) completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination and environmental due diligence (including environmental reports), in all cases, with results reasonably satisfactory to Agent. No material adverse change in the financial condition of any Obligor or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2005. Since December 31, 2005 there has been no material disruption of or material adverse change in conditions in the financial, banking or syndication markets that Agent, in its discretion, deems material in connection with the syndication of the Revolving Commitments.
(i) Borrower shall have paid all fees and expenses to be paid to Agent and Lenders on the Closing Date.
(j) Agent shall have received a Borrowing Base Certificate prepared as of January 31, 2007. Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the payment by Borrower of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability shall be at least $100,000,000.
(k) Agent shall have received an officers certificate demonstrating in reasonable detail, and setting forth the calculations necessary to verify, that the Obligations constitute a Permitted Credit Facility under (and as defined in) each indenture governing any of the Existing Senior Notes.
(l) Borrower shall have obtained all Governmental Authority and other third party consents and approvals as may be reasonably necessary or appropriate to execute the Loan Documents and perform their obligations hereunder and thereunder.
6.2. Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation to or for the benefit of Borrower, unless the following conditions are satisfied:
(a) No Default or Event of Default shall exist at the time of, or result from, such funding, issuance or grant;
(b) The representations and warranties of each Obligor in the Loan Documents shall be true and correct in all material respects (without giving effect to any materiality qualifier contained therein) on the date of, and upon giving effect to, such funding, issuance or grant (except for representations and warranties that expressly relate to an earlier date); and
(c) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.
Each request (or deemed request) by Borrower for funding of a Loan, issuance of a Letter of Credit or grant of an accommodation shall constitute a representation by Borrower that the foregoing conditions are satisfied on the date of such request and on the date of such funding, issuance or grant. As an additional condition to any funding, issuance or grant, Agent shall have received such other information and documents as it reasonably deems appropriate in connection therewith.
6.3. Limited Waiver of Conditions Precedent. If Agent, Issuing Bank or Lenders fund any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Bank and Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of conditions or otherwise.