THE PARENT AND THE BORROWER IS, AND THE
CREDIT PARTIES, TAKEN AS A WHOLE, ARE SOLVENT AFTER GIVING EFFECT TO THE INITIAL
LOANS AND LETTERS OF CREDIT AND THE PAYMENT OF ALL ESTIMATED LEGAL, ACCOUNTING
AND OTHER FEES RELATED HERETO AND THERETO.
(F)
NO MATERIAL ADVERSE EFFECT.
THE
ADMINISTRATIVE AGENT SHALL BE SATISFIED THAT, SINCE THE DATE OF THE MOST RECENT
AUDITED FINANCIAL STATEMENTS OF THE PARENT AND ITS SUBSIDIARIES, NO EVENTS OR
CONDITIONS SHALL HAVE OCCURRED THAT HAVE HAD, OR COULD REASONABLY BE EXPECTED TO
HAVE, A MATERIAL ADVERSE EFFECT.
(G)
PAYMENT OF FEES AND EXPENSES.
THE
ADMINISTRATIVE AGENT SHALL BE SATISFIED THAT ALL AMOUNTS DUE AND PAYABLE TO THE
ADMINISTRATIVE AGENT, THE SOLE LEAD ARRANGER AND THE LENDERS PURSUANT HERETO OR
WITH REGARD TO THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT
LIMITATION, THE FEES REQUIRED TO BE PAID PURSUANT TO THAT CERTAIN FEE LETTER
DATED
40
AS OF APRIL 22, 2004 AMONG THE PARENT, THE ADMINISTRATIVE AGENT AND THE SOLE
LEAD ARRANGER) HAVE BEEN OR ARE SIMULTANEOUSLY BEING PAID.
(H)
COMMITMENT LETTER.
EACH OF THE TERMS AND
CONDITIONS SET FORTH IN THE COMMITMENT LETTER SHALL HAVE BEEN SATISFIED OR
WAIVED IN WRITING BY THE ADMINISTRATIVE AGENT.
(I)
NO DEFAULT.
AT THE TIME OF AND
IMMEDIATELY AFTER GIVING EFFECT TO THE LOANS, NO DEFAULT OR EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING.
(J)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (EXCEPT TO THE
EXTENT SUCH REPRESENTATIONS AND WARRANTIES ARE OTHERWISE QUALIFIED BY
MATERIALITY IN WHICH CASE THEY SHALL BE TRUE AND CORRECT IN ALL RESPECTS) ON AND
AS OF THE EFFECTIVE DATE (UNLESS STATED TO RELATE SOLELY TO AN EARLIER DATE, IN
WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF SUCH EARLIER DATE).
(K)
SENIOR UNSECURED NOTES.
THE SENIOR
UNSECURED NOTES SHALL HAVE BEEN ISSUED CONTEMPORANEOUSLY WITH THE EXECUTION AND
DELIVERY OF THE CREDIT DOCUMENT IN AMOUNTS AND ON TERMS REASONABLY SATISFACTORY
TO THE ADMINISTRATIVE AGENT.
(L)
INITIAL PUBLIC OFFERING.
THE PARENT
INITIAL PUBLIC OFFERING SHALL HAVE OCCURRED IN AMOUNTS AND ON TERMS REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT.
(M)
APPROVALS.
ALL GOVERNMENTAL AUTHORITY AND
MATERIAL THIRD PARTY CONSENTS OR APPROVALS NECESSARY, OR IN THE DISCRETION OF
THE ADMINISTRATIVE AGENT, ADVISABLE IN CONNECTION WITH THE TRANSACTIONS AND THE
CONTINUING OPERATIONS OF THE PARENT, THE BORROWER AND THE SUBSIDIARIES SHALL
HAVE BEEN OBTAINED AND BE IN FULL FORCE AND EFFECT.
(N)
LITIGATION.
NO LITIGATION BY ANY PERSON
SHALL BE PENDING OR, TO EITHER THE PARENT'S OR THE BORROWER'S KNOWLEDGE,
THREATENED WITH RESPECT TO THE TRANSACTION OR ANY DOCUMENTATION EXECUTED IN
CONNECTION THEREWITH OR WHICH THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS
SHALL DETERMINE WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(O)
OFFICER'S CERTIFICATE.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED, WITH COPIES FOR EACH OF THE LENDERS, A CERTIFICATE OF
A RESPONSIBLE OFFICER TO THE EFFECT THAT