Date,
(C)
that the certificate or articles of incorporation, certificate of
limited partnership or certificate of formation or other equivalent constituent
and governing documents of such Loan Party have not been amended since the date
of the last amendment thereto disclosed pursuant to clause (i) above,
(D)
as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection
herewith on behalf of such Loan Party and
(E)
as to the absence of any pending proceeding for the dissolution or
liquidation of such Loan Party or, to the knowledge of such person, threatening
the existence of such Loan Party;
(III)
A CERTIFICATE OF A DIRECTOR OR ANOTHER OFFICER AS TO THE
INCUMBENCY AND SPECIMEN SIGNATURE OF THE SECRETARY OR ASSISTANT SECRETARY OR
SIMILAR OFFICER EXECUTING THE CERTIFICATE PURSUANT TO CLAUSE (II) ABOVE; AND
(IV)
SUCH OTHER DOCUMENTS AS THE ADMINISTRATIVE AGENT, THE LENDERS AND
ANY ISSUING BANK ON THE CLOSING DATE MAY REASONABLY REQUEST (INCLUDING WITHOUT
LIMITATION, TAX IDENTIFICATION NUMBERS AND ADDRESSES).
(D)
THE ELEMENTS OF THE COLLATERAL AND GUARANTEE REQUIREMENT REQUIRED
TO BE SATISFIED ON THE CLOSING DATE SHALL HAVE BEEN SATISFIED AND THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A COMPLETED PERFECTION CERTIFICATE
DATED THE CLOSING DATE AND SIGNED BY A RESPONSIBLE OFFICER OF HOLDINGS AND THE
BORROWERS, TOGETHER WITH ALL ATTACHMENTS CONTEMPLATED THEREBY, AND THE RESULTS
OF A SEARCH OF THE UNIFORM COMMERCIAL CODE (OR EQUIVALENT) FILINGS MADE WITH
RESPECT TO THE LOAN PARTIES IN THE JURISDICTIONS CONTEMPLATED BY THE PERFECTION
CERTIFICATE AND COPIES OF THE FINANCING STATEMENTS (OR SIMILAR DOCUMENTS)
DISCLOSED BY SUCH SEARCH AND EVIDENCE REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT THAT THE LIENS INDICATED BY SUCH FINANCING STATEMENTS (OR
SIMILAR DOCUMENTS) ARE PERMITTED LIENS OR HAVE BEEN RELEASED; PROVIDED THAT, TO
THE EXTENT ANY SECURITY INTEREST IN THE INTENDED COLLATERAL OR ANY DELIVERABLE
RELATED TO THE PERFECTION OF SECURITY INTERESTS IN THE INTENDED COLLATERAL
(OTHER THAN ANY COLLATERAL THE SECURITY INTEREST IN WHICH MAY BE PERFECTED BY
THE FILING OF A UNIFORM COMMERCIAL CODE FINANCING STATEMENT OR THE DELIVERY OF
STOCK CERTIFICATES OR OTHER INSTRUMENTS REPRESENTING EQUITY INTERESTS AND THE
SECURITY AGREEMENT GIVING RISE TO THE SECURITY INTEREST THEREIN) IS NOT ABLE TO
BE PROVIDED ON THE CLOSING DATE AFTER THE BORROWERS' USE OF COMMERCIALLY
REASONABLE EFFORTS TO DO SO, SUCH REQUIREMENTS MAY BE SATISFIED AFTER THE
CLOSING DATE IN ACCORDANCE WITH SECTION 5.10.
(E)
THE MERGER SHALL HAVE BEEN CONSUMMATED OR SHALL BE CONSUMMATED
SIMULTANEOUSLY WITH OR IMMEDIATELY FOLLOWING THE CLOSING UNDER THIS AGREEMENT IN
ACCORDANCE WITH APPLICABLE LAW AND ON THE TERMS AND CONDITIONS OF THE MERGER AS
SET FORTH IN THE MERGER
89
DOCUMENTS, WITHOUT GIVING EFFECT TO ANY WAIVER OR OTHER MODIFICATION THEREOF
THAT IS MATERIALLY ADVERSE TO THE INTERESTS OF THE LENDERS WITHOUT THE PRIOR
WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT.
(F)
THE EQUITY FINANCING SHALL HAVE BEEN CONSUMMATED.
(G)
THE BORROWERS SHALL HAVE RECEIVED GROSS CASH PROCEEDS OF NOT LESS
THAN (I) $485.0 MILLION FROM THE ISSUANCE OF THE