OF
THE DATE OF SUCH BORROWING OR ISSUANCE, BEFORE AND AFTER GIVING EFFECT TO SUCH
BORROWING OR ISSUANCE AND TO THE APPLICATION OF THE PROCEEDS THEREFROM, AS
THOUGH MADE ON AND AS OF SUCH DATE (EXCEPT TO THE EXTENT ANY SUCH REPRESENTATION
OR WARRANTY EXPRESSLY RELATES TO AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATION AND WARRANTY SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH EARLIER DATE);
(B)
NO EVENT HAS OCCURRED AND IS CONTINUING, OR WOULD RESULT FROM SUCH
BORROWING OR ISSUANCE OR FROM THE APPLICATION OF THE PROCEEDS THEREFROM, THAT
CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT AND SUCH BORROWING OR ISSUANCE
WOULD NOT RESULT IN A VIOLATION OF THE AMOUNT OF SECURED INDEBTEDNESS PERMITTED
UNDER THE SECOND PRIORITY DEBT DOCUMENTS; AND
68
(C)
AFTER GIVING EFFECT TO SUCH BORROWING OR ISSUANCE THE BORROWING BASE AMOUNT
SHALL BE EQUAL TO OR GREATER THAN THE SUM OF (I) THE TOTAL REVOLVING EXPOSURES,
(II) THE OUTSTANDING TRANCHE 1 TERM LOANS, (III) IF PRIOR TO THE BORROWING BASE
DATE, ZERO AND, IF ON OR AFTER THE BORROWING BASE DATE, THE OUTSTANDING TRANCHE
2 TERM LOANS AND (IV) THE OUTSTANDING TRANCHE 3 TERM LOANS.
SECTION 4.03.
BORROWING BASE DATE.
THE "BORROWING BASE DATE" WILL OCCUR ON THE
FIRST DATE ON WHICH THE FOLLOWING CONDITIONS HAVE BEEN SATISFIED:
(A)
THE FINANCIAL STATEMENT DELIVERY DATE SHALL HAVE OCCURRED.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A FAVORABLE LEGAL OPINION OF
EACH OF (I) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, COUNSEL TO THE BORROWER
AND (II) ROBERT SARI, GENERAL COUNSEL OF THE BORROWER, IN EACH CASE ADDRESSED TO
THE ADMINISTRATIVE AGENT AND THE LENDERS AND DATED AS OF SUCH DATE, COVERING
SUCH MATTERS RELATING TO THE LOAN PARTIES, THIS AGREEMENT, THE OTHER SENIOR LOAN
DOCUMENTS AND THE SENIOR COLLATERAL AS THE ADMINISTRATIVE AGENT MAY REASONABLY
REQUEST, AND OTHERWISE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT.
THE
BORROWER HEREBY REQUESTS SUCH COUNSEL TO DELIVER SUCH OPINIONS.
(C)
THE COLLATERAL AND GUARANTEE REQUIREMENT SHALL HAVE BEEN SATISFIED IN
RESPECT OF HOLDINGS AND ITS SUBSIDIARIES AND THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED (I) A COMPLETED PERFECTION CERTIFICATE DATED AS OF SUCH DATE AND SIGNED
BY AN EXECUTIVE OFFICER OR FINANCIAL OFFICER TOGETHER WITH ALL ATTACHMENTS
CONTEMPLATED THEREBY, INCLUDING THE RESULTS OF A SEARCH OF THE UNIFORM
COMMERCIAL CODE (OR EQUIVALENT) FILINGS MADE WITH RESPECT TO HOLDINGS AND ITS
SUBSIDIARIES IN THE JURISDICTIONS CONTEMPLATED BY THE PERFECTION CERTIFICATE AND
COPIES OF THE FINANCING STATEMENTS (OR SIMILAR DOCUMENTS) DISCLOSED BY SUCH
SEARCH AND (II) EVIDENCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT
THAT THE LIENS DISCLOSED BY SUCH SEARCH ARE PERMITTED BY SECTION 6.02 OR HAVE
BEEN RELEASED.
(D)
EACH SUBSIDIARY LOAN PARTY SHALL HAVE ENTERED INTO A WRITTEN INSTRUMENT
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT PURSUANT TO WHICH IT
CONFIRMS THAT THE SENIOR COLLATERAL DOCUMENTS TO WHICH IT IS PARTY WILL CONTINUE
TO APPLY IN RESPECT OF THIS AGREEMENT AND THE SENIOR OBLIGATIONS (AS SUCH TERM
IS DEFINED IN RESPECT OF THE PERIOD