TO BE PAID
HEREUNDER AND INVOICED BEFORE THE CLOSING DATE SHALL HAVE BEEN PAID IN FULL IN
CASH.
(C)
PRIOR TO OR SIMULTANEOUSLY WITH THE INITIAL
BORROWING, (I) THE EQUITY CONTRIBUTIONS SHALL HAVE BEEN FUNDED IN FULL IN CASH;
AND (II) THE RECAPITALIZATION SHALL BE CONSUMMATED IN ACCORDANCE WITH THE TERMS
OF THE RECAPITALIZATION AGREEMENT (WHICH SHALL NOT HAVE BEEN AMENDED, MODIFIED
OR WAIVED PRIOR TO THE CLOSING DATE IN A MANNER MATERIAL AND ADVERSE TO THE
INTERESTS OF THE LENDERS WITHOUT THE PRIOR WRITTEN CONSENT OF THE ARRANGERS).
(D)
PRIOR TO OR SIMULTANEOUSLY WITH THE INITIAL
BORROWING OF LOANS, THE BORROWER SHALL HAVE RECEIVED (I) AT LEAST $1,400,000,000
IN GROSS CASH PROCEEDS FROM THE ISSUANCE OF THE NEW NOTES AND (II) AT LEAST
$400,000,000 IN GROSS CASH PROCEEDS FROM THE ABL LOANS MADE PURSUANT TO THE ABL
CREDIT AGREEMENT.
(E)
PRIOR TO OR SIMULTANEOUSLY WITH THE INITIAL
BORROWING OF LOANS, THE BORROWER SHALL HAVE TERMINATED THE EXISTING CREDIT
AGREEMENT AND TAKEN ALL OTHER NECESSARY ACTIONS SUCH THAT, AFTER GIVING EFFECT
TO THE TRANSACTION, (I) THE BORROWER AND ITS SUBSIDIARIES SHALL HAVE OUTSTANDING
NO INDEBTEDNESS OR PREFERRED EQUITY INTERESTS OTHER THAN (A) THE LOANS, (B) THE
NEW NOTES, (C) ABL LOANS OUTSTANDING UNDER THE ABL CREDIT AGREEMENT,
(D) INDEBTEDNESS LISTED ON SCHEDULE 7.03, AND (E) INDEBTEDNESS BETWEEN LOAN
PARTIES AND (II) THE BORROWER SHALL HAVE OUTSTANDING NO EQUITY INTERESTS (OR
SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR EQUITY INTERESTS OR RIGHTS OR
OPTIONS TO ACQUIRE EQUITY INTERESTS) OTHER THAN COMMON STOCK OWNED BY THE
INVESTORS OR MEMBERS OF MANAGEMENT OF THE BORROWER AND OTHER CO-INVESTORS
REASONABLY ACCEPTABLE TO THE ARRANGERS.
(F)
THE ARRANGERS AND THE LENDERS SHALL HAVE
RECEIVED (I) THE AUDITED FINANCIAL STATEMENTS AND THE AUDIT REPORT FOR SUCH
FINANCIAL STATEMENTS (WHICH SHALL NOT BE SUBJECT TO ANY QUALIFICATION) AND
(II) UNAUDITED CONSOLIDATED BALANCE SHEETS AND RELATED STATEMENTS OF INCOME,
STOCKHOLDERS' EQUITY AND CASH FLOWS OF THE BORROWER AND ITS SUBSIDIARIES FOR
(A) EACH SUBSEQUENT FISCAL QUARTER ENDED AT LEAST FORTY-FIVE (45) DAYS BEFORE
THE CLOSING DATE AND (B) TO THE EXTENT REASONABLY AVAILABLE AND, IN ANY EVENT,
EXCLUDING FOOTNOTES, EACH FISCAL MONTH AFTER THE MOST RECENT FISCAL PERIOD FOR
WHICH FINANCIAL STATEMENTS WERE RECEIVED BY THE ARRANGERS AND THE LENDERS AS
DESCRIBED ABOVE AND ENDED AT LEAST THIRTY (30) DAYS BEFORE THE CLOSING DATE
(COLLECTIVELY, THE "UNAUDITED FINANCIAL STATEMENTS"), WHICH FINANCIAL STATEMENTS
DESCRIBED IN CLAUSES (I) AND (II)(A) SHALL BE PREPARED IN ACCORDANCE WITH GAAP.
(G)
ON OR PRIOR TO THE DATE OF THE BORROWING OF
LOANS, EACH LOAN PARTY AND EACH OTHER SUBSIDIARY OF THE BORROWER WHICH IS AN
OBLIGEE OR OBLIGOR WITH RESPECT TO ANY INTERCOMPANY INDEBTEDNESS SHALL HAVE DULY
AUTHORIZED, EXECUTED AND DELIVERED THE INTERCOMPANY NOTE, AND THE INTERCOMPANY
NOTE SHALL BE IN FULL FORCE AND EFFECT.
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(H)
THE ARRANGERS AND THE LENDERS SHALL HAVE
RECEIVED THE PRO FORMA FINANCIAL STATEMENTS.
(I)
THE ARRANGERS AND THE LENDERS SHALL HAVE
RECEIVED A CERTIFICATE FROM A RESPONSIBLE OFFICER OF THE BORROWER TO THE EFFECT
THAT THOSE