THE AMOUNT NECESSARY TO DISCHARGE THE EXISTING SENIOR
SUBORDINATED NOTES SHALL HAVE BEEN DEPOSITED INTO ESCROW WITH THE TRUSTEE
THEREFOR ON TERMS REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT, A NOTICE
OF REDEMPTION SHALL HAVE BEEN DELIVERED TO SUCH TRUSTEE IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE THEREFOR (WHICH SHALL HAVE
38
BEEN ACKNOWLEDGED BY THE TRUSTEE AS BEING EFFECTIVE TO DISCHARGE AND CALL FOR
REDEMPTION OF ALL SUCH NOTES IN FULL), AND ALL OTHER CONDITIONS TO THE
DEFEASANCE OF ALL EXISTING SENIOR SUBORDINATED NOTES SHALL HAVE BEEN MET.
(C)
PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS.
THE LENDERS SHALL HAVE
RECEIVED (I) THE PRO FORMA BALANCE SHEET, (II) AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF HOLDINGS FOR THE 2006, 2005 AND 2004 FISCAL YEARS AND
(III) UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS OF HOLDINGS FOR EACH
QUARTERLY PERIOD ENDED SUBSEQUENT TO THE DATE OF THE LATEST APPLICABLE FINANCIAL
STATEMENTS DELIVERED PURSUANT TO CLAUSE (II) OF THIS PARAGRAPH AS TO WHICH SUCH
FINANCIAL STATEMENTS ARE AVAILABLE AND UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF HOLDINGS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007, AND SUCH
FINANCIAL STATEMENTS SHALL NOT REFLECT ANY MATERIAL ADVERSE CHANGE IN THE
CONSOLIDATED FINANCIAL CONDITION OF HOLDINGS SINCE DECEMBER 31, 2006.
(D)
APPROVALS.
ALL GOVERNMENTAL AND MATERIAL THIRD PARTY APPROVALS NECESSARY,
OR IN THE DISCRETION OF THE ADMINISTRATIVE AGENT, ADVISABLE IN CONNECTION WITH
THE REFINANCING, THE CONTINUING OPERATIONS OF THE GROUP MEMBERS AND THE
TRANSACTIONS CONTEMPLATED HEREBY, SHALL HAVE BEEN OBTAINED AND BE IN FULL FORCE
AND EFFECT, AND ALL APPLICABLE WAITING PERIODS SHALL HAVE EXPIRED WITHOUT ANY
ACTION BEING TAKEN OR THREATENED BY ANY COMPETENT AUTHORITY THAT WOULD RESTRAIN,
PREVENT OR OTHERWISE IMPOSE ADVERSE CONDITIONS ON THE REFINANCING OR THE
FINANCING CONTEMPLATED HEREBY.
(E)
FEES.
THE LENDERS AND THE AGENTS SHALL HAVE RECEIVED ALL FEES (INCLUDING
THOSE SPECIFIED IN SECTION 2.3(C)) REQUIRED TO BE PAID, AND ALL EXPENSES FOR
WHICH INVOICES HAVE BEEN PRESENTED (INCLUDING THE REASONABLE FEES AND EXPENSES
OF LEGAL COUNSEL), ON OR BEFORE THE CLOSING DATE.
ALL SUCH AMOUNTS WILL BE PAID
WITH PROCEEDS OF LOANS MADE ON THE CLOSING DATE AND WILL BE REFLECTED IN THE
FUNDING INSTRUCTIONS GIVEN BY THE BORROWER TO THE ADMINISTRATIVE AGENT ON OR
BEFORE THE CLOSING DATE.
(F)
CLOSING DATE CERTIFICATE.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A
CERTIFICATE OF EACH LOAN PARTY, DATED THE CLOSING DATE, SUBSTANTIALLY IN THE
FORM OF EXHIBIT A, WITH APPROPRIATE INSERTIONS AND ATTACHMENTS INCLUDING THE
CERTIFICATE OF INCORPORATION OF EACH LOAN PARTY THAT IS A CORPORATION CERTIFIED
BY THE RELEVANT AUTHORITY OF THE JURISDICTION OF ORGANIZATION OF SUCH LOAN PARTY
AND A LONG FORM GOOD STANDING CERTIFICATE FOR EACH LOAN PARTY FROM ITS
JURISDICTION OF ORGANIZATION.
(G)
LEGAL OPINIONS.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE EXECUTED
LEGAL OPINION OF KIRKLAND & ELLIS LLP, COUNSEL TO HOLDINGS AND ITS SUBSIDIARIES,
SUBSTANTIALLY IN THE FORM OF EXHIBIT C, WHICH LEGAL OPINION SHALL COVER SUCH
OTHER MATTERS INCIDENT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AS THE
ADMINISTRATIVE AGENT AND THE LENDERS MAY REASONABLY REQUIRE.
(H)
SOLVENCY