AS OF THE CLOSING DATE AND
SATISFACTORY TO THE ADMINISTRATIVE AGENT ATTESTING TO THE SOLVENCY OF THE LOAN
PARTIES TAKEN AS A WHOLE BEFORE AND AFTER GIVING EFFECT TO THE TRANSACTIONS.
(O)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED EVIDENCE THAT NOTICE
OF THE TRANSACTIONS HAS BEEN GIVEN TO MOODY'S AND S&P AND SHALL HAVE RECEIVED
CONFIRMATION OF, OR NOTICE OF ANY ANNOUNCEMENT BY MOODY'S OR S&P OF ANY CHANGE
OR POSSIBLE CHANGE IN, THE BORROWER'S SENIOR SECURED DEBT RATING AS A RESULT OF
THE TRANSACTIONS.
(P)
(I) THE TRANSACTIONS SHALL HAVE BEEN CONSUMMATED ON TERMS, WITH A
STRUCTURE AND IN A MANNER REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT,
IT BEING UNDERSTOOD THAT (X) THE EQUITY ISSUANCE MAY NOT BE CONSUMMATED BY THE
CLOSING DATE, AND (Y) THE TENDER OFFER SOLICITATIONS FOR THE SENIOR SUBORDINATED
NOTES AND THE SENIOR UNSECURED NOTES WILL NOT BE CONSUMMATED UNTIL UP TO 10
BUSINESS DAYS FOLLOWING THE CLOSING DATE, (II) ALL CONDITIONS PRECEDENT TO THE
CONSUMMATION OF THE TENDER OFFER FOR THE SENIOR UNSECURED NOTES SHALL HAVE BEEN
WAIVED BY THE BORROWER EXCEPT FOR THE LAPSE OF 20 BUSINESS DAYS FROM THE
COMMENCEMENT THEREOF, (III) THE REQUISITE NUMBER OF HOLDERS SHALL HAVE CONSENTED
TO AMEND THE SENIOR UNSECURED DEBT DOCUMENTS IN A MANNER SATISFACTORY TO THE
ADMINISTRATIVE AGENT AND SUCH AMENDMENT SHALL BE IN FULL FORCE AND EFFECT, AND
(IV) THE ADMINISTRATIVE AGENT SHALL BE SATISFIED WITH THE CORPORATE AND LEGAL
STRUCTURE AND CAPITALIZATION OF EACH LOAN PARTY AND EACH OF ITS SUBSIDIARIES THE
EQUITY INTERESTS IN WHICH SUBSIDIARIES IS BEING PLEDGED PURSUANT TO THE LOAN
DOCUMENTS, INCLUDING THE TERMS AND CONDITIONS OF THE CHARTER, BYLAWS AND EACH
CLASS OF EQUITY
66
INTEREST IN EACH LOAN PARTY AND EACH SUCH SUBSIDIARY AND OF EACH AGREEMENT OR
INSTRUMENT RELATING TO SUCH STRUCTURE OR CAPITALIZATION.
(Q)
COLLATERAL ACCOUNTS.
SEPARATE COLLATERAL ACCOUNTS SHALL HAVE BEEN
ESTABLISHED WITH THE ADMINISTRATIVE AGENT OR ITS SUB-AGENT ON TERMS SATISFACTORY
TO THE ADMINISTRATIVE AGENT TO HOLD (I) FUNDS FOR THE REPAYMENT OF THE SENIOR
SUBORDINATED NOTES (THE "SENIOR SUBORDINATED NOTES ACCOUNT"), (II) FUNDS FOR THE
REPAYMENT OF THE PORTION OF THE SENIOR UNSECURED NOTES THAT ARE TENDERED ON THE
CLOSING DATE (THE "SENIOR UNSECURED NOTES ACCOUNT"), AND (III) PROCEEDS OF THE
TERM LOANS DEPOSITED TO THE COLLATERAL ACCOUNT PURSUANT TO SECTION 2.01(B)(II)
(THE "COLLATERAL ACCOUNT"), AND CASH PROCEEDS FROM THE EQUITY ISSUANCE AND CASH
ON THE BALANCE SHEET OF THE BORROWER SHALL HAVE BEEN, OR CONCURRENTLY WILL BE,
DEPOSITED INTO THE SENIOR SUBORDINATED NOTES ACCOUNT WHICH TOGETHER WITH THE
AMOUNTS DEPOSITED IN THE COLLATERAL ACCOUNT WILL BE EQUAL TO THE OUTSTANDING
PRINCIPAL, INTEREST AND TENDER AND CALL PREMIUMS REQUIRED TO REPAY THE SENIOR
SUBORDINATED NOTES IN FULL.
(R)
BORROWING REQUEST.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
A DULY COMPLETED BORROWING REQUEST FOR THE INITIAL BORROWING HEREUNDER.
The Administrative Agent shall notify the Borrower and the Lenders of the
Closing Date, and such notice shall be conclusive and binding.
Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of