SATISFIED AND (B) EXCEPT AS SET FORTH ON SCHEDULE 4.01(A)(XIII),
THAT THERE HAS BEEN NO EVENT OR CIRCUMSTANCE SINCE THE DATE OF THE AUDITED
FINANCIAL STATEMENTS THAT HAS HAD OR COULD BE REASONABLY EXPECTED TO HAVE,
EITHER INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT ON BORROWER
AND THE GUARANTORS, TAKEN AS A WHOLE; AND INCLUDING A PRO FORMA COMPLIANCE
CERTIFICATE DEMONSTRATING COMPLIANCE WITH THE FINANCIAL COVENANTS LISTED IN
SECTION 7.11 CALCULATED AS OF MARCH 31, 2009 GIVING EFFECT TO THE TRANSACTION
AND IN RESPECT OF THE CONSOLIDATED FIXED CHARGE COVERAGE RATIO ONLY,
CONSOLIDATED INTEREST EXPENSE ON A PRO FORMA BASIS AS IF THE 2014 NOTES, THIS
AGREEMENT, AND OBLIGATIONS UNDER EXISTING CAPITALIZED LEASES HAD BEEN
OUTSTANDING DURING THE TWELVE MONTH PERIOD ENDING MARCH 31, 2009;
(XIV)
PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS OF
BORROWER AND ITS SUBSIDIARIES, TOGETHER WITH BROTMAN, DATED AS OF JULY 8, 2009,
AS AMENDED BY THE FINAL OFFERING MEMORANDUM, AND FORECASTS PREPARED BY
MANAGEMENT OF BORROWER, EACH IN FORM REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT, OF BALANCE SHEETS, INCOME STATEMENTS AND CASH FLOW
STATEMENTS ON AN ANNUAL BASIS FOR EACH YEAR THROUGH 2013;
(XV)
(A) THE ANNUAL (OR OTHER AUDITED) FINANCIAL
STATEMENTS OF EACH OF BORROWER AND ITS SUBSIDIARIES FOR THE FISCAL YEARS ENDED
2006, 2007, AND 2008, (B) THE ANNUAL (OR OTHER AUDITED) FINANCIAL STATEMENTS OF
BROTMAN FOR THE FISCAL YEAR ENDED 2008, AND (C) INTERIM UNAUDITED FINANCIAL
STATEMENTS OF EACH OF BORROWER AND ITS SUBSIDIARIES DATED AS OF THE END OF THE
MOST RECENT FISCAL QUARTER FOR WHICH FINANCIAL STATEMENTS ARE AVAILABLE;
56
(XVI)
CERTIFICATES ATTESTING TO THE SOLVENCY OF THE LOAN
PARTIES ON A CONSOLIDATED BASIS BEFORE AND AFTER GIVING EFFECT TO THE
TRANSACTION, FROM BORROWER'S CHIEF FINANCIAL OFFICER;
(XVII)
EVIDENCE THAT ALL INSURANCE REQUIRED TO BE
MAINTAINED PURSUANT TO THE LOAN DOCUMENTS HAS BEEN OBTAINED AND IS IN EFFECT,
TOGETHER WITH THE CERTIFICATES OF INSURANCE, NAMING U.S. BANK NATIONAL
ASSOCIATION, ON BEHALF OF THE LENDERS, AS AN ADDITIONAL INSURED OR LOSS PAYEE,
AS THE CASE MAY BE, UNDER ALL INSURANCE POLICIES MAINTAINED WITH RESPECT TO THE
ASSETS AND PROPERTIES OF THE LOAN PARTIES THAT CONSTITUTES COLLATERAL;
(XVIII)
CERTIFIED COPIES OF EACH OF THE RELATED DOCUMENTS,
DULY EXECUTED BY THE PARTIES THERETO, TOGETHER WITH ALL AGREEMENTS, INSTRUMENTS
AND OTHER DOCUMENTS DELIVERED IN CONNECTION THEREWITH AS THE ADMINISTRATIVE
AGENT SHALL REQUEST;
(XIX)
THE PERFECTION CERTIFICATE, DULY EXECUTED BY THE
PARTIES THERETO;
(XX)
A BORROWING BASE CERTIFICATE PREPARED AS OF
JUNE 30, 2009 DEMONSTRATING THE MAXIMUM AMOUNT OF LOANS AVAILABLE TO BORROWER;
AND
(XXI)
EVIDENCE THAT EACH EXISTING CREDIT AGREEMENT HAS
BEEN, OR CONCURRENTLY WITH THE CLOSING DATE IS BEING, TERMINATED AND ALL
OBLIGATIONS THEREON SATISFIED IN FULL AND ALL LIENS SECURING OBLIGATIONS UNDER
EACH EXISTING CREDIT AGREEMENT HAVE BEEN, OR CONCURRENTLY WITH THE CLOSING DATE
ARE BEING, RELEASED.
(B)
(I)
ALL FEES REQUIRED TO BE PAID TO THE
ADMINISTRATIVE AGENT AND THE ARRANGER ON OR BEFORE THE CLOSING DATE SHALL HAVE
BEEN PAID, INCLUDING AS CONTEMPLATED BY THE COMMITMENT LETTER, AND (II)