BORROWER
AND THE ADMINISTRATIVE AGENT IN THE JURISDICTIONS LISTED ON SCHEDULE 6.3 IN FORM
AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE BORROWER, THE OTHER
LOAN PARTIES AND THE ADMINISTRATIVE AGENT HEREBY INSTRUCT SUCH COUNSEL TO
DELIVER SUCH LEGAL OPINIONS.
6.4.
NOTICE OF BORROWING.
PRIOR TO THE MAKING OF
EACH SENIOR SUBORDINATED INTERIM LOAN, THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED A NOTICE OF BORROWING (WHETHER IN WRITING OR BY TELEPHONE) MEETING THE
REQUIREMENTS OF SECTION 2.3.
6.5.
EQUITY INVESTMENTS.
EQUITY INVESTMENTS,
WHICH, TO THE EXTENT CONSTITUTING STOCK OTHER THAN COMMON STOCK, SHALL BE ON
TERMS AND CONDITIONS AND PURSUANT TO DOCUMENTATION REASONABLY SATISFACTORY TO
THE JOINT LEAD ARRANGERS AND BOOKRUNNERS TO THE EXTENT MATERIAL TO THE INTERESTS
OF THE LENDERS, IN AN AMOUNT NOT LESS THAN THE MINIMUM EQUITY AMOUNT SHALL HAVE
BEEN MADE.
6.6.
CLOSING CERTIFICATES.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED A CERTIFICATE OF THE LOAN PARTIES, DATED THE CLOSING
DATE, SUBSTANTIALLY IN THE FORM OF EXHIBIT F, WITH
67
appropriate insertions, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each Loan Party, and attaching the
documents referred to in Section 6.7.
6.7.
AUTHORIZATION OF PROCEEDINGS OF EACH LOAN PARTY.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A COPY OF THE RESOLUTIONS, IN FORM AND
SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT, OF THE BOARD OF DIRECTORS OR
OTHER MANAGERS OF EACH LOAN PARTY (OR A DULY AUTHORIZED COMMITTEE THEREOF)
AUTHORIZING (A) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS
(AND ANY AGREEMENTS RELATING THERETO) TO WHICH IT IS A PARTY AND (B) IN THE CASE
OF THE BORROWER, THE EXTENSIONS OF CREDIT CONTEMPLATED HEREUNDER.
6.8.
FEES.
THE AGENTS SHALL HAVE RECEIVED THE FEES IN THE AMOUNTS
PREVIOUSLY AGREED IN WRITING BY THE AGENTS TO BE RECEIVED ON THE CLOSING DATE
AND ALL EXPENSES (INCLUDING THE REASONABLE FEES, DISBURSEMENTS AND OTHER CHARGES
OF COUNSEL) PAYABLE BY THE LOAN PARTIES FOR WHICH INVOICES HAVE BEEN PRESENTED
PRIOR TO THE CLOSING DATE SHALL HAVE BEEN PAID.
6.9.
REPRESENTATIONS AND WARRANTIES.
ON THE CLOSING DATE,
REPRESENTATIONS AND WARRANTIES MADE BY THE LOAN PARTIES IN SECTION 8.1(A),
SECTION 8.2, SECTION 8.5 AND SECTION 8.7, AS THEY RELATE TO THE LOAN PARTIES AT
SUCH TIME, SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS.
6.10.
SOLVENCY CERTIFICATE.
ON THE CLOSING DATE, THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED A CERTIFICATE FROM AN AUTHORIZED OFFICER OF THE
BORROWER TO THE EFFECT THAT AFTER GIVING EFFECT TO THE CONSUMMATION OF THE
TRANSACTIONS, THE BORROWER ON A CONSOLIDATED BASIS WITH ITS SUBSIDIARIES IS
SOLVENT.
6.11.
MERGER.
CONCURRENTLY WITH THE INITIAL CREDIT EVENT HEREUNDER, THE
MERGER SHALL HAVE BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE
ACQUISITION AGREEMENT (OR THE LEAD ARRANGERS SHALL BE REASONABLY SATISFIED WITH
THE ARRANGEMENTS IN PLACE FOR THE CONSUMMATION OF THE MERGER REASONABLY PROMPTLY
AFTER THE INITIAL CREDIT EVENT HEREUNDER AND SHALL HAVE RECEIVED CONFIRMATION
FROM REPRESENTATIVES OF THE BORROWER THAT SUCH ACTIONS SHALL BE TAKEN PROMPTLY
AFTER THE INITIAL CREDIT EVENT HEREUNDER), WITHOUT