GALLAGHER LLP, SPECIAL
NEW YORK COUNSEL TO THE BORROWER AND EXCHANGE SUB, COVERING SUCH MATTERS
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY AS REASONABLY REQUESTED BY THE
ADMINISTRATIVE AGENT, SUCH OPINION TO BE IN SUBSTANTIALLY IN THE FORM OF
EXHIBIT F HERETO;
(K)
TRANSACTION DOCUMENTS.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED TRUE AND COMPLETE COPIES OF ALL TRANSACTION DOCUMENTS;
(L)
WEEKLY REPORT.
THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED A WEEKLY REPORT ISSUED ON OR PRIOR TO THE DATE OF THE
PROPOSED BORROWING WHICH DEMONSTRATES, INTER ALIA, THAT THE AMOUNT TO BE
BORROWED BY THE BORROWER, TAKEN TOGETHER WITH THE TOTAL OUTSTANDINGS, WILL
31
NOT CAUSE THE TOTAL OUTSTANDINGS TO EXCEED THE TOTAL COMMITMENT NOR RESULT IN
THE OCCURRENCE OF AN ASSET COVERAGE SHORTFALL;
(M)
TERMINATION OF BRIDGE CREDIT FACILITY.
THE
BRIDGE CREDIT FACILITY SHALL HAVE BEEN TERMINATED AND ALL AMOUNTS OUTSTANDING
THEREUNDER SHALL HAVE BEEN REPAID IN FULL.
(N)
PRO FORMA FINANCIAL STATEMENT.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A CONSOLIDATED STATEMENT OF ASSETS AND
LIABILITIES OF THE BORROWER AT JUNE 30, 2009, PREPARED ON A PRO FORMA BASIS AND
GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENT AND
THE ASSET EXCHANGE AGREEMENT.
(O)
ADDITIONAL INFORMATION.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED FROM THE BORROWER, SUCH FINANCIAL AND DISCLOSURE
INFORMATION REGARDING THE LOAN PARTIES AS THE ADMINISTRATIVE AGENT MAY DEEM, IN
ITS SOLE AND ABSOLUTE DISCRETION, NECESSARY AND ADEQUATE.
6.2
All Loans.
The obligation of each Lender to advance each Borrowing
(including, without limitation, the initial Borrowing) hereunder to the Borrower
is further subject to the conditions that:
(A)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE 7 HEREOF ARE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF THE ADVANCE OF SUCH
BORROWING WITH THE SAME FORCE AND EFFECT AS IF MADE BY THE BORROWER ON AND AS OF
SUCH DATE; PROVIDED, HOWEVER, THAT THOSE REPRESENTATIONS AND WARRANTIES
EXPRESSLY REFERRING TO ANOTHER DATE SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH DATE.
(B)
NO DEFAULT.
NO EVENT SHALL HAVE OCCURRED
AND BE CONTINUING, OR WOULD RESULT FROM THE BORROWING, WHICH CONSTITUTES AN
EVENT OF DEFAULT.
(C)
RECEIPT OF REQUEST FOR BORROWING.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A DULY COMPLETED REQUEST FOR BORROWING.
(D)
NO ASSET COVERAGE SHORTFALL.
NO ASSET
COVERAGE SHORTFALL SHALL EXIST, EITHER PRIOR TO OR AFTER GIVING EFFECT TO THE
PROPOSED BORROWING.
(E)
NO DELAY IN TIMING OF DELIVERY OF FINANCIAL
STATEMENTS.
THE BORROWER SHALL NOT HAVE RECEIVED THE CONSENT OF THE SECURITIES
EXCHANGE COMMISSION (THE "SEC") TO THE DELAYED DELIVERY TO THE SEC OF FINANCIAL
REPORTS ON FORM 10-K OR FORM 10-Q PURSUANT TO THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED (THE "SECURITIES EXCHANGE ACT"), PROVIDED, HOWEVER, THAT
IMMEDIATELY UPON DELIVERY BY THE BORROWER OF SUCH FINANCIAL REPORTS THIS
CONDITION SHALL BE IMMEDIATELY SATISFIED.
7.
REPRESENTATIONS AND WARRANTIES.
To induce the Credit Parties to provide the financial accommodations hereunder,
the Borrower represents and warrants to each of the Credit Parties