LOAN PARTIES SHALL HAVE EXECUTED AND DELIVERED THE
SUBSTITUTION OF AGENT AND JOINDER AGREEMENT DESIGNATING THE AGENT AS THE
"REVOLVING FACILITY AGENT" UNDER THE INTERCREDITOR AGREEMENT.
(I)
FUNDING ACCOUNT.
THE AGENT SHALL HAVE RECEIVED A NOTICE SETTING
FORTH THE DEPOSIT ACCOUNT OF THE BORROWER AGENT (THE "FUNDING ACCOUNT") TO WHICH
THE AGENT IS AUTHORIZED BY THE BORROWERS TO TRANSFER THE PROCEEDS OF ANY
BORROWINGS REQUESTED OR AUTHORIZED PURSUANT TO THIS AGREEMENT.
(J)
COLLATERAL ACCESS AND BLOCKED ACCOUNT AGREEMENTS.
THE LOAN
PARTIES SHALL HAVE USED COMMERCIALLY REASONABLE EFFORTS TO (I) OBTAIN AND
DELIVER TO THE AGENT EACH COLLATERAL ACCESS AGREEMENT REQUIRED TO BE PROVIDED
PURSUANT TO SECTION 4.12 OF THE SECURITY AGREEMENT AND THE BLOCKED ACCOUNT
AGREEMENTS REQUIRED TO BE DELIVERED PURSUANT TO SECTION 2.21 AND (II) DELIVER TO
THE AGENT EACH CREDIT CARD NOTIFICATION AND DDA NOTIFICATION REQUIRED TO BE
PROVIDED PURSUANT TO SECTION 2.21.
(K)
SOLVENCY.
THE AGENT SHALL HAVE RECEIVED A CUSTOMARY CERTIFICATE
FROM THE CHIEF FINANCIAL OFFICER OF THE COMPANY CERTIFYING THAT HOLDINGS AND ITS
SUBSIDIARIES, ON A CONSOLIDATED BASIS AFTER GIVING EFFECT TO THE TRANSACTIONS TO
OCCUR ON THE EFFECTIVE DATE, ARE SOLVENT (WITHIN THE MEANING OF SECTION 3.13).
(L)
BORROWING BASE CERTIFICATE.
THE AGENT SHALL HAVE RECEIVED PRIOR
TO THE EFFECTIVE DATE A BORROWING BASE CERTIFICATE WHICH CALCULATES THE
BORROWING BASE AS OF THE LAST BUSINESS DAY OF THE MOST RECENT FISCAL MONTH ENDED
AT LEAST TEN (10) BUSINESS DAYS PRIOR TO THE EFFECTIVE DATE.
(M)
CLOSING EXCESS AVAILABILITY.
AFTER GIVING EFFECT TO ALL BORROWINGS
TO BE MADE ON THE EFFECTIVE DATE AND THE ISSUANCE OF ANY LETTERS OF CREDIT ON
THE EFFECTIVE DATE, EXCESS AVAILABILITY SHALL BE NOT LESS THAN $300,000,000.
(N)
PLEDGED STOCK; STOCK POWERS; PLEDGED NOTES.
THE AGENT (OR ITS
BAILEE) SHALL HAVE RECEIVED (I) THE CERTIFICATES REPRESENTING THE SHARES OF
CAPITAL STOCK PLEDGED PURSUANT TO THE SECURITY AGREEMENT, TOGETHER WITH AN
UNDATED STOCK POWER FOR EACH SUCH CERTIFICATE EXECUTED IN BLANK BY A DULY
AUTHORIZED OFFICER OF THE PLEDGOR THEREOF AND (II) EACH PROMISSORY NOTE (IF ANY)
PLEDGED TO THE AGENT (OR ITS BAILEE) PURSUANT TO THE
84
SECURITY AGREEMENT ENDORSED (WITHOUT RECOURSE) IN BLANK (OR ACCOMPANIED BY AN
EXECUTED TRANSFER FORM IN BLANK) BY THE PLEDGOR THEREOF.
(O)
PERFECTION CERTIFICATE; FILINGS, REGISTRATIONS AND RECORDINGS.
THE AGENT SHALL HAVE RECEIVED A COMPLETED PERFECTION CERTIFICATE DATED THE
EFFECTIVE DATE AND SIGNED BY A RESPONSIBLE OFFICER OF THE COMPANY, TOGETHER WITH
ALL ATTACHMENTS CONTEMPLATED THEREBY.
EACH DOCUMENT (INCLUDING ANY UCC
FINANCING STATEMENT) REQUIRED BY THE COLLATERAL DOCUMENTS OR UNDER LAW OR
REASONABLY REQUESTED BY THE AGENT TO BE FILED, REGISTERED OR RECORDED IN ORDER
TO CREATE IN FAVOR OF THE AGENT, FOR THE BENEFIT OF THE AGENT, THE CO-COLLATERAL
AGENTS, THE LENDERS AND OTHER HOLDERS OF SECURED OBLIGATIONS, A PERFECTED LIEN
ON THE COLLATERAL DESCRIBED THEREIN, PRIOR AND SUPERIOR IN RIGHT TO ANY OTHER
PERSON (OTHER THAN WITH RESPECT TO LIENS EXPRESSLY PERMITTED BY SECTION 6.02),
SHALL BE IN PROPER FORM FOR FILING, REGISTRATION OR RECORDATION.
THE AGENT, ON
BEHALF OF THE