EACH APPROPRIATE JURISDICTION AND OFFICE UNDER THE UNIFORM
COMMERCIAL CODE;
(XIV)
A CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT, CERTIFYING THAT
(A) THE OBLIGATIONS AND THE SECOND LIEN NOTES ARE PERMITTED "SENIOR DEBT" UNDER
(AND AS DEFINED IN) THE EXISTING SENIOR SUBORDINATED INDENTURE (INCLUDING A
CERTIFICATION AS TO THE AMOUNT OF INDEBTEDNESS BEING REFINANCED UNDER THE
EXISTING CREDIT AGREEMENT WHICH CONSTITUTES INDEBTEDNESS INCURRED UNDER THE
COVERAGE RATIO EXCEPTION (AS DEFINED IN THE SENIOR SUBORDINATED DEBT
DOCUMENTS)), (B) NO DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THE EXISTING
SENIOR SUBORDINATED DEBT DOCUMENTS OR WOULD RESULT THEREUNDER AFTER GIVING
EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS AND THE SECOND LIEN NOTE DOCUMENTS, AND (C) THE SECOND LIEN NOTE
DOCUMENTS ARE EFFECTIVE AS OF THE CLOSING DATE;
(XV)
DEFINITIVE COPIES OF EACH OF THE SECOND LIEN NOTE DOCUMENTS, DULY
EXECUTED BY THE PARTIES THERETO, TOGETHER WITH ALL OTHER AGREEMENTS, INSTRUMENTS
AND OTHER DOCUMENTS DELIVERED IN CONNECTION THEREWITH AS THE ADMINISTRATIVE
AGENT SHALL REQUEST;
(XVI)
A DULY COMPLETED COMPLIANCE CERTIFICATE IN FORM AND DETAIL
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE LENDERS, SIGNED BY A
RESPONSIBLE OFFICER, AS OF THE LAST DAY OF THE FISCAL YEAR OF THE BORROWERS
ENDED APRIL 30, 2009 (BASED UPON THE ANNUAL FINANCIAL STATEMENTS FOR THE FISCAL
YEAR ENDING APRIL 30, 2009), AFTER GIVING EFFECT TO (I) THE LOANS MADE HEREUNDER
ON THE CLOSING DATE AND (II) THE SECOND LIEN NOTES, SIGNED BY
67
A RESPONSIBLE OFFICER, EVIDENCING PRO FORMA COMPLIANCE WITH EACH OF THE
FINANCIAL COVENANTS SET FORTH IN SECTION 7.11(B) AND (C) HEREOF (ASSUMING SUCH
FINANCIAL COVENANTS WERE IN EFFECT ON APRIL 30, 2009); AND
(XVII)
EVIDENCE THAT THE BORROWERS SHALL HAVE RECEIVED NET CASH PROCEEDS
FROM THE SECOND LIEN NOTES OF AT LEAST $168 MILLION, AND THE TERMS AND
CONDITIONS OF THE SECOND LIEN NOTES (INCLUDING TERMS AND CONDITIONS RELATING TO
THE INTEREST RATE, FEES, AMORTIZATION, MATURITY, SECURITY, COVENANTS, DEFAULTS
AND REMEDIES) SHALL BE AS SET FORTH IN THE SECOND LIEN NOTES OFFERING MEMORANDUM
OR OTHERWISE SATISFACTORY TO THE ADMINISTRATIVE AGENT.
(B)
ANY FEES AND EXPENSES REQUIRED TO BE PAID TO THE ADMINISTRATIVE
AGENT, THE JOINT ARRANGERS AND/OR THE LENDERS ON OR BEFORE THE CLOSING DATE
SHALL HAVE BEEN PAID.
(C)
THE BORROWERS SHALL HAVE PAID ALL FEES, CHARGES AND DISBURSEMENTS
OF COUNSEL (INCLUDING ANY LOCAL COUNSEL) TO THE ADMINISTRATIVE AGENT (DIRECTLY
TO SUCH COUNSEL IF REQUESTED BY THE ADMINISTRATIVE AGENT) TO THE EXTENT INVOICED
PRIOR TO OR ON THE CLOSING DATE.
Without limiting the generality of the provisions of Section 9.04, for purposes
of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to