AGENT EVIDENCING WHETHER EACH SUCH MORTGAGED PROPERTY IS IN AN AREA
DESIGNATED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY AS HAVING SPECIAL FLOOD OR
MUD SLIDE HAZARDS (A "FLOOD HAZARD PROPERTY") AND WHETHER THE COMMUNITY IN WHICH
SUCH MORTGAGED PROPERTY IS LOCATED IS PARTICIPATING IN THE NATIONAL FLOOD
INSURANCE PROGRAM, (B) FOR EACH FLOOD HAZARD PROPERTY, THE APPLICABLE LOAN
PARTY'S WRITTEN ACKNOWLEDGMENT OF RECEIPT OF WRITTEN NOTIFICATION FROM THE
COLLATERAL AGENT AS TO THE FACT THAT SUCH MORTGAGED PROPERTY IS A FLOOD HAZARD
PROPERTY AND AS TO WHETHER THE COMMUNITY IN WHICH EACH SUCH FLOOD HAZARD
PROPERTY IS LOCATED IS PARTICIPATING IN THE NATIONAL FLOOD INSURANCE PROGRAM,
AND (C) FOR EACH FLOOD HAZARD PROPERTY, COPIES OF THE APPLICABLE LOAN PARTY'S
APPLICATION FOR A FLOOD INSURANCE POLICY PLUS PROOF OF PREMIUM PAYMENT, AND A
DECLARATION PAGE CONFIRMING THAT FLOOD INSURANCE HAS BEEN ISSUED NAMING THE
COLLATERAL AGENT AS SOLE LOSS PAYEE ON BEHALF OF THE SECURED PARTIES;
(IV)
EVIDENCE OF THE INSURANCE REQUIRED BY THE TERMS OF THE
MORTGAGES (AS AMENDED BY THE MORTGAGE AMENDMENTS);
(V)
PAYMENT IN FULL OF ALL COSTS, EXPENSES AND FEES PAYABLE TO THE
AGENTS IN CONNECTION WITH THE DELIVERABLES SET FORTH IN THIS SECTION 8 IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF SECTION 9.05(A) OF THE AMENDED
CREDIT AGREEMENT THAT ARE INVOICED AND SENT IN WRITING TO THE COMPANY NOT LATER
THAN 3 BUSINESS DAYS PRIOR TO THE END OF SUCH 90-DAY PERIOD (OR THE END OF ANY
EXTENDED PERIOD, IF APPLICABLE); AND
(VI)
AN AMENDMENT TO OR REPLACEMENT OF THAT CERTAIN BLOCKED ACCOUNT
CONTROL AGREEMENT, DATED AS OF JUNE 1, 2007, MADE BY AND AMONG FIFTH THIRD BANK,
BERRY AND BANK OF AMERICA, N.A., AS COLLATERAL AGENT.
(B)
PROMPTLY AFTER THE CONSUMMATION OF THE SPECIFIED ASSET SALE,
THE COMPANY SHALL DELIVER TO THE ADMINISTRATIVE AGENT AN OFFICER'S CERTIFICATE
FROM A FINANCIAL OFFICER OF THE COMPANY DEMONSTRATING THE AGGREGATE PRINCIPAL
AMOUNT OF INDEBTEDNESS UNDER THE REVOLVING FACILITY THAT THE
9
COMPANY CAN INCUR UNDER THE FIRST PRIORITY NOTES, THE TERM LOAN CREDIT AGREEMENT
AND THE SECOND LIEN NOTES, WHICH CERTIFICATE SHALL INCLUDE REASONABLY DETAILED
BACKUP CALCULATIONS, IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE
ADMINISTRATIVE AGENT.
IN THE EVENT THAT SUCH CERTIFICATE RELATES TO AN AMOUNT
THAT IS LESS THAN THE PRINCIPAL AMOUNT OF THE REVOLVING FACILITY COMMITMENTS AT
SUCH TIME, THEN FROM TIME TO TIME THEREAFTER THE COMPANY MAY DELIVER TO THE
ADMINISTRATIVE AGENT A SUPPLEMENTAL CERTIFICATE MEETING THE DESCRIPTION IN THE
PREVIOUS SENTENCE DEMONSTRATING THE ABILITY TO INCUR AN AMOUNT GREATER THAN THE
AMOUNT STATED IN SUCH PRIOR CERTIFICATE UP TO THE AGGREGATE PRINCIPAL AMOUNT OF
REVOLVING FACILITY COMMITMENTS.
SECTION 9.
CONFIRMATION OF REPRESENTATIONS AND WARRANTIES
.
(A)
THE COMPANY HEREBY REPRESENTS AND WARRANTS, BOTH ON AND AS OF
THE DATE HEREOF AND ON AND AS OF THE AMENDMENT EFFECTIVE DATE, THAT ALL
REPRESENTATIONS AND WARRANTIES SET FORTH IN THE LOAN DOCUMENTS ARE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS, IN EACH CASE, WITH THE SAME EFFECT AS THOUGH
MADE ON AND AS