LOAN
DOCUMENTS HAVE NOT SUBSEQUENTLY BEEN AMENDED, SUPPLEMENTED, OR MODIFIED (OTHER
THAN THE AMENDMENTS, IF ANY, DELIVERED TO THE LENDER ON OR PRIOR TO THE CLOSING
DATE) AND CONSTITUTE THE COMPLETE UNDERSTANDING AMONG THE PARTIES THERETO IN
RESPECT OF THE MATTERS AND TRANSACTIONS COVERED THEREBY.
THE REPRESENTATIONS
AND WARRANTIES OF THE BORROWERS AND THEIR AFFILIATES CONTAINED IN THE SENIOR
LOAN DOCUMENTS WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN MADE OR
DEEMED TO BE MADE.
SECTION 4.14.
SOLVENCY.
BOTH BEFORE AND AFTER GIVING EFFECT TO THIS AGREEMENT,
THE OTHER LOAN DOCUMENTS AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
BY THE SENIOR CREDIT AGREEMENT, THE BORROWERS AND THEIR SUBSIDIARIES ON A
CONSOLIDATED BASIS ARE SOLVENT.
AS USED HEREIN, "SOLVENT" SHALL MEAN THAT THE
BORROWERS AND THEIR SUBSIDIARIES HAVE ASSETS AS A GOING CONCERN HAVING A FAIR
VALUE IN EXCESS OF THEIR LIABILITIES, HAVE ASSETS AS A GOING CONCERN HAVING A
FAIR VALUE IN EXCESS OF THE AMOUNT REQUIRED TO PAY THEIR LIABILITIES ON EXISTING
INDEBTEDNESS AS SUCH INDEBTEDNESS BECOMES ABSOLUTE AND MATURED, AND HAS, AND
EXPECTS TO CONTINUE TO HAVE, ACCESS TO ADEQUATE CAPITAL FOR THE CONDUCT OF THEIR
BUSINESSES AND THE ABILITY TO PAY THEIR INDEBTEDNESS FROM TIME TO TIME INCURRED
IN CONNECTION WITH THE OPERATION OF THEIR BUSINESSES AS SUCH INDEBTEDNESS
MATURES.
ARTICLE V
CONDITIONS PRECEDENT
The agreement of the Lender to make the Loan on the Closing Date is subject to
the satisfaction of, or waiver by the Lender of, the following conditions
precedent concurrently with the closing of the transactions hereunder:
SECTION 5.01.
LOAN DOCUMENTS.
EACH OF THE LOAN DOCUMENTS SHALL HAVE BEEN DULY
EXECUTED AND DELIVERED BY THE RESPECTIVE PARTIES THERETO, SHALL BE IN FULL FORCE
AND EFFECT AND SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE LENDER.
THE
LENDER SHALL HAVE RECEIVED A FULLY EXECUTED COPY OF EACH SUCH DOCUMENT.
SECTION 5.02.
CORPORATE ACTIONS.
ALL ACTION NECESSARY FOR THE VALID EXECUTION,
DELIVERY AND PERFORMANCE BY EACH OF THE BORROWERS OF THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE SENIOR LOAN DOCUMENTS TO WHICH EACH OF THEM IS OR IS TO
BECOME A PARTY SHALL HAVE BEEN DULY AND EFFECTIVELY TAKEN, AND EVIDENCE THEREOF
SATISFACTORY TO THE LENDER SHALL HAVE BEEN PROVIDED TO THE LENDER.
SECTION 5.03.
OPINION OF COUNSEL.
THE LENDER SHALL HAVE RECEIVED A FAVORABLE
LEGAL OPINION ADDRESSED TO THE LENDER, DATED AS OF THE CLOSING DATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE LENDER, FROM MARTIN DODD, GENERAL COUNSEL TO THE
BORROWERS.
SECTION 5.04.
PAYMENT OF CLOSING FEES AND EXPENSES.
THE BORROWERS SHALL HAVE
PAID TO THE LENDER ALL CLOSING FEES AND EXPENSES PAYABLE BY THE BORROWERS
HEREUNDER.
SECTION 5.05.
NO MATERIAL ADVERSE CHANGE.
THE LENDER SHALL BE SATISFIED THAT
THERE SHALL HAVE OCCURRED NO MATERIAL ADVERSE CHANGE IN THE BUSINESS, ASSETS,
RESULTS OF OPERATIONS, FINANCIAL CONDITION OR PROSPECTS OF THE BORROWERS AND
THEIR SUBSIDIARIES TAKEN AS A WHOLE SINCE MAY 31, 2006.
SECTION 5.06.
NO LITIGATION.
OTHER THAN AS SET FORTH ON SCHEDULE 4.10 TO THE
SENIOR CREDIT AGREEMENT,