4.01. Conditions of Making of Loans. The obligation of each Lender to
make its Loans hereunder is subject to satisfaction of the following conditions
precedent:
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(A)
THE ADMINISTRATIVE AGENT'S RECEIPT OF THE
FOLLOWING, EACH OF WHICH SHALL BE ORIGINALS OR FACSIMILES (FOLLOWED PROMPTLY BY
ORIGINALS) UNLESS OTHERWISE SPECIFIED, EACH PROPERLY EXECUTED BY A RESPONSIBLE
OFFICER OF THE SIGNING LOAN PARTY, EACH IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND ITS LEGAL COUNSEL:
(I)
EXECUTED COUNTERPARTS OF THIS AGREEMENT,
EACH GUARANTY AND THE INTERCREDITOR AGREEMENT;
(II)
A NOTE EXECUTED BY THE BORROWER IN FAVOR
OF EACH LENDER THAT HAS REQUESTED A NOTE AT LEAST TWO BUSINESS DAYS IN ADVANCE
OF THE CLOSING DATE;
(III)
EACH COLLATERAL DOCUMENT SET FORTH ON
SCHEDULE 1.01B, DULY EXECUTED BY EACH LOAN PARTY THERETO, TOGETHER WITH:
(A)
certificates, if any, representing the Pledged
Equity referred to therein accompanied by undated stock powers executed in blank
and instruments evidencing the Pledged Debt indorsed in blank, and
(B)
evidence that all other actions, recordings
and filings that the Administrative Agent may deem reasonably necessary to
satisfy the Collateral and Guarantee Requirement shall have been taken,
completed or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent;
(IV)
SUCH CERTIFICATES OF RESOLUTIONS OR OTHER
ACTION, INCUMBENCY CERTIFICATES AND/OR OTHER CERTIFICATES OF RESPONSIBLE
OFFICERS OF EACH LOAN PARTY AS THE ADMINISTRATIVE AGENT MAY REASONABLY REQUIRE
EVIDENCING THE IDENTITY, AUTHORITY AND CAPACITY OF EACH RESPONSIBLE OFFICER
THEREOF AUTHORIZED TO ACT AS A RESPONSIBLE OFFICER IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH SUCH LOAN PARTY IS A PARTY OR IS
TO BE A PARTY ON THE CLOSING DATE;
(V)
OPINION FROM ROPES & GRAY LLP, COUNSEL TO
THE LOAN PARTIES SUBSTANTIALLY IN THE FORM OF EXHIBIT I;
(VI)
A CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER
OF THE BORROWER CERTIFYING THAT THERE HAS BEEN NO CHANGE, EFFECT, EVENT OR
OCCURRENCE SINCE JANUARY 28, 2006, THAT HAS HAD OR COULD REASONABLY BE EXPECTED
TO RESULT IN A MATERIAL ADVERSE CHANGE;
(VII)
A CERTIFICATE ATTESTING TO THE SOLVENCY OF THE
LOAN PARTIES (TAKEN AS A WHOLE) AFTER GIVING EFFECT TO THE TRANSACTION, FROM THE
CHIEF FINANCIAL OFFICER OF THE BORROWER;
(VIII)
EVIDENCE THAT ALL INSURANCE (INCLUDING TITLE
INSURANCE) REQUIRED TO BE MAINTAINED PURSUANT TO THE LOAN DOCUMENTS HAS BEEN
OBTAINED AND IS IN EFFECT AND THAT THE ADMINISTRATIVE AGENT HAS BEEN NAMED AS
LOSS PAYEE UNDER EACH INSURANCE POLICY WITH RESPECT TO SUCH INSURANCE AS TO
WHICH THE ADMINISTRATIVE AGENT SHALL HAVE REASONABLY REQUESTED TO BE SO NAMED;
AND
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(IX)
CERTIFIED COPIES OF THE RECAPITALIZATION
AGREEMENT AND THE ABL CREDIT AGREEMENT, IN EACH CASE DULY EXECUTED BY THE
PARTIES THERETO, TOGETHER WITH ALL MATERIAL AGREEMENTS, INSTRUMENTS AND OTHER
DOCUMENTS DELIVERED IN CONNECTION THEREWITH AS THE ADMINISTRATIVE AGENT SHALL
REASONABLY REQUEST, EACH INCLUDING CERTIFICATION BY A RESPONSIBLE OFFICER OF THE
BORROWER THAT SUCH DOCUMENTS ARE IN FULL FORCE AND EFFECT AS OF THE CLOSING
DATE.
(B)
ALL FEES AND EXPENSES REQUIRED