Common use of CONDITIONS OF BORROWING Clause in Contracts

CONDITIONS OF BORROWING. On the Closing Date: (a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02). (b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date. (c) On the Closing Date, no Default or Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall have received, on behalf of itself, the Lenders, a favorable written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A), in each case dated the Closing Date. (e) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity), (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (f) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b), and (c) of this Section 4.01. (g) Contemporaneously with the closing, the Administrative Agent shall have received all Fees, all fees payable under the Fee Letter and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (h) The Administrative Agent shall have received duly executed counterparts of this Agreement from each party hereto. (i) (i) the Administrative Agent shall have received duly executed counterparts of each Security Document required to be executed at Closing from each party thereto and (ii) the Security Documents shall be in full force and effect on the Closing Date and the Collateral Agent on behalf of the Secured Parties shall have a perfected security interest in the Collateral of the type and priority described in each Security Document. (j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral Agent). (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (m) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of Reorganization, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release). Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and (b) other Indebtedness permitted under this Agreement. (n) The Lenders shall have received the financial statements and opinion referred to in Section 3.05. (o) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent. (p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the Agent, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01). (q) The Lenders shall have received, at least five (5) days prior to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (r) The ABL Facility Documentation shall have been executed and delivered on terms reasonably satisfactory to the Lenders, with a copy delivered to the Administrative Agent. (s) Each of the Plan of Reorganization Confirmation Requirements shall have been satisfied or waived with the consent of Arranger. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries (to the extent required under the terms of the Guarantee and Collateral Agreement) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with the United States Patent and Trademark Office or the United States Copyright Office) after the Loan Parties’ use of commercially reasonable efforts to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirement, shall not constitute a condition precedent to availability of the Credit Facilities on the Closing Date, but instead shall be required to be perfected (or, in the case of Mortgages, granted) within 90 days after the Closing Date (which period may be extended with the consent of the Collateral Agent in is sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably.

CONDITIONS OF BORROWING. On The effectiveness of this Agreement, the Closing Dateobligations of the Term Loan A Lenders to provide the Term Loan A Commitments, and the other agreements of the Lenders under Section 2.01 are subject to satisfaction of the following conditions precedent: (a) The Administrative Agent Agent’s receipt of the following, each of which shall have received be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a notice Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Agreement; (ii) Notes executed by the Borrower in favor of each Lender requesting Notes; (iii) certified copies of (A) the resolutions of the Board of Directors or equivalent governing body of each Loan Party approving the Transactions and the Transaction Documents to which it is or is to be a party and (B) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Transaction Document to which it is a party; (iv) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s constitutive documents on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such Borrowing certificate and (3) such Loan Party is duly incorporated or formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of incorporation or formation; (v) a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4.01(a)(iv), (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4.01(a)(iii) were adopted and on the Closing Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party; (vi) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder; (vii) a certificate of a duly authorized officer of each Loan Party stating that all consents, licenses and approvals required by Section 2.03 (or in connection with the consummation of such notice shall Loan Party of the Transactions have been deemed given received and are in accordance full force and effect; (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the representations and warranties of the Borrower and the other Loan Parties contained in Article V are true and correct in all material respects immediately prior to, and shall be true and correct in all material respects after giving effect to, the Borrowing, (B) that the representations and warranties contained in the other Loan Documents are true and correct in all material respects as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct as of such specific date), (C) the absence of any event occurring and continuing, or resulting from the Borrowing, that constitutes a Default or Event of Default, (D) absence of any litigation (other than Disclosed Litigation) that could reasonably likely be expected to result in a Material Adverse Effect, (E) compliance with all Applicable Laws and regulations (including ERISA and Environmental Laws), and (F) the absence of any Material Adverse Effect since August 17, 2012; (ix) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis before and after giving effect to the Transactions, from the Borrower’s chief financial officer; (x) the executed opinion of (A) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and (B) local Kansas counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in each case, in form and substance reasonably satisfactory to the Administrative Agent; (xi) a certificate as to the identity, location and other characteristics of the Collateral in form and substance reasonably satisfactory to the Administrative Agent, duly executed by each Loan Party (the “Perfection Certificate”); (xii) evidence that all insurance required to be maintained pursuant to Section 2.02)6.08 has been obtained and is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; (xiii) each of the Equity Documents (excluding the Warrants) and copies of the Warrant certificates attached to the Warrant Agreement, certified as true and correct copies thereof by a Responsible Officer of the Borrower; (xiv) the Intercreditor Agreement, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by each party thereto; (xv) [Intentionally omitted]; (xvi) the Omnibus Amendment with respect to the Security Agreement and the Subsidiary Guarantee, duly executed by each Loan Party, together with: (A) confirmation from the Collateral Agent that all certificates representing the Initial Pledged Equity referred to therein (to the extent not constituting ABL Primary Collateral) accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, accompanied by note transfer powers indorsed in blank, are in the possession of the Collateral Agent; (B) copies of all UCC financing statements filed pursuant to the Original Credit Agreement, each of which shall remain on file and of record in the appropriate jurisdictions, and any additional UCC financing statements or UCC financing statement amendments reasonably requested by the Collateral Agent in suitable form for filing; (C) completed requests for information and lien search results, dated on or before the Closing Date, showing the UCC financing statements filed pursuant to the Original Credit Agreement and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements; (D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the security interest created thereunder; and (E) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken. (b) The representations and warranties set forth of (i) the Borrower contained in Article III V and (ii) each Loan Party contained in each other Loan Document Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such datedate hereof, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date. (c) On the Closing Date, no No Default or Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall have received, on behalf of itself, or would result from the Lenders, a favorable written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A), in each case dated the Closing Date. (e) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity), (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (f) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b), and (c) of this Section 4.01. (g) Contemporaneously with the closing, the Administrative Agent shall have received all Fees, all fees payable under the Fee Letter and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (h) The Administrative Agent shall have received duly executed counterparts execution of this Agreement or the proposed Borrowing or from each party hereto. (i) (i) the Administrative Agent shall have received duly executed counterparts of each Security Document required to be executed at Closing from each party thereto and (ii) the Security Documents shall be in full force and effect on the Closing Date and the Collateral Agent on behalf application of the Secured Parties shall have a perfected security interest in the Collateral of the type and priority described in each Security Documentproceeds thereof. (j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral Agent). (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (m) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of Reorganization, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release). Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and (b) other Indebtedness permitted under this Agreement. (n) The Lenders shall have received the financial statements and opinion referred to in Section 3.05. (o) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent. (p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the Agent, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01). (q) The Lenders shall have received, at least five (5) days prior to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (r) The ABL Facility Documentation shall have been executed and delivered on terms reasonably satisfactory to the Lenders, with a copy delivered to the Administrative Agent. (s) Each of the Plan of Reorganization Confirmation Requirements shall have been satisfied or waived with the consent of Arranger. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries (to the extent required under the terms of the Guarantee and Collateral Agreement) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with the United States Patent and Trademark Office or the United States Copyright Office) after the Loan Parties’ use of commercially reasonable efforts to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirement, shall not constitute a condition precedent to availability of the Credit Facilities on the Closing Date, but instead shall be required to be perfected (or, in the case of Mortgages, granted) within 90 days after the Closing Date (which period may be extended with the consent of the Collateral Agent in is sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably.

CONDITIONS OF BORROWING. On The effectiveness of this Agreement and the Closing Dateobligations of the Lenders to provide the Commitments and Term Loans hereunder are subject to satisfaction of the following conditions precedent: (a) The Administrative Agent Agent’s receipt of the following, each of which shall have received be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a notice Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) executed counterparts of this Agreement; (ii) Notes executed by the Borrower in favor of each Lender requesting Notes; (iii) certified copies of (A) the resolutions of the Board of Directors or equivalent governing body of each Loan Party approving the Transaction and the Loan Documents to which it is or is to be a party and (B) of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transaction and each Loan Document to which it is a party; (iv) a copy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, as the case may be, of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, article of formation, or such other constitutive document on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s constitutive documents on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such Borrowing certificate and (3) such Loan Party is duly incorporated or formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of incorporation or formation; (v) a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4.01(a)(iv) (B) a true and correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4.01(a)(iii) were adopted and on the Closing Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party; (vi) a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder; (vii) a certificate of a duly authorized officer of each Loan Party stating that all consents, licenses and approvals required in connection with the consummation of such Loan Party of the Transaction has been received and are in full force and effect; (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the representations and warranties of the Borrower and the other Loan Parties contained in Article V are true and correct in all material respects immediately prior to, and shall be true and correct in all material respects after giving effect to, the Borrowing, (B) that the representations and warranties contained in the other Loan Documents are true and correct in all material respects as though made on and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct as of such specific date), (C) the absence of any event occurring and continuing, or resulting from the Borrowing, that constitutes a Default or Event of Default, (D) absence of any litigation (other than Disclosed Litigation) that could reasonably likely be expected to result in a Material Adverse Effect, (E) compliance with all Applicable Laws and regulations (including ERISA and Environmental Laws), and (F) the absence of any Material Adverse Effect since March 15, 2010; (ix) a certificate attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis before and after giving effect to the Transaction, from the Borrower’s chief financial officer; (x) the executed opinion of (A) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and (B) local Kansas counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in each case, in form and substance reasonably satisfactory to the Administrative Agent; (xi) a certificate as to the identity, location and other characteristics of the Collateral in form and substance reasonably satisfactory to the Administrative Agent, duly executed by each Loan Party (the “Perfection Certificate”); (xii) evidence that all insurance required to be maintained pursuant to Section 2.03 6.08 has been obtained and is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral; (xiii) the Subsidiary Guaranty, substantially in the form of Exhibit F hereto and otherwise in form and substance reasonably satisfactory to the Administrative Agent executed by each Subsidiary Guarantor; (xiv) the Intercreditor Agreement, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by each party thereto; (xv) the Security Agreement, duly executed by each Loan Party, together with: (i) certificates representing the Initial Pledged Equity referred to therein (to the extent not constituting ABL Primary Collateral) accompanied by undated stock powers executed in blank and instruments evidencing the Initial Pledged Debt referred to therein, accompanied by note transfer powers indorsed in blank; (ii) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents, covering the Collateral described therein; (iii) completed requests for information and lien search results, dated on or before the Closing Date all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such notice shall have other financing statements; (iv) the (1) Trademark Security Agreement, (2) Patent Security Agreement and (3) Copyright Security Agreement, in each case duly executed by each Loan Party; (v) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the security interest created thereunder; (vi) the Deposit Account Control Agreements and other control agreements referred to in the Security Agreement, duly executed by the applicable Loan Parties and each Pledged Account Bank or other depositary banks or securities intermediaries referred to in the Security Agreement; (vii) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been deemed given in accordance with Section 2.02taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements).; (b) The representations and warranties set forth of (i) the Borrower contained in Article III V and (ii) each Loan Party contained in each other Loan Document Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such datedate hereof, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date. (c) On the Closing Date, no No Default or Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall have received, on behalf of itself, or would result from the Lenders, a favorable written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A), in each case dated the Closing Date. (e) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity), (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (f) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b), and (c) of this Section 4.01. (g) Contemporaneously with the closing, the Administrative Agent shall have received all Fees, all fees payable under the Fee Letter and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (h) The Administrative Agent shall have received duly executed counterparts execution of this Agreement or the proposed Borrowing or from each party hereto. (i) (i) the Administrative Agent shall have received duly executed counterparts of each Security Document required to be executed at Closing from each party thereto and (ii) the Security Documents shall be in full force and effect on the Closing Date and the Collateral Agent on behalf application of the Secured Parties shall have a perfected security interest in the Collateral of the type and priority described in each Security Documentproceeds thereof. (j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral Agent). (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (m) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of Reorganization, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release). Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and (b) other Indebtedness permitted under this Agreement. (n) The Lenders shall have received the financial statements and opinion referred to in Section 3.05. (o) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent. (p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the Agent, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01). (q) The Lenders shall have received, at least five (5) days prior to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (r) The ABL Facility Documentation shall have been executed and delivered on terms reasonably satisfactory to the Lenders, with a copy delivered to the Administrative Agent. (s) Each of the Plan of Reorganization Confirmation Requirements shall have been satisfied or waived with the consent of Arranger. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries (to the extent required under the terms of the Guarantee and Collateral Agreement) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with the United States Patent and Trademark Office or the United States Copyright Office) after the Loan Parties’ use of commercially reasonable efforts to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirement, shall not constitute a condition precedent to availability of the Credit Facilities on the Closing Date, but instead shall be required to be perfected (or, in the case of Mortgages, granted) within 90 days after the Closing Date (which period may be extended with the consent of the Collateral Agent in is sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably.

CONDITIONS OF BORROWING. On the Closing Date: (a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02). (b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date. (cb) On the Closing Date, no Default or Event of Default shall have occurred and be continuing. (dc) The Administrative Agent Lender shall have received, on behalf of itself, the Lenders, a received favorable written opinion opinions of (i) XxxxPxxxx Cxxxxxx LLP, WeissFxxxxxxxx Xxxxx, RifkindP.C., Xxxxxxx and Rxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Xxxxxxxx LLPGxxxx P.C., counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A), in each case dated the Closing DateLender. (ed) The Administrative Agent Lender shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity), (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (fe) The Administrative Agent Lender shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (ba), and (cb) of this Section 4.01. (gf) Contemporaneously with the closing, the Administrative Agent Lender shall have received all Fees, all fees payable under the Fee Letter and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (hg) The Administrative Agent Lender shall have received duly executed counterparts of this Agreement from each party hereto. (ih) (i) the Administrative Agent The Lender shall have received duly executed counterparts of each Security Document required to be executed at Closing from each party thereto and (ii) the Security Documents shall be in full force and effect on the Closing Date and the Collateral Agent on behalf of the Secured Parties Lender shall have a perfected security interest in the Collateral of the type and priority described in each Security Document. (ji) The Collateral Agent Lender shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent Lender that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral AgentLender). (kj) The Administrative Agent Lender shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent Lender as additional insured, in form and substance reasonably satisfactory to the Administrative AgentLender. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (mk) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of Reorganization, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent Lender shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release)Lender. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and (b) other Indebtedness permitted under this Agreement. (nl) The Lenders Lender shall have received the financial statements and opinion referred to in Section 3.05. (om) The Administrative Agent Lender shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent. (pn) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the AgentLender, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01)hereby. (qo) The Lenders Lender shall have received, at least five (5) days prior received from the Company a duly executed Warrant to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Actpurchase 152,410,185 shares of Common Stock. (rp) The ABL Facility Documentation Lender shall have been received from the Company a duly executed and delivered on terms reasonably satisfactory counterpart amendment to that certain Registration Rights Agreement, dated as of the date hereof, covering the shares of Common Stock subject to the Lenders, with a copy delivered to the Administrative Agent. (s) Each of the Plan of Reorganization Confirmation Requirements shall have been satisfied or waived with the consent of ArrangerWarrant. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries (to the extent required under the terms of the Guarantee and Collateral Agreement) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with the United States Patent and Trademark Office or the United States Copyright Office) after the Loan Parties’ use of commercially reasonable efforts to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirement, shall not constitute a condition precedent to availability of the Credit Facilities on the Closing Date, but instead shall be required to be perfected (or, in the case of Mortgages, granted) within 90 30 days after the Closing Date (which period may be extended with the consent of the Collateral Agent Lender in is sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent Lender and the Borrower acting reasonably.

CONDITIONS OF BORROWING. On The obligations of the Lenders to make Loans hereunder on the Closing DateDate are subject to the satisfaction of the following conditions: (a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02). (b) The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date. (c) On the Closing Date, no Default or Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall have received, on behalf of itself, itself and the Lenders, a favorable written opinion of (i) Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Borrower, (ii) Xxxxxx Xxxx, the Vice President, General Counsel and Secretary of the Borrower, and (iii) each counsel listed on Schedule 4.02(a), each such opinion to be in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A)Agent, in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such matters relating to the Credit Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions. (eb) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational other equivalent formation document), including all amendments thereto, of each Loan Credit Party, certified as of a recent date by the Secretary of State (or comparable entityother similar official) of the jurisdiction state of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Credit Party as of a recent date, from such Secretary of State (or comparable entity), State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Credit Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws laws, partnership agreement, limited liability company agreement, memorandum and articles of association or other equivalent governing document of such Loan Credit Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable equivalent governing body) of such Loan Credit Party authorizing the execution, delivery and performance of the Loan Credit Documents to which such Loan Party Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effecteffect on the Closing Date, (C) that the certificate or articles of incorporation (or comparable organizational document) other equivalent formation document of such Loan Credit Party have has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Credit Document or any other document delivered in connection herewith on behalf of such Loan Credit Party; and (iii) the certificate referred to in the foregoing clause (ii) shall contain a certificate certification by an Authorized Officer of another officer such Credit Party as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the such certificate pursuant to clause (ii) above. (fc) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial an Authorized Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (bi), (j), (k) (second sentence only), (o), (p), (q) and (cr) of this Section 4.014.02. (gd) Contemporaneously with the closingThe Administrative Agent, the Administrative Agent each Lead Arranger and each Lender shall have received all Fees, all fees payable under the Fee Letter Fees and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or hereunder, under any other Loan Document. Credit Document or under the Commitment Letter or the Fee Letters referred to therein (h) The Administrative Agent shall have received duly executed counterparts including reasonable fees and expenses of this Agreement from each party heretocounsel). (i) (i) the Administrative Agent The Borrower shall have received duly authorized, executed counterparts of and delivered this Agreement, and each Security Document required other party to be this Agreement shall have executed at Closing from each party thereto and (ii) the Security Documents delivered this Agreement, and this Agreement shall be in full force and effect and (ii) each Subsidiary Guarantor shall have duly authorized, executed and delivered the Second Lien Subsidiaries Guaranty substantially in the form of Exhibit C (as amended, modified and/or supplemented from time to time, the “Subsidiaries Guaranty”), and the Subsidiaries Guaranty shall be in full force and effect. (f) Each Credit Party and each other Subsidiary of the Borrower which is an obligee or obligor with respect to any Intercompany Debt shall have duly authorized, executed and delivered the Intercompany Subordination Agreement substantially in the form of Exhibit F (as amended, modified, restated and/or supplemented from time to time, the “Intercompany Subordination Agreement”), and the Intercompany Subordination Agreement shall be in full force and effect. (g) Each Credit Party shall have duly authorized, executed and delivered the Second Lien Pledge Agreement substantially in the form of Exhibit D (as amended, modified, restated and/or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the First Lien Collateral Agent, as pledgee, all of the Pledge Agreement Collateral, if any, referred to therein and then owned by such Credit Party, (x) endorsed in blank in the case of promissory notes constituting Pledge Agreement Collateral and (y) together with executed and undated endorsements for transfer in the case of Equity Interests constituting certificated Pledge Agreement Collateral, along with evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests purported to be created by the Pledge Agreement have been taken, and the Pledge Agreement shall be in full force and effect. (h) Each Credit Party shall have duly authorized, executed and delivered the Second Lien Security Agreement substantially in the form of Exhibit E (as amended, modified, restated and/or supplemented from time to time, the “Security Agreement”) covering all of such Credit Party’s Security Agreement Collateral, together with: (i) proper financing statements (Form UCC-1 or the equivalent) duly authorized for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests purported to be created by the Security Agreement; (ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that name the Borrower or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name the Borrower or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except (x) to the extent evidencing Permitted Liens or (y) those in respect of which the Collateral Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully executed for filing); (iii) evidence of the completion of all other recordings and filings of, or with respect to, the Security Agreement (other than to the extent such actions are required or permitted to be performed after the Closing Date) as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests intended to be created by the Security Agreement; and (iv) evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect and protect the security interests purported to be created by the Security Agreement have been taken (other than to the extent such actions are required or permitted to be performed after the Closing Date), and the Security Agreement shall be in full force and effect. (i) The Acquisition shall have been consummated substantially simultaneously with the funding of Loans on the Closing Date on the terms described in the Purchase Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the Borrower, the Lenders or the Lead Arrangers without the prior written consent of the Lead Arrangers (it being understood and agreed that (a) any reduction in the aggregate amount of cash and stock consideration payable by the Borrower pursuant to the Purchase Agreement as in effect on March 25, 2011 (the “Acquisition Consideration”) (other than any reductions that in the aggregate are (x) 10% or less of the Acquisition Consideration as of March 25, 2011 and (y) if such reductions are reductions in the cash portion of the Acquisition Consideration, allocated on a dollar-for-dollar basis, (i) in the case of the first $15,000,000 of such reductions, to reduce the principal amount of the loans under this Agreement and (ii) the remainder, 50% to reduce the aggregate principal amount of the First Lien Term Loans and the Collateral Agent on behalf Loans (allocated among such facilities as determined by the Lead Arrangers) and 50% to reduce the Acquisition Consideration paid by the Borrower or any of its Affiliates) and (b) any amendment or modification to (x) Section 10.1 or 10.7 of the Secured Parties shall have a perfected security interest in the Collateral Purchase Agreement or (y) any provision of the type Purchase Agreement setting forth any liability cap or limitation on damages or remedies of which the Lead Arrangers and priority described the Lenders are beneficiaries pursuant to Section 10.7 of the Purchase Agreement (including, without limitation, Sections 8.2, 10.11 and 10.15 and Article 9 thereof), shall in each Security Documentcase be deemed to be a modification which is materially adverse to the Lenders). (j) The Collateral Agent Borrower shall have received a Perfection Certificate with respect gross cash proceeds of not less than $500,000,000 (subject to adjustment as provided in clause (i) above) from loans made under the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral Agent)First Lien Credit Agreement. (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (m) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Specified Credit Agreements Agreement shall have been (or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of ReorganizationDate shall be) paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release)thereof. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness for borrowed money or preferred stock Preferred Equity other than (a) Indebtedness outstanding under this Agreement, (b) the loans under the First Lien Credit Agreement (c)(i) debt of Green Tree Servicing LLC in an aggregate principal amount not to exceed $20,100,000 under the Existing Xxxxxx Xxx Credit Agreement, (ii) debt of Green Tree Advance Receivables II LLC in an aggregate principal amount not to exceed $75,000,000 under the Existing Receivables Loan Agreement, (iii) debt of Green Tree Servicing LLC in an aggregate principal amount not to exceed $5,000,000 under the Existing Warehouse Loan Agreement and (biv) other Indebtedness permitted under this Agreementnon-recourse debt in an aggregate principal amount not to exceed $2,750,000,000 of Securitization Vehicles, (d) indebtedness listed on Schedule 3.21 and (e) Qualified Equity Interests. (nl) The Lenders shall have received the financial statements and opinion referred to in Section 3.05. (om) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower substantially in the form attached hereto as Exhibit K certifying that each of the Loan Parties Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions to occur on the Closing Date, is Solventare solvent. (p) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the Agent, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01). (qn) The Lenders Administrative Agent shall have received, at least five (5) days Business Days prior to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (ro) The ABL Facility Documentation shall have been executed and delivered Target’s consolidated EBITDA for the twelve-month period ending on terms reasonably satisfactory March 31, 2011 (calculated in a manner consistent with the presentation of EBITDA set forth in the Project Cardinal Offering Memorandum provided to the LendersLead Arrangers prior to March 25, with a copy delivered to the Administrative Agent2011, adjusted for provision expense on advances) shall not be less than $160,000,000. (sp) Each Except as set forth on Schedule 3.7 to the Purchase Agreement as in effect on March 25, 2011, since December 31, 2010, there shall not have been, individually or in the aggregate, a Company Material Adverse Effect. For purposes of this clause, “Company Material Adverse Effect” means any change, development, circumstance, effect, event or fact (a) that has, or would reasonably be expected to have, a material adverse effect upon the financial condition, business, assets, liabilities or results of operations of the Plan Group Companies, taken as a whole or (b) would reasonably be expected to prevent or materially impede or materially delay the performance in all material respects by the Seller and/or the Company of Reorganization Confirmation Requirements shall have been satisfied their respective obligations under the Purchase Agreement or waived with the consent of Arranger. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection consummation of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries transactions contemplated thereby; provided, however, that any adverse change, event or effect arising from or related to: (to the extent required under the terms of the Guarantee and Collateral Agreementi) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with conditions affecting the United States Patent and Trademark Office economy generally, (ii) national or international political or social conditions, including the engagement by the United States Copyright Officein hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (iii) changes after March 25, 2011 in financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (iv) changes after March 25, 2011 in GAAP, (v) changes after March 25, 2011 in any Law or other binding directives issued by any Governmental Entity, (vi) changes after March 25, 2011 that are generally applicable to the industries or markets in which the Group Companies operate, (vii) the public announcement of the transactions contemplated by the Purchase Agreement, (viii) any material failure by the Company to meet any internal or published projections, forecasts or revenue or earnings predictions for any period ending on or after the Loan Parties’ use date of commercially reasonable efforts the Purchase Agreement; provided that any change, effect, event or occurrence that caused or contributed to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirementmeet projections, forecasts or predictions shall not constitute a condition precedent be excluded pursuant to availability this clause (viii), (ix) the taking of any action contemplated by the Purchase Agreement and the other agreements contemplated thereby, including the completion of the Credit Facilities transactions contemplated thereby, (x) any adverse change in or effect on the business of the Group Companies that is cured prior to the Closing Date, but instead or (xi) the matter set forth in Schedule I to the Commitment Letter, shall not (for purposes of clause (a) of this definition) be required taken into account in determining whether a “Company Material Adverse Effect” has occurred; provided, further, however, that any change, event or effect referred to in clauses (i) through (vi) may be perfected (ortaken into account in determining whether or not there has been a “Company Material Adverse Effect” to the extent such change, event or effect has a disproportionate adverse affect on the Group Companies, taken as a whole, as compared to other participants in the industry in which the Group Companies operate (in which case of Mortgages, granted) within 90 days after only the Closing Date (which period incremental disproportionate impact or impacts may be extended with taken into account in determining whether or not there has been or may be a “Company Material Adverse Effect”). Solely for purposes of this clause, any capitalized terms used in the consent of clause shall have the Collateral Agent same meaning as set forth in is sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonablyPurchase Agreement as in effect on March 25, 2011.

CONDITIONS OF BORROWING. On the Closing Date: (a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02). (b) The representations and warranties set forth in Article ‎Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date. (cb) On the Closing Date, no Default or Event of Default shall have occurred and be continuing. (dc) The Administrative Agent shall have received, on behalf of itself, the Lenders, a received favorable written opinion opinions of (i) XxxxPxxxx Cxxxxxx LLP, WeissFxxxxxxxx Xxxxx, RifkindP.C., Xxxxxxx and Rxxxxxxx Brog Leinwand Gxxxxx Gxxxxxxx & Xxxxxxxx LLPGxxxx P.C., counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and (ii) each local counsel listed on Schedule 4.02(a), dated as of the Closing Date and substantially to the effect set forth in Exhibit 4.02(A), in each case dated the Closing DateAgent. (ed) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity), (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above. (fe) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b‎(a), and (c‎(b) of this Section ‎Section 4.01. (gf) Contemporaneously with the closing, the Administrative Agent for the account of the Lenders shall have received all Fees, all fees payable under the Fee Letter and all other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (hg) The Administrative Agent shall have received duly executed counterparts of this Agreement from each party hereto. (ih) (i) the Administrative The Agent shall have received duly executed counterparts of each Security Document required to be executed at Closing from each party thereto and (ii) the Security Documents shall be in full force and effect on the Closing Date and the Collateral Agent on behalf of the Secured Parties Lenders shall have a perfected security interest in the Collateral of the type and priority described in each Security Document. (ji) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section ‎Section 6.02 or have been or will be contemporaneously released or terminated (or are otherwise required to be released pursuant to the terms of a payoff letter reasonably acceptable to Collateral Agent). (kj) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section ‎Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent Agent, on behalf of the Lenders, as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (l) The Borrower shall have used commercially reasonable efforts to obtain a public corporate credit rating from S&P and a public corporate family rating from Xxxxx’x, in each case with respect to the Borrower, and public ratings for the Term Facility from each of S&P and Xxxxx’x. (mk) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreements shall have been or will be, substantially simultaneously with the initial funding of the Loans on the Closing Date, repaid, restructured or reinstated as expressly contemplated by the Plan of Reorganization, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof (it being understood and agreed that such evidence shall be payoff letters from the administrative agents under the Existing Credit Agreements reasonably satisfactory to the Administrative Agent, or, if such letters are not available, appropriate provisions reasonably satisfactory to the Administrative Agent in the Plan Confirmation Order confirming such discharge and release). Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement and (b) other Indebtedness permitted under this Agreement. (nl) The Lenders Agent shall have received the financial statements and opinion referred to in Section ‎Section 3.05. (om) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is Solvent. (pn) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required or reasonably requested by the AgentLenders, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that has resulted or could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby (other than the Plan Confirmation Order, which is addressed in paragraph (s) of this Section 4.01)hereby. (qo) The Lenders Lender shall have received, at least five (5) days prior received from the Company a duly executed Warrant to the Closing Date, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Actpurchase an aggregate of 23,788,386 shares of Common Stock. (rp) The ABL Facility Documentation Agent shall have been received from the Company a duly executed and delivered on terms reasonably satisfactory counterpart to that certain Registration Rights Agreement covering all warrants to purchase shares of Common Stock issued to the Lenders, with a copy delivered to the Administrative Agent. (s) Each of the Plan of Reorganization Confirmation Requirements shall have been satisfied Lenders or waived with the consent of Arrangertheir respective Affiliates. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that to the extent any security interest in any Collateral is not or cannot be perfected (or, in the case of Mortgages, granted) or any Real Estate Collateral Requirements satisfied on or before the Closing Date (other than the perfection of the security interests in Equity Interests of the Borrower and the Domestic Subsidiaries (to the extent required under the terms of the Guarantee and Collateral Agreement) and assets with respect to which a Lien may be perfected by the filing of a financing statement under the UCC or an intellectual property notice filing with the United States Patent and Trademark Office or the United States Copyright Office) after the Loan Parties’ use of commercially reasonable efforts to do so, then the perfection (or, in the case of Mortgages, grant) of a security interest in such Collateral or, if applicable, failure to satisfy any Real Estate Collateral Requirement, shall not constitute a condition precedent to availability of the Credit Facilities on the Closing Date, but instead shall be required to be perfected (or, in the case of Mortgages, granted) within 90 30 days after the Closing Date (which period may be extended with the consent of the Collateral Agent in is its sole discretion) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably.