reasonable and (b) such forecasts, estimates, pro forma
information and statements, and the assumptions on which they were based, may or
may not prove to be correct.
5.17.
LABOR MATTERS.
THERE ARE NO STRIKES PENDING OR, TO THE KNOWLEDGE
OF THE BORROWER, REASONABLY EXPECTED TO BE COMMENCED AGAINST THE BORROWER OR ANY
OF ITS SUBSIDIARIES WHICH, INDIVIDUALLY OR IN THE AGGREGATE, WOULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
THE HOURS WORKED AND PAYMENTS MADE
TO EMPLOYEES OF THE BORROWER AND EACH OF ITS SUBSIDIARIES HAVE NOT BEEN IN
VIOLATION OF ANY APPLICABLE LAWS, RULES OR REGULATIONS, EXCEPT WHERE SUCH
VIOLATIONS WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.18.
THE ORDERS.
AS OF THE DATE OF THE MAKING OF ANY EXTENSION OF
CREDIT HEREUNDER, THE INTERIM ORDER OR THE FINAL ORDER, AS APPLICABLE, HAS BEEN
ENTERED AND HAS NOT BEEN STAYED, AMENDED, VACATED, REVERSED, RESCINDED OR
OTHERWISE MODIFIED IN ANY RESPECT (EXCEPT IN ACCORDANCE WITH THE TERMS HEREOF).
5.19.
USE OF PROCEEDS.
THE PROCEEDS OF THE LOANS AND THE LETTERS OF
CREDIT SHALL BE USED (A) FOR WORKING CAPITAL AND OTHER GENERAL CORPORATE
PURPOSES OF THE LOAN PARTIES (INCLUDING WITHOUT LIMITATION, "CHAPTER 11
EXPENSES" (OR "ADMINISTRATIVE COSTS REFLECTING CHAPTER 11 EXPENSES")), (B) TO
MAKE THE ADEQUATE PROTECTION PAYMENTS TO, OR FOR THE BENEFIT OF, THE PREPETITION
SECURED PARTIES, IN ACCORDANCE WITH SUBSECTION 2.8 AND THE INTERIM ORDER (OR THE
FINAL ORDER, AS APPLICABLE) AND (C) ON THE CLOSING DATE, OR AS SOON AS POSSIBLE
THEREAFTER, TO REPAY IN FULL THE 2008 REVOLVING LOANS, THE 2008 SWINGLINE LOANS,
THE 2008 REIMBURSEMENT OBLIGATIONS AND THE NEW TERM LOANS UNDER (AND AS DEFINED
IN) THE PREPETITION CREDIT FACILITY (INCLUDING WITHOUT LIMITATION, ALL ACCRUED
INTEREST, FEES, PREPAYMENT FEES, AND EXPENSES WITH RESPECT THERETO).
SECTION 6.
CONDITIONS PRECEDENT
6.1.
CONDITIONS TO INITIAL EXTENSION OF CREDIT.
THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE AGREEMENT OF EACH LENDER TO MAKE THE INITIAL
EXTENSION OF CREDIT REQUESTED TO BE MADE BY IT, SHALL BECOME EFFECTIVE ON THE
DATE ON WHICH THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN SATISFIED OR
WAIVED:
(A)
LOAN DOCUMENTS.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THIS
AGREEMENT, EXECUTED AND DELIVERED BY A DULY AUTHORIZED OFFICER OF THE BORROWER
AND EACH OF THE GUARANTORS, WITH A COPY FOR EACH LENDER.
(B)
CAPITALIZATION AND STRUCTURE OF HOLDING AND ITS SUBSIDIARIES.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A TRUE, COMPLETE AND ACCURATE
ORGANIZATIONAL CHART OF HOLDING AND ITS SUBSIDIARIES.
(C)
CONSENTS, LICENSES AND APPROVALS.
THE ADMINISTRATIVE AGENT SHALL
HAVE RECEIVED A CERTIFICATE OF A RESPONSIBLE OFFICER OF THE BORROWER STATING
THAT ALL CONSENTS,
56
AUTHORIZATIONS, NOTICES AND FILINGS REFERRED TO IN SCHEDULE 5.4 ARE IN FULL
FORCE AND EFFECT OR HAVE THE STATUS DESCRIBED THEREIN, AND THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED EVIDENCE THEREOF REASONABLY SATISFACTORY TO IT.
(D)
LIEN SEARCHES.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE
RESULTS OF A RECENT SEARCH BY A PERSON REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT, OF THE UNIFORM COMMERCIAL CODE, JUDGMENT AND TAX LIEN