IN A
MATERIAL ADVERSE CHANGE DURING THE TERM OF THE CASES OR (II) RESTRAINS, PREVENTS
OR IMPOSES OR COULD REASONABLY BE EXPECTED TO IMPOSE MATERIALLY ADVERSE
CONDITIONS UPON THE FACILITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(IV)
ALL NECESSARY GOVERNMENTAL AND THIRD PARTY
CONSENTS AND APPROVALS NECESSARY IN CONNECTION WITH THE FACILITIES AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN OBTAINED (WITHOUT THE
IMPOSITION OF ANY ADVERSE CONDITIONS THAT ARE NOT REASONABLY ACCEPTABLE TO THE
LENDERS) AND SHALL REMAIN IN EFFECT; AND NO LAW OR REGULATION SHALL BE
APPLICABLE IN THE JUDGMENT OF THE INITIAL LENDERS THAT RESTRAINS, PREVENTS OR
IMPOSES MATERIALLY ADVERSE CONDITIONS UPON THE FACILITIES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(V)
THE INITIAL LENDERS SHALL HAVE RECEIVED, 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 PATRIOT ACT.
(VI)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
ENDORSEMENTS (TO THE EXTENT SUCH ENDORSEMENTS CAN BE DELIVERED PRIOR TO THE
INITIAL EXTENSION OF CREDIT AFTER THE EXERCISE OF THE LOAN PARTIES' COMMERCIALLY
REASONABLY EFFORTS) NAMING THE ADMINISTRATIVE AGENT, ON BEHALF OF THE LENDERS,
AS AN ADDITIONAL INSURED AND LOSS PAYEE UNDER ALL INSURANCE POLICIES TO BE
MAINTAINED WITH RESPECT TO THE PROPERTIES OF THE BORROWER, THE GUARANTORS AND
THEIR RESPECTIVE SUBSIDIARIES FORMING PART OF THE COLLATERAL.
(VII)
CONCURRENTLY WITH THE INITIAL EXTENSION OF
CREDIT, THE EXISTING RECEIVABLES FACILITY SHALL BE PAID IN FULL, ALL LIENS
SECURING THE EXISTING RECEIVABLES FACILITY SHALL BE TERMINATED, AND THE ACCOUNTS
SUBJECT TO THE EXISTING RECEIVABLES FACILITY SHALL BE TRANSFERRED TO THE LOAN
PARTIES.
(VIII)
THE BORROWER SHALL HAVE RETAINED A TURNAROUND
ADVISORY FIRM REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT (IT BEING
UNDERSTOOD ALVAREZ & MARSAL IS SATISFACTORY TO THE ADMINISTRATIVE AGENT) AND A
CHIEF RESTRUCTURING OFFICER REASONABLY SATISFACTORY TO THE REQUIRED LENDERS.
69
Section 3.02
Conditions Precedent to Each Borrowing and Each Issuance of a
Letter of Credit.
Each of (a) the obligation of each Appropriate Lender to make
an Advance (other than a Letter of Credit Advance to be made by the Issuing
Banks or a Lender pursuant to Section 2.03(c) or 2.21(c)) on the occasion of
each Borrowing, and (b) the obligation of the Issuing Banks to issue a Letter of
Credit (including the initial issuance of a Letter of Credit hereunder) or to
renew a Letter of Credit, shall be subject to the further conditions precedent
that on the date of such Borrowing, issuance or renewal:
(I)
THE FOLLOWING STATEMENTS SHALL BE TRUE
(AND EACH OF THE GIVING OF THE APPLICABLE NOTICE OF BORROWING OR LETTER OF
CREDIT APPLICATION AND THE ACCEPTANCE BY THE BORROWER OF THE PROCEEDS OF SUCH
BORROWING OR THE ISSUANCE OR RENEWAL OF SUCH LETTER OF CREDIT, AS THE CASE MAY
BE, SHALL CONSTITUTE A REPRESENTATION AND WARRANTY BY THE BORROWER THAT BOTH ON
THE DATE OF SUCH NOTICE AND ON THE DATE OF SUCH BORROWING, ISSUANCE OR RENEWAL
SUCH STATEMENTS ARE TRUE):
(A)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
EACH