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