CREATED THEREBY (TOGETHER WITH ANY OTHER NECESSARY DOCUMENTS,
INSTRUMENTS, AFFIDAVITS OR CERTIFICATES) AS THE AGENT MAY DEEM REASONABLY
NECESSARY TO PERFECT AND PROTECT THE LIENS CREATED THEREBY.
(F)
FEES AND EXPENSES. THE AGENT SHALL HAVE
RECEIVED FOR ITSELF AND FOR THE ACCOUNT OF THE OTHER SECURED CREDITORS ALL FEES
AND OTHER AMOUNTS DUE AND PAYABLE BY THE BORROWER ON OR PRIOR TO THE EFFECTIVE
DATE, INCLUDING THE REASONABLE FEES AND EXPENSES OF COUNSEL TO THE AGENT PAYABLE
PURSUANT TO SECTION 10.2.
SECTION 3.2 CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT.
THE
OBLIGATION OF THE LENDERS TO MAKE ANY LOANS HEREUNDER AND OF THE LETTER OF
CREDIT ISSUER TO ISSUE ANY LETTER OF CREDIT HEREUNDER SHALL BE SUBJECT TO THE
FULFILLMENT OF THE FOLLOWING ADDITIONAL CONDITIONS:
(A)
NOTICES AND REQUESTS.
THE AGENT SHALL HAVE
RECEIVED THE BORROWER'S REQUEST FOR SUCH LOANS AS REQUIRED UNDER SECTION 2.2
AND, IF APPLICABLE, ITS APPLICATION FOR SUCH LETTER OF CREDIT AS SPECIFIED UNDER
SECTION 2.13.
(B)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LOAN DOCUMENTS SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF EACH LOAN AND THE DATE
OF ISSUANCE OF EACH LETTER OF CREDIT, WITH THE SAME FORCE AND EFFECT AS IF MADE
ON SUCH DATE, EXCEPT TO THE EXTENT THAT ANY SUCH REPRESENTATION OR WARRANTY
RELATES TO A SPECIFIED DATE, IN WHICH CASE SUCH REPRESENTATION OR WARRANTY SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH DATE.
(C)
NO DEFAULT; COLLATERAL COVERAGE; RELATED
OFFICER'S CERTIFICATE.
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND
BE CONTINUING ON THE EFFECTIVE DATE OR ON THE DATE OF ANY LOAN OR THE DATE OF
ISSUANCE OF ANY LETTER OF CREDIT OR WILL EXIST
46
AFTER GIVING EFFECT TO ANY LOAN OR THE ISSUANCE OF ANY LETTER OF CREDIT.
WITHOUT LIMITING THE FOREGOING, EACH OF THE COLLATERALIZATION REQUIREMENTS SHALL
HAVE BE SATISFIED, AND THE CURRENT APPRAISED VALUE OF THE ELIGIBLE COLLATERAL
SHALL NOT BE LESS THAN THE COLLATERAL COVERAGE THRESHOLD, IN EACH CASE AT THE
TIME OF, AND AFTER GIVING EFFECT TO, EACH LOAN AND THE ISSUANCE OF EACH LETTER
OF CREDIT.
THE BORROWER SHALL HAVE DELIVERED TO THE AGENT, TOGETHER WITH THE
REQUEST FOR SUCH LOAN OR THE ISSUANCE OF SUCH LETTER OF CREDIT, AS APPLICABLE,AN
OFFICER'S CERTIFICATE, CERTIFYING THAT EACH OF THE CONDITIONS SET FORTH IN THIS
SECTION 3.2(C) IS SATISFIED ON SUCH DATE.
(D)
ABSENCE OF LITIGATION AND OTHER
PROCEEDINGS.
THERE SHALL BE NO ACTIONS, SUITS OR PROCEEDINGS OR INVESTIGATIONS
PENDING OR THREATENED WITH RESPECT TO HOLDINGS OR ANY OF ITS SUBSIDIARIES OR ANY
OF THEIR RESPECTIVE PROPERTIES THAT HAVE HAD, OR COULD REASONABLY BE EXPECTED TO
HAVE, A MATERIAL ADVERSE EFFECT OR AFFECT THE LEGALITY, VALIDITY, BINDING EFFECT
OR ENFORCEABILITY OF ANY LOAN DOCUMENT.
(E)
CONSENTS.
ALL GOVERNMENTAL AND THIRD PARTY
CONSENTS AND APPROVALS NECESSARY IN CONNECTION WITH THE FINANCING CONTEMPLATED
HEREBY SHALL HAVE BEEN OBTAINED, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO THE AGENT,