SATISFACTORY TO THE ADMINISTRATIVE AGENT APPROVING THIS AGREEMENT AS
REFERRED TO IN SECTION 8.14 AND (B) ALL REQUIRED FILINGS IN CONNECTION WITH THE
TRANSACTION SHALL HAVE BEEN MADE AND ALL APPLICABLE WAITING PERIODS SHALL HAVE
EXPIRED WITHOUT ANY ACTION BEING TAKEN BY ANY COMPETENT AUTHORITY WHICH PREVENTS
THE CONSUMMATION OF THE TRANSACTION.
ADDITIONALLY, THERE SHALL NOT EXIST ANY
EVENT OR ORDER ARISING IN THE BANKRUPTCY CASE OF G-I HOLDINGS, INC., PROHIBITING
OR IMPOSING MATERIALLY ADVERSE CONDITIONS UPON THE TRANSACTION OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(G)
ALL COSTS, FEES, EXPENSES (INCLUDING LEGAL
FEES AND EXPENSES) AND OTHER COMPENSATION CONTEMPLATED HEREBY, PAYABLE TO THE
JOINT LEAD ARRANGERS AND THE LENDERS OR OTHERWISE PAYABLE IN RESPECT OF THE
TRANSACTION SHALL HAVE BEEN PAID TO THE EXTENT DUE.
(H)
THE BORROWERS SHALL HAVE DELIVERED TO THE
ADMINISTRATIVE AGENT THE NOTICE OF BORROWING FOR THE INITIAL TERM LOAN
BORROWING.
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(I)
THERE HAS NOT OCCURRED ANY CONDITION OR
CIRCUMSTANCE CONSTITUTING AN ELK MATERIAL ADVERSE EFFECT.
(J)
BMCA SHALL HAVE USED REASONABLE EFFORTS
TO RECEIVE RATINGS (OF ANY LEVEL) FOR THE TERM LOAN FACILITY FROM S&P AND
MOODY'S.
SECTION 3.02. Conditions Precedent to the Merger Term Loan Borrowing.
Each of
the following conditions precedent shall be satisfied in order for the Lenders
to make the Term Loan Advances pursuant to the Merger Term Loan Borrowing:
(I)
AFTER GIVING EFFECT TO THE CONSUMMATION
OF THE MERGER, ALL DEBT FOR BORROWED MONEY OF ELK AND ITS SUBSIDIARIES SHALL
HAVE BEEN PAID AND ALL COMMITMENTS, SECURITY INTERESTS AND GUARANTEES IN
CONNECTION THEREWITH SHALL HAVE BEEN TERMINATED AND RELEASED (OR ARRANGEMENTS
REASONABLY SATISFACTORY TO THE JOINT LEAD ARRANGERS SHALL HAVE BEEN MADE IN
RESPECT THEREOF) EXCEPT (X) THEIR OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, THE REVOLVING CREDIT FACILITY, THE BRIDGE LOAN FACILITY OR THE
SENIOR NOTES OR, IF THE ELK PRIVATE NOTES CONDITION IS SATISFIED, THE ELK
PRIVATE NOTES AND (Y) ANY SUCH DEBT PERMITTED TO BE MAINTAINED OR INCURRED
PURSUANT TO SECTION 5.02(B) AND (Z) ANY DEBT SET FORTH ON SCHEDULE 3.02.
(II)
PRIOR TO OR SIMULTANEOUSLY WITH THE MERGER
TERM LOAN BORROWING OR THE ADMINISTRATIVE AGENT IS SATISFIED THAT THE SAME WILL
HAPPEN IMMEDIATELY FOLLOWING THE MERGER TERM LOAN BORROWING, THE MERGER SHALL
HAVE BEEN CONSUMMATED (OR WILL BE CONCURRENTLY CONSUMMATED) IN ACCORDANCE WITH
THE TERMS OF THE MERGER AGREEMENT AND OTHER DOCUMENTATION THEREFOR (INCLUDING
ANY PROXY STATEMENT) AFTER GIVING EFFECT TO ANY WAIVERS OR AMENDMENTS THERETO
THAT (A) ARE NOT MATERIALLY ADVERSE TO THE INTERESTS OF THE LENDERS OR (B) TO
WHICH THE JOINT LEAD ARRANGERS HAVE GIVEN THEIR CONSENT, SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
(III)
PRIOR TO OR SIMULTANEOUSLY WITH THE MERGER
TERM LOAN BORROWING OR THE ADMINISTRATIVE AGENT IS SATISFIED THAT THE SAME WILL
HAPPEN IMMEDIATELY FOLLOWING THE MERGER, ELK AND EACH OF ITS SUBSIDIARIES SHALL
BECOME A PARTY TO THE GUARANTY AND THE SECURITY AGREEMENT, AND PROVIDE UNIFORM
COMMERCIAL CODE FINANCING STATEMENTS FOR FILING IN ALL APPROPRIATE
JURISDICTIONS.
(IV)
ALL COSTS, FEES, EXPENSES