AGENT SHALL HAVE RECEIVED EVIDENCE OF INSURANCE
COVERAGE IN FORM, SCOPE, AND SUBSTANCE REASONABLY SATISFACTORY TO THE AGENT AND
OTHERWISE IN COMPLIANCE WITH THE TERMS OF SECTION 5.10 AND SECTION 4.11 OF THE
SECURITY AGREEMENT AND SHALL HAVE RECEIVED ENDORSEMENTS NAMING THE AGENT
(TOGETHER WITH THE TERM LOAN AGENT, AS APPLICABLE) AS AN ADDITIONAL INSURED OR
LOSS PAYEE, AS APPLICABLE, SUBJECT TO THE TERMS OF THE INTERCREDITOR AGREEMENT
(U)
COLLATERAL DOCUMENTS.
THE AGENT SHALL HAVE RECEIVED TRUE AND
COMPLETE CERTIFIED COPIES OF THE COLLATERAL DOCUMENTS AND THE TERM LOAN SECURITY
DOCUMENTS (AS DEFINED IN THE INTERCREDITOR AGREEMENT).
(V)
FIELD EXAMINATION, APPRAISAL.
THE AGENT AND THE CO-COLLATERAL
AGENTS SHALL HAVE RECEIVED (I) THE RESULTS OF A COMPLETED FIELD EXAMINATION WITH
RESPECT TO THE COLLATERAL TO BE INCLUDED IN CALCULATING THE BORROWING BASE AND
OF THE RELEVANT ACCOUNTING SYSTEMS, POLICIES AND PROCEDURES OF HOLDINGS AND ITS
SUBSIDIARIES, WITH RESULTS SATISFACTORY TO THE CO-COLLATERAL AGENTS AND (II) AN
APPRAISAL OF THE NET ORDERLY LIQUIDATION VALUE OF INVENTORY IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE CO-COLLATERAL AGENTS.
THE AGENT AND
THE CO-COLLATERAL AGENTS SHALL BE REASONABLY SATISFIED WITH THE CASH MANAGEMENT
SYSTEM OF THE LOAN PARTIES.
(W)
PATRIOT ACT.
THE AGENT SHALL HAVE RECEIVED ALL DOCUMENTATION AND
OTHER INFORMATION REASONABLY REQUESTED BY IT OR ANY LENDER THAT IS REQUIRED BY
REGULATORY AUTHORITIES UNDER APPLICABLE "KNOW YOUR CUSTOMER" AND ANTI-MONEY
LAUNDERING RULES AND REGULATIONS, INCLUDING THE USA PATRIOT ACT.
The Agent shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of any Issuing Bank to issue
Letters of Credit hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02)
86
at or prior to 5:00 p.m., New York City time, on July 31, 2009 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02.
Each Credit Event Other Than Incremental Term Loans.
The obligation of each Revolving Lender to make a Revolving Loan on the occasion
of any Revolving Borrowing, and of any Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the following
conditions:
(A)
THE AGENT SHALL HAVE RECEIVED, IN THE CASE OF A REVOLVING
BORROWING, A BORROWING REQUEST AS REQUIRED BY SECTION 2.03 (OR A BORROWING
REQUEST SHALL HAVE BEEN DEEMED GIVEN IN ACCORDANCE WITH THE LAST PARAGRAPH OF
SECTION 2.03) OR, IN THE CASE OF THE ISSUANCE OF A LETTER OF CREDIT, THE
APPLICABLE ISSUING BANK AND THE AGENT SHALL HAVE RECEIVED A NOTICE REQUESTING
THE ISSUANCE OF SUCH LETTER OF CREDIT AS REQUIRED BY SECTION 2.06(B) OR, IN THE
CASE OF A SWINGLINE BORROWING, THE SWINGLINE LENDER AND THE AGENT SHALL HAVE
RECEIVED A SWINGLINE BORROWING REQUEST AS REQUIRED BY SECTION 2.05(A).
(B)
THE REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES SET FORTH
IN THIS AGREEMENT AND