THE FAIR LABOR STANDARDS ACT OR ANY OTHER APPLICABLE
FEDERAL, STATE, LOCAL OR FOREIGN LAW DEALING WITH SUCH MATTERS EXCEPT WHERE SUCH
VIOLATION COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT.
ALL MATERIAL PAYMENTS DUE FROM ANY LOAN
PARTY OR ANY SUBSIDIARY, OR FOR WHICH ANY CLAIM MAY BE MADE AGAINST ANY LOAN
PARTY OR ANY SUBSIDIARY, ON ACCOUNT OF WAGES AND EMPLOYEE HEALTH AND WELFARE
INSURANCE AND OTHER BENEFITS, HAVE BEEN PAID OR ACCRUED AS A LIABILITY ON THE
BOOKS OF THE LOAN PARTY OR SUCH SUBSIDIARY.
SECTION 3.20.
COMMON ENTERPRISE.
THE SUCCESSFUL OPERATION AND CONDITION OF
EACH OF THE LOAN PARTIES IS DEPENDENT ON THE CONTINUED SUCCESSFUL PERFORMANCE OF
THE FUNCTIONS OF THE GROUP OF THE LOAN PARTIES AS A WHOLE AND THE SUCCESSFUL
OPERATION OF EACH OF THE LOAN PARTIES IS DEPENDENT ON THE SUCCESSFUL PERFORMANCE
AND OPERATION OF EACH OTHER LOAN PARTY.
EACH LOAN PARTY EXPECTS TO DERIVE
BENEFIT (AND ITS BOARD OF DIRECTORS OR OTHER GOVERNING BODY HAS DETERMINED THAT
IT MAY REASONABLY BE EXPECTED TO DERIVE BENEFIT), DIRECTLY AND INDIRECTLY, FROM
(I) SUCCESSFUL OPERATIONS OF EACH OF THE OTHER LOAN PARTIES AND (II) THE CREDIT
EXTENDED BY THE LENDERS TO THE BORROWER HEREUNDER, BOTH IN THEIR SEPARATE
CAPACITIES AND AS MEMBERS OF THE GROUP OF COMPANIES.
EACH LOAN PARTY HAS
DETERMINED THAT EXECUTION, DELIVERY, AND PERFORMANCE OF THIS AGREEMENT AND ANY
OTHER LOAN DOCUMENTS TO BE EXECUTED BY SUCH LOAN PARTY IS WITHIN ITS PURPOSE,
WILL BE OF DIRECT AND INDIRECT BENEFIT TO SUCH LOAN PARTY, AND IS IN ITS BEST
INTEREST.
SECTION 3.21.
CREDIT CARD PROCESSORS.
AS OF THE EFFECTIVE DATE, SCHEDULE 3.21
LISTS ALL CREDIT CARD PROCESSORS THAT PROVIDE ANY LOAN PARTY WITH CREDIT CARD
PROCESSING SERVICES, AND SUCH SCHEDULE CORRECTLY IDENTIFIES THE NAME AND ADDRESS
OF EACH CREDIT CARD PROCESSOR, AND THE NAME IN WHICH SUCH SERVICES ARE PROVIDED.
TRUE AND COMPLETE COPIES OF EACH AGREEMENT LISTED ON SCHEDULE 3.21 HAVE BEEN
DELIVERED TO THE ADMINISTRATIVE AGENT, TOGETHER WITH ALL AMENDMENTS, WAIVERS AND
OTHER MODIFICATIONS THERETO. ALL SUCH AGREEMENTS ARE VALID, SUBSISTING, IN FULL
FORCE AND EFFECT, ARE CURRENTLY BINDING UPON EACH LOAN PARTY THAT IS A PARTY
THERETO AND BINDING UPON THE OTHER PARTIES THERETO IN ACCORDANCE WITH THEIR
TERMS. THE LOAN PARTIES ARE IN COMPLIANCE IN ALL MATERIAL RESPECTS UNDER SUCH
AGREEMENTS.
ARTICLE IV
CONDITIONS
SECTION 4.01.
EFFECTIVE DATE.
THE OBLIGATIONS OF THE LENDERS TO MAKE LOANS AND
OF THE ISSUING BANK TO ISSUE LETTERS OF CREDIT HEREUNDER SHALL NOT BECOME
EFFECTIVE UNTIL THE DATE ON WHICH EACH OF THE FOLLOWING CONDITIONS IS SATISFIED
(OR WAIVED IN ACCORDANCE WITH SECTION 9.02):
(A)
CREDIT AGREEMENT AND LOAN DOCUMENTS.
THE ADMINISTRATIVE AGENT (OR ITS
COUNSEL) SHALL HAVE RECEIVED (I) FROM EACH PARTY HERETO EITHER (A) A COUNTERPART
OF THIS AGREEMENT SIGNED ON BEHALF OF SUCH PARTY OR (B) WRITTEN EVIDENCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT (WHICH MAY INCLUDE FACSIMILE OR
ELECTRONIC TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS AGREEMENT) THAT SUCH