THE FOREGOING SHALL BE IN FULL FORCE AND EFFECT AND IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE
LENDERS.
ALL APPLICABLE WAITING PERIODS SHALL HAVE EXPIRED WITHOUT ANY ACTION
BEING TAKEN OR THREATENED BY ANY COMPETENT AUTHORITY WHICH WOULD RESTRAIN,
PREVENT OR OTHERWISE IMPOSE MATERIAL ADVERSE CONDITIONS ON THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS OR THE FINANCING THEREOF AND NO ACTION,
REQUEST FOR STAY, PETITION FOR REVIEW OR REHEARING, RECONSIDERATION, OR APPEAL
WITH
51
RESPECT TO ANY OF THE FOREGOING SHALL BE PENDING, AND THE TIME FOR ANY
APPLICABLE AGENCY TO TAKE ACTION TO SET ASIDE ITS CONSENT ON ITS OWN MOTION
SHALL HAVE EXPIRED.
(II)
PATRIOT ACT.
EACH OF THE LENDERS SHALL
HAVE RECEIVED, AT LEAST TWO (2) BUSINESS DAYS IN ADVANCE OF THE EFFECTIVE DATE,
ALL DOCUMENTATION AND OTHER INFORMATION REQUIRED BY GOVERNMENTAL AUTHORITIES
UNDER APPLICABLE "KNOW-YOUR-CUSTOMER" AND ANTI-MONEY LAUNDERING RULES AND
REGULATIONS, INCLUDING AS REQUIRED BY THE UNITING AND STRENGTHENING AMERICA BY
PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA
PATRIOT ACT) ACT OF 2001 (THE "PATRIOT ACT").
EACH LENDER AND EACH AGENT (FOR
ITSELF AND NOT ON BEHALF OF ANY LENDER) HEREBY NOTIFIES THE BORROWER THAT
PURSUANT TO THE REQUIREMENTS OF THE PATRIOT ACT, IT IS REQUIRED TO OBTAIN,
VERIFY AND RECORD INFORMATION THAT IDENTIFIES THE BORROWER, WHICH INFORMATION
INCLUDES THE NAME AND ADDRESS OF THE BORROWER AND OTHER INFORMATION THAT WILL
ALLOW SUCH LENDER OR SUCH AGENT, AS APPLICABLE, TO IDENTIFY THE BORROWER IN
ACCORDANCE WITH THE PATRIOT ACT.
F.
MATERIAL ADVERSE EFFECT.
SINCE DECEMBER
31, 2005, THERE SHALL NOT HAVE OCCURRED A MATERIAL ADVERSE EFFECT.
G.
NO LITIGATION.
(I) NO ACTION, SUIT,
INVESTIGATION, LITIGATION, ARBITRATION OR PROCEEDING (WHETHER ADMINISTRATIVE,
JUDICIAL OR OTHERWISE) AFFECTING THE BORROWER OR ANY OF ITS SUBSIDIARIES SHALL
BE PENDING OR THREATENED BEFORE ANY COURT, GOVERNMENTAL AUTHORITY OR ARBITRATOR
THAT COULD BE REASONABLY EXPECTED TO, INDIVIDUALLY OR IN THE AGGREGATE, (A) HAVE
A MATERIAL ADVERSE EFFECT, OTHER THAN THE MATTERS SET FORTH IN THE BORROWER'S
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION PRIOR TO THE EFFECTIVE DATE
(THE "DISCLOSED LITIGATION"), (B) MATERIALLY IMPAIR THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS OR (C) IN ANY MANNER CALL INTO QUESTION OR
CHALLENGE THIS AGREEMENT OR THE MAKING OF THE LOANS AND (II) NO MATERIAL ADVERSE
CHANGE IN THE STATUS, OR FINANCIAL EFFECT ON THE BORROWER OR ANY OF ITS
SUBSIDIARIES, OF THE DISCLOSED LITIGATION FROM THAT DESCRIBED IN THE BORROWER'S
FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION PRIOR TO THE EFFECTIVE DATE
SHALL HAVE OCCURRED.
3.2
Conditions Precedent to each Credit Extension.
Subject to Section 11, the obligations of Lenders to make any Credit Extension
hereunder, including any Credit Extension made on the Effective Date, are
subject to the satisfaction of the following conditions:
A.
NOTICE OF BORROWING.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2.1B,
ORIGINALLY EXECUTED NOTICE(S) OF BORROWING SIGNED BY THE APPLICABLE CREDIT
PARTY.
B.
OUTSTANDING AMOUNTS.
AFTER GIVING EFFECT
TO THE MAKING OF SUCH CREDIT