SUCH BUYER THE
SHARE CERTIFICATE TO BE ISSUED TO SUCH BUYER.
F.
THE AMENDED AND RESTATED CREDIT AGREEMENT SHALL HAVE BEEN DULY
EXECUTED AND DELIVERED BY EACH OF THE COMPANY, THE SUBSIDIARIES AND EACH OF THE
LENDERS, AND EACH OF THE AMENDED AND RESTATED CREDIT AGREEMENT AND THAT CERTAIN
AMENDED AND RESTATED PRIVATE LABEL CONSUMER CREDIT PROGRAM AGREEMENT, DATED AS
OF DECEMBER 5, 2005, BETWEEN THE COMPANY AND GE MONEY BANK, SHALL BE IN FULL
FORCE AND EFFECT.
G.
EACH OF THE BOARD RESIGNATIONS SHALL HAVE BECOME EFFECTIVE AND
EACH OF THE BUYER DESIGNEES SHALL HAVE BEEN DULY APPOINTED TO THE COMPANY BOARD
WITH A TERM COMMENCING IMMEDIATELY FOLLOWING THE CLOSING.
H.
THE REQUIRED COMPANY CONSENTS SHALL HAVE BEEN OBTAINED OR MADE,
AND COPIES OF THE REQUIRED COMPANY CONSENTS SHALL HAVE BEEN DELIVERED TO SUCH
BUYER, AND EACH OF THE REQUIRED COMPANY CONSENTS SHALL BE IN FULL FORCE AND
EFFECT.
47
I.
THE COMPANY'S NET SALES FOR THE THREE-MONTH PERIOD ENDED ON THE
LAST DAY OF THE MONTH PRIOR TO THE MONTH IN WHICH THE CLOSING DATE IS SCHEDULED
TO OCCUR SHALL NOT BE LESS THAN THE CORRESPONDING AMOUNT FOR SUCH PERIOD AS SET
FORTH ON SCHEDULE 11(I).
J.
THE COMPANY SHALL NOT HAVE RECEIVED NOTICE FROM ANY GOVERNMENTAL
ENTITY OF ANY EVENT, DEVELOPMENT OR DETERMINATION THAT HAS RESULTED IN, OR WOULD
REASONABLY BE EXPECTED TO RESULT IN, OR THE COMPANY OTHERWISE HAS NOT DETERMINED
THAT A RESERVE SHOULD BE ESTABLISHED WITH RESPECT TO, ANY PORTION IN EXCESS OF
$2,000,000 OF THE APPROXIMATELY $23,000,000 U.S. FEDERAL INCOME TAX REFUND THE
COMPANY RECEIVED IN MARCH 2009 BEING REPAID TO ANY GOVERNMENTAL ENTITY.
K.
THE COMPANY SHALL HAVE MADE ALL FILINGS UNDER ALL APPLICABLE
SECURITIES LAWS NECESSARY TO CONSUMMATE THE TRANSACTIONS (EXCLUDING ANY
BENEFICIAL OWNERSHIP FILINGS REQUIRED TO BE MADE BY ANY OF THE BUYERS IN
ACCORDANCE WITH SECURITIES LAWS AS A RESULT OF THE TRANSACTIONS), INCLUDING THE
ISSUANCE OF THE SECURITIES PURSUANT TO THIS AGREEMENT, IN COMPLIANCE WITH SUCH
LAWS.
L.
THAT CERTAIN MANAGEMENT SERVICES AGREEMENT, BETWEEN THE COMPANY
AND STERLING FUND MANAGEMENT, LLC ("SFM"), SHALL HAVE BEEN DULY EXECUTED AND
DELIVERED BY THE COMPANY, IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT G
(THE "MANAGEMENT SERVICES AGREEMENT").
M.
EACH OF THE COMPANY BOARD AND THE COMMITTEE SHALL HAVE ADOPTED,
AND NOT RESCINDED OR OTHERWISE AMENDED OR MODIFIED, RESOLUTIONS CONSISTENT WITH
SECTION 3(B) ABOVE AND IN A FORM REASONABLY ACCEPTABLE TO A MAJORITY OF THE
BUYERS (COLLECTIVELY, THE "RESOLUTIONS").
N.
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER A CERTIFICATE
EVIDENCING THE INCORPORATION (OR OTHER ORGANIZATION) AND GOOD STANDING OF THE
COMPANY AND EACH SUBSIDIARY IN SUCH ENTITY'S STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION, ISSUED BY THE SECRETARY OF STATE (OR OTHER
APPLICABLE AUTHORITY) OF SUCH STATE OR JURISDICTION OF INCORPORATION OR
ORGANIZATION AS OF A DATE WITHIN TEN DAYS OF THE CLOSING DATE.
O.
THE COMPANY SHALL HAVE DELIVERED TO SUCH BUYER A SECRETARY'S
CERTIFICATE, DATED AS OF THE CLOSING DATE, CERTIFYING AS TO (I) THE RESOLUTIONS,