CASH ON HAND OF THE GROUP MEMBERS PLUS EXCESS
AVAILABILITY, AFTER GIVING EFFECT TO THE LOANS TO BE MADE AND ANY LETTERS OF
CREDIT TO BE ISSUED ON THE CLOSING DATE, IS AT LEAST $5,000,000.
(G)
COLLATERAL AUDITS AND APPRAISALS.
THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED A BORROWING BASE AUDIT WITH RESPECT TO THE RELEVANT
COLLATERAL TO BE INCLUDED IN THE BORROWING BASE AND THE RELEVANT ACCOUNTING
SYSTEMS, POLICIES AND PROCEDURES OF THE ACQUIRED BUSINESS BY AN AUDITING FIRM
SATISFACTORY TO THE ADMINISTRATIVE AGENT IN FORM AND SUBSTANCE SATISFACTORY TO
THE ADMINISTRATIVE AGENT, AND A ROLL-FORWARD OF THE BORROWING BASE AUDITS WITH
RESPECT TO THE RELEVANT COLLATERAL TO BE INCLUDED IN THE BORROWING BASE THROUGH
THE MONTH ENDED FEBRUARY 28, 2010.
(H)
APPROVAL BY BANKRUPTCY COURT.
THE ACQUISITION AGREEMENT AND
THE ACQUISITION SHALL HAVE BEEN APPROVED PURSUANT TO ORDERS ENTERED BY THE
BANKRUPTCY COURT, WHICH ORDERS SHALL CONTAIN A FINDING THAT BORROWER IS A GOOD
FAITH PURCHASER ENTITLED TO THE PROTECTIONS AND BENEFITS OF SECTION 363(M) OF
THE BANKRUPTCY CODE AND SHALL OTHERWISE BE IN THE FORM ATTACHED AS EXHIBITS G
AND H TO THE ACQUISITION AGREEMENT. SUCH ORDER SHALL NOT HAVE BEEN STAYED BY THE
BANKRUPTCY COURT OR ANY OTHER COURT HAVING JURISDICTION TO ISSUE ANY SUCH STAY.
SECTION 3.2
CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT
.
THE OBLIGATION OF EACH LENDER ON ANY DATE (INCLUDING THE CLOSING DATE) TO
MAKE ANY LOAN AND OF EACH L/C ISSUER ON ANY DATE (INCLUDING THE CLOSING DATE) TO
ISSUE ANY LETTER OF CREDIT IS SUBJECT TO THE SATISFACTION OF EACH OF THE
FOLLOWING CONDITIONS PRECEDENT:
(A)
REQUEST.
THE ADMINISTRATIVE AGENT (AND, IN THE CASE OF ANY
ISSUANCE, THE RELEVANT L/C ISSUER) SHALL HAVE RECEIVED, TO THE EXTENT REQUIRED
BY ARTICLE II, A WRITTEN, TIMELY AND DULY EXECUTED AND COMPLETED NOTICE OF
BORROWING, SWINGLINE REQUEST OR, AS THE CASE MAY BE, L/C REQUEST.
(B)
REPRESENTATIONS AND WARRANTIES; NO DEFAULTS.
THE FOLLOWING
STATEMENTS SHALL BE TRUE ON SUCH DATE, BOTH BEFORE AND AFTER GIVING EFFECT TO
SUCH LOAN OR, AS APPLICABLE, SUCH ISSUANCE:
(I) THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ANY LOAN DOCUMENT SHALL BE TRUE AND CORRECT (A) IF SUCH
DATE IS THE CLOSING DATE, ON AND AS OF SUCH DATE AND (B) OTHERWISE, IN ALL
MATERIAL RESPECTS ON AND AS OF SUCH DATE OR, TO THE EXTENT SUCH REPRESENTATIONS
AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE, ON AND AS OF SUCH EARLIER
DATE AND (II) NO DEFAULT SHALL BE CONTINUING.
NOTWITHSTANDING THE FOREGOING,
THE ONLY REPRESENTATIONS AND WARRANTIES AS TO THE ACQUIRED BUSINESS THAT SHALL
BE REQUIRED TO BE TRUE AND CORRECT ON THE CLOSING DATE AS A CONDITION TO THE
OBLIGATION OF EACH LENDER TO MAKE ANY LOANS OR ISSUE ANY LETTERS OF CREDIT ON
THE CLOSING DATE SHALL BE (X) THE REPRESENTATIONS MADE BY OR WITH RESPECT TO THE
ACQUIRED BUSINESS IN THE ACQUISITION AGREEMENT, TO THE EXTENT THE INACCURACY OF
WHICH WOULD CAUSE THE CONDITIONS PRECEDENT TO HOLDINGS' OR THE BORROWER'S
OBLIGATION TO