the Loan Documents.
Any balance remaining shall be delivered to Borrower or to whomever may be
lawfully entitled to receive such balance or as a court of competent
jurisdiction may direct.
SECTION 7.
CONDITIONS TO LOANS
7.1
CONDITIONS TO INITIAL LOANS.
THE
OBLIGATIONS OF LENDERS AND L/C ISSUERS TO MAKE THE INITIAL LOANS AND TO ISSUE OR
CAUSE TO BE ISSUED LETTERS OF CREDIT ON OR AT ANY TIME AFTER THE RESTATEMENT
EFFECTIVE DATE ARE, IN ADDITION TO THE CONDITIONS PRECEDENT SPECIFIED IN
SECTION 7.2, SUBJECT TO SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT IN A
MANNER REASONABLY ACCEPTABLE TO AGENT IN ITS SOLE DISCRETION:
(A)
BORROWER AND/OR THE APPLICABLE CREDIT PARTY
SHALL HAVE DELIVERED OF ALL DOCUMENTS LISTED ON, TAKEN ALL ACTIONS SET FORTH ON
AND SATISFIED OF ALL OTHER CONDITIONS PRECEDENT LISTED ON THE CLOSING CHECKLIST
(OTHER THAN THE LANDLORD WAIVER AND CONSENT WITH RESPECT TO BORROWER'S IRVINE,
CALIFORNIA FACILITY AND THOSE DOCUMENTS OR CONDITIONS WAIVED BY AGENT IN
WRITING);
(B)
THE INTERCREDITOR AGREEMENT SHALL HAVE
EITHER BEEN REAFFIRMED OR AMENDED AND RESTATED IN A MANNER REASONABLY
SATISFACTORY TO AGENT AND THE INDEBTEDNESS OF BORROWER UNDER THE SENIOR
INDENTURE SHALL NOT EXCEED $46,630,000;
(C)
BORROWER'S MOST RECENT PROJECTIONS
DELIVERED ON OR ABOUT THE END OF BORROWER'S FISCAL YEAR ENDED DECEMBER 31, 2003
SHALL BE REASONABLY ACCEPTABLE TO AGENT AND LENDERS;
(D)
AGENT SHALL BE REASONABLY SATISFIED AS TO
THE ABSENCE, SINCE DECEMBER 31, 2003, OF ANY MATERIAL ADVERSE CHANGE IN THE
BUSINESS, OPERATIONS, PROPERTIES OR CONDITION (FINANCIAL OR OTHERWISE) OF
BORROWER, ANY CREDIT PARTY, OR ANY EVENT OR CONDITION WHICH COULD REASONABLY BE
EXPECTED TO RESULT IN SUCH A MATERIAL ADVERSE CHANGE;
(E)
THE IPO SHALL HAVE BEEN CONSUMMATED AND
BORROWER SHALL HAVE RECEIVED NOT LESS THAN $70,000,000 NET PROCEEDS THEREFROM
AND AFTER GIVING EFFECT TO THE PAYOFFS, AND THE INITIAL FUNDING OF ANY LOANS
AND/OR THE ISSUANCE OF ANY LETTER(S) OF CREDIT ON THE RESTATEMENT EFFECTIVE DATE
AND THE ESTABLISHMENT OF ANY RESERVES REQUIRED BY AGENT (INCLUDING, WITHOUT
LIMITATION, A RESERVE FOR CLOSING COSTS INCURRED BY BORROWER IN CONNECTION WITH
THIS CREDIT FACILITY), THE TOTAL AMOUNT OF ALL OBLIGATIONS SHALL NOT EXCEED
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$5,000,000 AND BORROWER SHALL HAVE NOT LESS THAN $8,000,000 OF BORROWING
AVAILABILITY HEREUNDER;
(F)
AFTER GIVING EFFECT TO THE INITIAL
FUNDING OF THE LOANS AND/OR ISSUANCE OF ANY LETTER(S) OF CREDIT ON THE
RESTATEMENT EFFECTIVE DATE, THE RATIO OF (X) TOTAL DEBT (AS OF THE RESTATEMENT
EFFECTIVE DATE AND AS MEASURED UNDER THE EXISTING CREDIT AGREEMENT) TO (Y)
EBITDA FOR THE TWELVE MONTH PERIOD ENDING DECEMBER 31, 2003 BASED ON BORROWER'S
MOST CURRENT FINANCIAL STATEMENTS DELIVERED TO AGENT, DOES NOT EXCEED 4.25;
(G)
AGENT SHALL HAVE RECEIVED EVIDENCE
REASONABLY ACCEPTABLE TO IT OF THE CONSUMMATION OF THE PAYOFFS AND ASSOCIATED
LIEN RELEASES UTILIZING PROCEEDS FROM THE IPO;
(H)
AGENT SHALL HAVE RECEIVED FULLY EXECUTED
DEPOSIT ACCOUNT CONTROL AGREEMENTS, LOCK-BOX AGREEMENTS, SECURITIES ACCOUNT
CONTROL AGREEMENTS AND OTHER CASH MANAGEMENT AGREEMENTS WITH WELLS FARGO BANK,
N.A. AND EACH OTHER BANK, IF ANY, WHERE BORROWER MAINTAINS A