ANY LOAN PARTY, WHICH COULD REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT; AND (II) NO REPRESENTATIONS MADE OR INFORMATION
SUPPLIED TO AGENT AND LENDERS OR TERM LENDER SHALL HAVE BEEN PROVEN TO BE
INACCURATE OR MISLEADING IN ANY MATERIAL RESPECT;
(M)
CLOSING CERTIFICATE.
AGENT SHALL HAVE RECEIVED A CLOSING
CERTIFICATE SIGNED BY THE CHIEF FINANCIAL OFFICER OF LOAN PARTIES DATED AS OF
THE CLOSING DATE, STATING THAT (I) ALL REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT AND THE OTHER DOCUMENTS ARE TRUE AND CORRECT ON AND AS OF SUCH
DATE, (II) EACH LOAN PARTY IS ON SUCH DATE IN COMPLIANCE WITH ALL THE TERMS AND
PROVISIONS SET FORTH IN THIS AGREEMENT AND THE OTHER DOCUMENTS AND (III) ON SUCH
DATE NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED OR IS CONTINUING OR WOULD
RESULT FROM THE CONSUMMATION OF THE TRANSACTIONS;
(N)
BORROWING BASE.
AGENT SHALL HAVE RECEIVED A DULY EXECUTED
BORROWING BASE CERTIFICATE WHICH SHALL INDICATE THAT THE FORMULA AMOUNT IS
SUFFICIENT TO SUPPORT ADVANCES IN THE AMOUNT REQUESTED BY LOAN PARTIES ON THE
CLOSING DATE;
(O)
AMOUNT OF TERM LOAN.
THE ORIGINAL PRINCIPAL AMOUNT OF THE TERM
LOAN THAT THE BORROWER REQUESTS TO BORROW DOES NOT EXCEED AN AMOUNT EQUAL TO THE
LESSER OF: (I) $10,000,000 AND (II) THE SUM OF THE AGGREGATE TENDER OFFER
CONSIDERATION PAYABLE FOR ALL SENIOR SECURED NOTES ACCEPTED FOR PURCHASE
PURSUANT TO THE TRANSACTIONS, PLUS INTEREST PAYABLE ON SUCH SENIOR SECURED NOTES
PLUS THE FEES AND EXPENSES RELATED TO THE TRANSACTIONS, MINUS BORROWER'S CASH
AVAILABLE FOR THE TENDER OFFER AS OF THE CLOSING DATE;
(P)
TENDER OFFER CONSIDERATION.
THE AGGREGATE TENDER OFFER
CONSIDERATION IS NOT IN EXCESS OF THE MAXIMUM AGGREGATE PURCHASE PRICE.
THE
TERM "MAXIMUM AGGREGATE PURCHASE PRICE" SHALL HAVE THE MEANING ASCRIBED TO SUCH
TERM IN THE BORROWER'S OFFER TO PURCHASE DATED FEBRUARY 22, 2010, AS SUCH TERM
AND SUCH OFFER TO PURCHASE MAY BE AMENDED;
(Q)
SATISFACTION OR WAIVER OF CONDITIONS FOR AND CONSUMMATION OF
TRANSACTIONS.
THE CONDITIONS TO BORROWER'S OBLIGATIONS TO ACCEPT FOR PURCHASE
SENIOR SECURED NOTES AND PAY THE TENDER OFFER CONSIDERATION PURSUANT TO THE
TRANSACTIONS HAVE BEEN SATISFIED OR, WITH THE CONSENT OF THE TERM LENDER, WAIVED
AND, SIMULTANEOUSLY WITH THE MAKING OF THE TERM LOAN, BORROWER SHALL BE
CONSUMMATING THE PURCHASE OF SUCH SENIOR SECURED NOTES PURSUANT TO THE
TRANSACTIONS;
68
(R)
CLOSING DATE.
THE CLOSING DATE SHALL HAVE OCCURRED ON OR PRIOR
TO APRIL 2, 2010;
(S)
OTHER.
ALL CORPORATE AND OTHER PROCEEDINGS, AND ALL DOCUMENTS,
INSTRUMENTS AND OTHER LEGAL MATTERS IN CONNECTION WITH THE TRANSACTIONS SHALL BE
REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO AGENT, LENDERS, TERM LENDER AND
THEIR RESPECTIVE COUNSEL.
Each Lender and Term Lender, by delivering its signature page to this Agreement
and funding a Loan on the Closing Date, shall be deemed to have acknowledged
receipt of, and consented to and approved this Agreement and each Other Document
and each other document required to be approved by any Agent, the Required
Lenders, Term Lender, or Lenders, as