TO THE SATISFACTION, OR WAIVER IN ACCORDANCE WITH SECTION 10.04, OF THE
FOLLOWING CONDITIONS PRECEDENT:
(I)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A FULLY EXECUTED AND
DELIVERED FUNDING NOTICE OR ISSUANCE NOTICE, AS THE CASE MAY BE;
(II)
AFTER MAKING THE CREDIT EXTENSIONS REQUESTED ON SUCH CREDIT DATE,
THE TOTAL UTILIZATION OF REVOLVING COMMITMENTS SHALL NOT EXCEED THE REVOLVING
COMMITMENTS THEN IN EFFECT;
(III)
AS OF THE CLOSING DATE, (Y) THE REPRESENTATIONS AND WARRANTIES
MADE BY CHEM RX IN THE STOCK PURCHASE AGREEMENT AND THE MERGER AGREEMENT AS ARE
MATERIAL TO THE INTERESTS OF THE LENDERS, BUT ONLY TO THE EXTENT THAT THE
BORROWER HAS THE RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE STOCK PURCHASE
AGREEMENT OR THE MERGER AGREEMENT, RESPECTIVELY, AS A RESULT OF BREACH OF SUCH
REPRESENTATIONS AND WARRANTIES, AND (Z) THE REPRESENTATIONS AND WARRANTIES MADE
IN SECTIONS 4.01, 4.03,
4.06, 4.16 AND 4.17 IN EACH CASE SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE (OR, IF ANY SUCH
REPRESENTATION AND WARRANTY IS EXPRESSLY STATED TO HAVE BEEN MADE AS OF A
SPECIFIC DATE, AS OF SUCH SPECIFIC DATE),
(IV)
AS OF EACH CREDIT DATE OTHER THAN THE CLOSING DATE, THE
REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND IN THE OTHER LOAN DOCUMENTS
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THAT CREDIT DATE
TO THE SAME EXTENT AS THOUGH MADE ON AND AS OF THAT DATE, EXCEPT TO THE EXTENT
SUCH REPRESENTATIONS AND WARRANTIES SPECIFICALLY RELATE TO AN EARLIER DATE, IN
WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND CORRECT
IN ALL MATERIAL RESPECTS ON AND AS OF SUCH EARLIER DATE;
(V)
AS OF SUCH CREDIT DATE, NO EVENT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD RESULT FROM THE CONSUMMATION OF THE APPLICABLE CREDIT
EXTENSION THAT WOULD CONSTITUTE AN EVENT OF DEFAULT OR A DEFAULT; AND
(VI)
ON OR BEFORE THE DATE OF ISSUANCE OF ANY LETTER OF CREDIT,
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL OTHER INFORMATION REQUIRED BY THE
APPLICABLE ISSUANCE NOTICE, AND SUCH OTHER DOCUMENTS OR INFORMATION AS ISSUING
BANK MAY REASONABLY REQUIRE IN CONNECTION WITH THE ISSUANCE OF SUCH LETTER OF
CREDIT.
Any Agent or Requisite Lenders shall be entitled, but not obligated, to request
and receive, prior to the making of any Credit Extension, additional information
reasonably satisfactory to the requesting party confirming the satisfaction of
any of the foregoing if, in the good faith judgment of such Agent or Requisite
Lender such request is warranted under the circumstances.
64
(B)
NOTICES. ANY NOTICE SHALL BE EXECUTED BY AN AUTHORIZED OFFICER IN
A WRITING DELIVERED TO ADMINISTRATIVE AGENT.
Section 3.03
Conditions to the Credit Extension of Delayed Draw Term
Loans.
The obligation of each Lender to make any Delayed Draw Term Loan on any Delayed
Draw Term Loan Credit Date are subject to the satisfaction, or waiver in
accordance with Section 10.04, of the following additional conditions precedent:
(A)
AT LEAST 5 BUSINESS DAYS PRIOR TO ANY