DATE OF SUCH
FAILURE) IN EACH CASE AT THE APPLICABLE RATE OF INTEREST FOR SUCH EURODOLLAR
RATE LOANS PROVIDED FOR HEREIN OVER (B) THE AMOUNT OF INTEREST (AS DETERMINED BY
SUCH LENDER) WHICH WOULD HAVE ACCRUED TO LENDER ON SUCH AMOUNT BY PLACING SUCH
AMOUNT ON DEPOSIT FOR A COMPARABLE PERIOD WITH LEADING BANKS IN THE INTERBANK
EURODOLLAR MARKET.
THIS COVENANT SHALL SURVIVE THE TERMINATION OR NON-RENEWAL
OF THIS AGREEMENT AND THE PAYMENT OF THE OBLIGATIONS.
SECTION
4.
CONDITIONS PRECEDENT
4.1
Conditions Precedent to Initial Loans and
Letters of Credit.
The obligation of Lender to make the initial Loans or to
issue the initial Letters of Credit hereunder is subject to
39
the satisfaction of, or waiver of, immediately prior to or concurrently with the
making of such Loan or the issuance of such Letter of Credit of each of the
following conditions precedent:
(A)
ALL REQUISITE CORPORATE AND LIMITED
LIABILITY COMPANY ACTION AND PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT AND
THE OTHER FINANCING AGREEMENTS SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO
LENDER, AND LENDER SHALL HAVE RECEIVED ALL INFORMATION AND COPIES OF ALL
DOCUMENTS, INCLUDING RECORDS OF REQUISITE CORPORATE AND LIMITED LIABILITY
COMPANY ACTION AND PROCEEDINGS WHICH LENDER MAY HAVE REASONABLY REQUESTED IN
CONNECTION THEREWITH, SUCH DOCUMENTS WHERE REQUESTED BY LENDER OR ITS COUNSEL TO
BE CERTIFIED BY APPROPRIATE CORPORATE OFFICERS OR LIMITED LIABILITY COMPANY
MANAGERS OR GOVERNMENTAL AUTHORITY (AND INCLUDING A COPY OF THE CERTIFICATE OF
INCORPORATION OR FORMATION OF EACH BORROWER AND GUARANTOR CERTIFIED BY THE
SECRETARY OF STATE (OR EQUIVALENT GOVERNMENTAL AUTHORITY) WHICH SHALL SET FORTH
THE SAME COMPLETE CORPORATE OR LIMITED LIABILITY COMPANY NAME OF SUCH BORROWER
OR GUARANTOR AS IS SET FORTH HEREIN AND SUCH DOCUMENT AS SHALL SET FORTH THE
ORGANIZATIONAL IDENTIFICATION NUMBER OF EACH BORROWER OR GUARANTOR, IF ONE IS
ISSUED IN ITS JURISDICTION OF INCORPORATION OR FORMATION);
(B)
LENDER SHALL HAVE RECEIVED, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO LENDER, A PRO-FORMA BALANCE SHEET OF PARENT
AND ITS SUBSIDIARIES DATED JANUARY 23, 2009 REFLECTING THE INITIAL TRANSACTIONS
CONTEMPLATED HEREUNDER AND UNDER THE PURCHASE AGREEMENTS, INCLUDING, BUT NOT
LIMITED TO (I) THE CONSUMMATION OF THE ACQUISITION OF THE PURCHASED ASSETS BY
FARMER FROM SELLERS AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE PURCHASE
AGREEMENTS AND (II) THE LOANS AND LETTERS OF CREDIT PROVIDED BY LENDER TO
BORROWERS ON THE DATE HEREOF AND THE USE OF THE PROCEEDS OF THE INITIAL LOANS AS
PROVIDED HEREIN, ACCOMPANIED BY A CERTIFICATE, DATED OF EVEN DATE HEREWITH, OF
THE CHIEF FINANCIAL OFFICER OF PARENT STATING THAT SUCH PRO-FORMA BALANCE SHEET
WAS PREPARED IN GOOD FAITH BY PARENT AND BASED ON ASSUMPTIONS THAT ARE
REASONABLE IN LIGHT OF ALL FACTS AND CIRCUMSTANCES KNOWN TO PARENT AT SUCH TIME;
(C)
NO MATERIAL ADVERSE CHANGE SHALL HAVE
OCCURRED IN THE ASSETS, BUSINESS OR PROSPECTS OF BORROWERS SINCE THE DATE OF
LENDER'S LATEST FIELD EXAMINATION (NOT INCLUDING FOR THIS PURPOSE THE FIELD
REVIEW REFERRED TO IN CLAUSE (D) BELOW) AND NO CHANGE OR EVENT SHALL HAVE
OCCURRED WHICH WOULD