HAVE EXECUTED COUNTERPARTS TO THE GUARANTY
AGREEMENT AND SECURITY AGREEMENT IN ORDER TO BECOME A GUARANTOR AND OBLIGOR (AS
DEFINED IN THE SECURITY AGREEMENT) THEREUNDER AND THE EQUITY INTEREST IN SUCH
PERSON SHALL HAVE BEEN PLEDGED TO THE AGENT, ALL IN ACCORDANCE WITH THE TERMS OF
SECTION 5.14 HEREOF.
4.02.8.
FUNDING DATE.
THE FUNDING DATE SHALL OCCUR NO LATER THAN OF
MARCH 31, 2010.
4.02.9.
LANDLORD WAREHOUSEMAN AGREEMENTS.
THE BORROWER SHALL HAVE
DELIVERED TO THE AGENT LANDLORD AGREEMENTS AND WAREHOUSE AGREEMENTS, IN FORMS
REASONABLY ACCEPTABLE TO THE AGENT, FOR EACH LOCATION ANY COLLATERAL IS LOCATED
WHICH IS NOT OWNED BY A LOAN PARTY UNLESS:
(I) THE COLLATERAL IS HELD BY A
PROCESSOR OR BAILEE FOR WHICH THE BORROWER HAS COMPLIED WITH THE LAST SENTENCE
OF SECTION 5.06 OF THIS AGREEMENT; (II) THE BORROWER DELIVERS TO THE AGENT A
CERTIFICATION THAT THE BORROWER, AFTER USING COMMERCIALLY REASONABLE EFFORTS,
HAS BEEN UNABLE TO OBTAIN SUCH AGREEMENT, OR (III) THE LOCATION IS A WAREHOUSE
FOR WHICH THE VALUE OF THE COLLATERAL HELD IN SUCH WAREHOUSE IS LESS THAN ONE
MILLION DOLLARS ($1,000,000.00).
4.02.10.
ADDITIONAL DOCUMENTS.
THE BORROWER SHALL HAVE EXECUTED AND
DELIVERED TO THE AGENT AN APPROPRIATE LENDER ADDENDUM, REVOLVING CREDIT NOTE AND
TERM NOTE FOR EACH LENDER BASED ON EACH LENDER'S COMMITMENTS
4.02.11.
LIEN RELEASE.
THE BORROWER SHALL HAVE PROVIDED EVIDENCE
REASONABLY ACCEPTABLE TO THE AGENT THAT ALL SECURITY INTERESTS AND LIENS (OTHER
THAN LIENS WHICH ARE PERMITTED
45
ENCUMBRANCES) ON THE ASSETS OF ALL PERSONS TO BECOME A SUBSIDIARY OF THE
BORROWER AS A RESULT OF THE ACQUISITION HAVE BEEN TERMINATED OR WILL BE
TERMINATED AS OF THE FUNDING DATE.
Section 4.03.
Conditions To Advances Of Proceeds Of Loans And Issuances
Of Letters Of Credit After Closing Date.
The obligations of each Lender and of
the Issuing Lender to honor any request for the advance of any proceeds of the
Loans or the issuance or reissuance of any Letters of Credit after the Closing
Date or request to renew or amend any Letter of Credit after the Closing Date,
shall be subject to the satisfaction of the following conditions precedent:
4.03.1.
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE LOAN PARTIES CONTAINED IN ARTICLE 3 OF THIS AGREEMENT OR IN
ANY OTHER CREDIT DOCUMENT, OR WHICH ARE CONTAINED IN ANY DOCUMENT FURNISHED AT
ANY TIME UNDER OR IN CONNECTION HEREWITH OR THEREWITH, SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF ANY SUCH ADVANCE OF PROCEEDS
OF THE LOANS OR ISSUANCE OF LETTERS OF
CREDIT, EXCEPT TO THE EXTENT THAT SUCH
REPRESENTATIONS AND WARRANTIES SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH
CASE THEY SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER
DATE.
4.03.2.
ABSENCE OF DEFAULTS AND EVENTS OF DEFAULT.
NO CONTINUING
DEFAULT OR EVENT OF DEFAULT SHALL EXIST, OR WOULD RESULT FROM SUCH REQUESTED
ADVANCE OR ISSUANCE.
4.03.3.
NO MATERIAL ADVERSE CHANGES.
NO MATERIAL ADVERSE CHANGES SHALL
HAVE OCCURRED SINCE THE CLOSING DATE.
ARTICLE 5