Common use of Conditions Precedent to Initial Borrowing Clause in Contracts

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation obligations of each Lender the Lenders to make an Advance on Revolving Loans and the occasion obligations of the initial Borrowing any Issuer to Issue Letters of Credit shall, in each case, shall be subject to the satisfaction on such date or due waiver in accordance with Section 12.1 of each of the following conditions precedent:, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”): (a) Since May 31The Administrative Agent’s receipt of the following, 2004 there each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default; (ii) executed counterparts of this Agreement and the Guaranty; (iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date; (iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with: (A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) [Reserved]; and (C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have occurred been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be continuing any Material Adverse Effecta party on the Effective Date; (vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1; (vii) an opinion from Xxxxxxxxx Xxxxxxx LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2; (viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M; (ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named; (x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; (xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and (xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers. (b) All governmental fees and third party consents reasonable and approvals necessary in connection with documented out-of-pocket expenses required to be paid on or before the transactions contemplated hereby Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been obtained paid in full in cash (without which such amounts, notwithstanding the imposition of any conditions that are not acceptable to foregoing, may be offset against the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment proceeds of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebyFacility). (c) There Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall not have been, without been consummated; and (ii) the consent of Joint Lead Arrangers, which Merger shall not be unreasonably withheld, delayed or conditioned, any consummated in all material modification to respects in accordance with the terms and provisions of the documentation relating Merger Agreement. (d) Prior to or substantially simultaneously with the Tender Offer (except for an extension of initial Borrowings on the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the TargetEffective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and Offer Subsidiary (the “Tender Offer Documentation”ii) at least $250,000,000 in gross cash proceeds from the forms issuance of such Tender Offer Documentation most recently delivered to the Agent Senior Notes. (e) The Intercreditor Agreement and the Lenders prior to the date of execution of this Agreement Term Facility Documentation shall have been duly executed and delivered by all parties hereto; each party thereto, and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (df) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of Prior to or substantially simultaneously with the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On initial Borrowing on the Effective Date, the following statements Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto. (g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements. (h) The Arrangers shall have received the Pro Forma Financial Statements. (i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date. (k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect. (l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000. (m) The Merger Agreement Representations and the Specified Representations shall be true and the Agent shall have received for the account of each Lender a certificate signed correct in all material respects (or, if qualified by a duly authorized officer of the Borrower“materiality”, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any “Material Adverse Effect, ” or similar language, in all respects (iiafter giving effect to such qualification)) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Defaultunless such failure gives Holdings the right to terminate its obligations under the Merger Agreement. (fn) The Administrative Agent shall have received on or before a certificate of a Responsible Officer of the Effective Date Borrower in form and substance reasonably satisfactory to the followingAdministrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each dated Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order borrowing of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There Lender shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification made available to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Administrative Agent prior to the date such Lender’s Ratable Portion of execution of this Agreement by all parties heretosuch Borrowing or Swing Loans. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation initial Borrowing of each Lender to make an Advance Advances under this Agreement shall be made on the occasion and as of the initial Borrowing shall be subject to first date (the satisfaction “Closing Date”) on such date of which the following conditions precedentprecedent have been satisfied: (a) Since May 31All amounts owing by the Initial Borrower under the Existing Credit Agreement shall have been, 2004 there or concurrently with the initial Borrowing hereunder shall not be, paid in full, and all commitments of the lenders thereunder shall have occurred and be continuing any Material Adverse Effectbeen, or concurrently with the initial Borrowing hereunder shall be, terminated in accordance with the terms of the Existing Credit Agreement. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the The Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (ec) On the Effective Closing Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer representative of the Initial Borrower, dated the Effective Closing Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Closing Date, and (iiiii) No event has occurred and is continuing that constitutes a Default. (fd) The Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Datesuch date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of each of the charter or other organizational documents of the Initial Borrower and of resolutions of the Board of Directors of the Initial Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement. (iiiii) A certificate of the Secretary or an Assistant Secretary authorized representative of the Initial Borrower certifying the names and true signatures of the officers other authorized representatives of the Initial Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iii) [Intentionally Omitted]. (iv) A favorable opinion Favorable written opinions of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Borrower, in the form of (A) Exhibit D-2 andC-1 hereto from Luxembourg counsel to the Initial Borrower, in each case(B) Exhibit C-2 hereto from the Initial Borrower’s special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Wxxxxxxxxx & Txxx LLP, special counsel to the Initial Borrower. (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each the Lender to make an Advance on Loans after the occasion of Effective Date in connection with the initial Borrowing shall be hereunder is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31The Lender shall have received a guarantee in form and substance reasonably satisfactory to the Lender from each of the Parent, 2004 there shall not have occurred Tax Services of America, Inc., Delaware corporation and be continuing any Material Adverse EffectHewfant, Inc., a Virginia corporation (together with the Borrower, the “Credit Parties” and each a “Credit Party”). (b) All governmental The Lender shall have received a certificate dated as of a date no later than the Effective Date from the Secretary of each Credit Party certifying as to the incumbency and third party consents and approvals necessary in connection with genuineness of the transactions signature of each officer of such Credit Party executing this Agreement or any agreement, instrument or other document contemplated hereby shall have been obtained (without each a “Credit Document” and collectively, the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion“Credit Documents”) and shall remain in effectthat attached thereto is a true and complete copy of (i) the articles of incorporation of such Credit Party and all amendments thereto certified as of a recent date by the Secretary of State of its jurisdiction of incorporation, (ii) the bylaws of such Credit Party and no law or regulation shall be applicable in all amendments thereto and (iii) resolutions adopted by the reasonable judgment Board of Directors of such Credit Party, authorizing the execution, delivery and performance of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebyCredit Documents to which such Credit Party is a party. (c) There The Lender shall not have been, without received a certificate from the consent Secretary of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions State of the documentation relating to the Tender Offer (except for an extension state of the Tender Offer period)incorporation of each Credit Party, including, without limitation, the Agreement and Plan of Merger dated as of December 12a recent date, 2004 among as to the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms existence of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer DocumentationCredit Party. (d) The Lender shall have received an opinion of legal counsel to the Credit Parties dated as of date no later than the Effective Date in substantially the form attached hereto as Exhibit A. (e) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses to the Lender when due the upfront fee in clause (1) of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer second paragraph of the Borrower, Fee Letter dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by date hereof between the Borrower and the other documents to be delivered hereunderLender (the “Fee Letter”). (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions further condition precedent that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrowerreceived, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Datedate of such initial Borrowing (unless otherwise indicated), in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each LenderLenders: (ia) The Notes Servicing Agreement referred to in Section 5.01(s), duly executed by the Deputy Attorney General of the State of Pennsylvania to evidence its approval of such agreement as to form and legality; (b) A favorable opinion of counsel to PHEAA, in its capacity as a Servicer, in form and substance reasonably satisfactory to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17.Agent; (iic) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the NotesThe Verification Agent Agreement, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered duly executed by the Borrower and the other documents Verification Agent, and certified by the Borrower as being a true and correct copy thereof; (d) Evidence that at the initial Borrowing (after giving effect to deposits into the Reserve Account pursuant to Section 3.04(a) hereof on such date) the amount on deposit in the Reserve Account is at least equal to the Reserve Account Minimum Balance; (e) The Schedule of Pledged Student Loans with respect to each Student Loan that is to be delivered hereunder.acquired or otherwise funded with the proceeds of such initial Borrowing and the Agent shall have completed its due diligence with respect to each of the Student Loans listed on the Schedule of Pledged Student Loans and shall not have rejected any of the Student Loans listed on the Schedule of Pledged Student Loans as not being Eligible Student Loans; (ivf) A favorable legal opinion of Hudson Cook LLP, counsel to the Bxxxxxxr, xx form and substance reasonably satisfactory to the Agent, concluding that (i) in-house counsel for the Borrower in the form is permitted under all applicable laws to be a lender of Exhibit D-1 Student Loans [CONFIDENTIAL](12) and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for that the Borrower, in the Underwriting Guidelines and form of Exhibit D-2 and, in each case, in form the Student Loan Notes comply with all consumer protection and substance satisfactory to the Agent.other applicable laws; (vg) There shall not have beenA Warehouse Trust Receipt from the Custodian acknowledging that it is holding, without the consent as bailee on behalf of the Agent, which an original Student Loan Note with respect to each Pledged Student Loan; and (h) A pro-forma settlement statement prepared in respect of the initial Borrowing (that shall not include a pro forma Coverage Condition Certificate and a certification that all representations and warranties hereunder are true and correct, and shall include, or be unreasonably withheldaccompanied by a listing of Pledged Student Loans). By accepting the proceeds of the initial Borrowing, delayed or conditioned, any material modification the Borrower shall be deemed to have represented and warranted that all of the conditions precedent to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy commencement of the Borrower’s investment policy as in effect on the Effective DateRevolving Period have been met.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an its initial Advance on the occasion of the initial Borrowing hereunder shall be subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to that the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower and the Collateral Manager as in effect on the Funding Effective Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower and of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) its certificate of good standing issued by the jurisdiction of its organization, (iii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iv) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (v) no Default or Event of Default has occurred and is continuing, and (vi) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, duly filed on or before the Funding Effective Date, under the UCC in all jurisdictions that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (f) payoff or release letters evidencing the termination of, and repayment in full of obligations under, the Prior Credit Agreement, and copies of proper financing statement filings necessary to release or assign (in the discretion of the Administrative Agent) all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any transferor in connection with the Prior Credit Agreement; (g) legal opinions (addressed to each of the Secured Parties) of Dechert LLP, New York counsel to the Borrower and the Collateral Manager and Nixon Peabody LLP, counsel to the Collateral Agent, covering such matters as the Administrative Agent and its counsel shall reasonably request; (except h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (i) evidence that (x) all fees to be received by each Lender on or prior to the Closing Date have been received; and (y) the accrued fees and expenses of Chapman and Cutler, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date), shall have been paid by the Borrower; (j) an executed counterpart of the Collateral Agent Fee Letter; (k) Delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the Notesextent received by the Borrower) in sufficient copies for accordance with the provisions of Article XIV shall have been effected; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each Lenderitem of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) The Notes to the order Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Lenders to the extent requested by any Lender Closing Date and (B) those granted pursuant to Section 2.17.this Agreement; (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery has acquired its ownership in such Collateral in good faith without notice of this Agreement and the Notesany adverse claim, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.except as described in clause (i) above; (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Noteshas not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if anyany such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to be delivered by the Borrower and the other documents to be delivered hereunder.this Agreement; (iv) A favorable opinion of (i) in-house counsel for the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) this Agreement creates, upon Delivery of Collateral, filing of the financing statements required hereunder and execution of the Account Control Agreement, a first priority, perfected security interest in the form Collateral, except as permitted by this Agreement; (m) reserved; (n) an executed Certificate of Exhibit D-1 Beneficial Ownership and all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (iior its equivalent) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, the Collateral Manager and the BDC; (o) a closing certificate from the Borrower substantially in the form of set forth on Exhibit D-2 andH hereto; (p) on or before the Closing Date, in each case, in form and substance satisfactory delivery to the Agent.Custodian of Related Documents for initial Eligible Collateral Loans; (vq) There shall not have beensuch other opinions, without the consent of the Agentinstruments, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for certificates and documents from the Borrower and its Subsidiaries most recently delivered to as the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent Agents or any Lender shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Daterequested.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the occurrence of the Amendment Effective Date and the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred This Agreement and be continuing any Material Adverse Effect. (b) All governmental the Amended and third party consents and approvals necessary in connection with the transactions contemplated hereby Restated Bridge Credit Agreement shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) duly executed and shall remain in effect, delivered and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary . (b) The Lenders shall have accepted received: (i) a solvency certificate duly executed and delivered by the chief financial or accounting officer of the Borrower authorized to sign such certificate, dated as of the Amendment Effective Date, substantially in the form of Exhibit E hereto, (ii) favorable opinions of Sidley Austin LLP, counsel for purchase not less than the Minimum Shares pursuant Borrower, and Crane X. Xxxxxx, General Counsel of the Borrower, in each case dated as of the Amendment Effective Date, substantially in the form of Exhibits D-1 and D-2 hereto, respectively, (iii) copies of the audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 25, 2005 and the related audited Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal year ended December 25, 2005, accompanied by an opinion of Pricewaterhouse Coopers LLP, independent public accountants, (iv) copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006 and the related Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended March 26, 2006, (v) copies of the unaudited pro forma condensed Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006, and the related unaudited pro forma combined statements of operations of the Borrower and its Subsidiaries for the year then ended, after giving effect to the Tender Offer; all conditions precedent to execution and delivery of this Agreement, the purchase by Offer Subsidiary making of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt Advances hereunder and the use of the proceeds hereof in connection with thereof as contemplated hereunder (including to consummate the Initial BorrowingStock Repurchase and the Refinancing); and , all other aspects of such portion of the Tender Offer shall have been conducted in accordance with GAAP as in effect on the Tender Offer Documentationdate of preparation thereof, and (vi) copies of reasonably detailed pro forma Consolidated financial projections prepared by or on behalf of the Borrower for the Borrower and its Subsidiaries, taken as a whole, for the five-fiscal year period after the Original Effective Date that are not different in a materially adverse manner as compared with those made available to the Lead Arrangers prior to the Original Effective Date. (dc) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the Agent shall have received for acceptance by the account of each Lender a certificate signed by a duly authorized officer Borrower of the Borrower, dated proceeds of such Borrowing shall constitute a representation and warranty by the Effective Date, stating that:Borrower that on the date of such Borrowing such statements are true): (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The the representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, before and after giving effect to such Borrowing and to the Effective Dateapplication of the proceeds therefrom, as though made on and as of such date, and (iiiii) No no event has occurred and is continuing continuing, or would result from such Borrowing, or from the application of the proceeds therefrom, that constitutes would result in a Default or Event of Default. (fd) The Agent shall have received on a "payoff" letter or before the Effective Date the following, each dated the Effective Date, in form and substance letters or other documentation reasonably satisfactory to the Agent and with respect to existing indebtedness set forth on Schedule 3.01(d) (except for it being understood that the Notes) in sufficient copies for each Lender:Borrower's existing letters of credit shall be permitted to remain outstanding). (ie) The Agent shall have received the Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.172.16. (iif) Certified copies of the resolutions of the The Agent shall be satisfied that all Advances comply with Federal Reserve System Board of Directors of Regulations T, U and X, and the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior a properly completed Federal Reserve Form U-1 for each Lender with respect to the date of execution of this Agreement by all parties heretoAdvances. (g) The Agent Borrower shall have received paid (i) all accrued, out of pocket fees and be reasonably satisfied expenses of the Agent in connection with a copy this Agreement and the transactions contemplated hereby (including the accrued reasonable fees and expenses of Mayer, Brown, Xxxx & Maw LLP), in each case to the extent an invoice shall have been presented to the Borrower with respect thereto, and (ii) all fees due to the Lead Arrangers pursuant to the Second Amended and Restated Fee Letter, dated as of June 19, 2006, among the Lead Arrangers and the Borrower. (h) On or before August 15, 2006, the Borrower shall have accepted shares of the Borrower’s investment policy 's capital stock for repurchase pursuant to the terms of the Stock Repurchase as in effect set forth on the Effective DateBorrower's Schedule TO.

Conditions Precedent to Initial Borrowing. The obligation obligations of each Lender the Lenders to make an Advance on Revolving Loans and the occasion obligations of the initial Borrowing any Issuer to Issue Letters of Credit shall, in each case, shall be subject to theeffectiveness of this Agreement on the Effective Date was subject to satisfaction on such date (or due waiver in accordance with Section 12.1 of each) of the following conditions precedent:, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which such conditions are satisfied or waived herein in accordance with Section 12.1 shall be the “Effective Date”): (a) Since May 31The Administrative Agent’s receipt of the following, 2004 there each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Notice of Borrowing in accordance with the requirements hereof provided that such notice shall not include any representation or statement as to the absence (or existence) of any Default; (ii) executed counterparts of this Agreement and the Guaranty; (iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that has requested a Revolving Credit Note at least two (2) Business Days in advance of the Effective Date; (iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with: (A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) [Reserved]; and (C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have occurred been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be continuing any Material Adverse Effecta party on the Effective Date; (vi) an opinion from Proskauer Rose, LLP, New York and California counsel to the Loan Parties substantially in the form of Exhibit G-1; (vii) an opinion from Xxxxxxxxx Xxxxxxx LLP, Nevada counsel to the Loan Parties substantially in the form of Exhibit G-2; (viii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M; (ix) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named; (x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date; (xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and (xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clause (iv) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Credit Extensions on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (or such later date as the Administrative Agent and the Borrower mutually agree in good faith). Notwithstanding anything in this Agreement, the terms of the Loan Documents shall be in a form such that they do not impair the availability or funding of the Facility on the Effective Date if the conditions set forth in this Section 4.1 are satisfied or waived by the Arrangers. (b) All governmental fees and third party consents reasonable and approvals necessary in connection with documented out-of-pocket expenses required to be paid on or before the transactions contemplated hereby Effective Date hereunder and invoiced at least three (3) Business Days before the Effective Date shall have been obtained paid in full in cash (without which such amounts, notwithstanding the imposition of any conditions that are not acceptable to foregoing, may be offset against the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment proceeds of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebyFacility). (c) There Prior to or substantially simultaneously with the Initial ABL Borrowing on the Effective Date, (i) the Equity Contribution shall not have been, without been consummated; and (ii) the consent of Joint Lead Arrangers, which Merger shall not be unreasonably withheld, delayed or conditioned, any consummated in all material modification to respects in accordance with the terms and provisions of the documentation relating Merger Agreement. (d) Prior to or substantially simultaneously with the Tender Offer (except for an extension of initial Borrowings on the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the TargetEffective Date, the Borrower shall have received (i) at least $525,000,000 in gross cash proceeds from borrowings under the Term Facility, and Offer Subsidiary (the “Tender Offer Documentation”ii) at least $250,000,000 in gross cash proceeds from the forms issuance of such Tender Offer Documentation most recently delivered to the Agent Senior Notes. (e) The Intercreditor Agreement and the Lenders prior to the date of execution of this Agreement Term Facility Documentation shall have been duly executed and delivered by all parties hereto; each party thereto, and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (df) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of Prior to or substantially simultaneously with the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On initial Borrowing on the Effective Date, the following statements Loan Parties shall have taken all other necessary actions such that, after giving effect to the Transaction, the Borrower and the Restricted Subsidiaries shall have outstanding no material third-party Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and Letter of Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted the Loan Documents, the Merger Agreement and/or the Schedules thereto. (g) The Arrangers shall have received the Annual Financial Statements and the Quarterly Financial Statements. (h) The Arrangers shall have received the Pro Forma Financial Statements. (i) The Administrative Agent and the Arrangers shall have received all documentation and other information reasonably requested in writing by them at least ten (10) days prior to the Effective Date in order to allow the Arrangers, the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (j) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers a Field Examination and the Initial Inventory Appraisal and such other reports, audits or certifications as the Administrative Agent and the Arrangers may reasonably request in respect of the Collateral included in the Borrowing Base not less than ten (10) Business Days prior to the Effective Date. (k) Since October 11, 2011, there shall not have been any Event, change or occurrence that, individually or together with any other Event, has had or would reasonably be expected to have a Closing Date Material Adverse Effect. (l) After giving effect to the Transaction on the Effective Date, the Excess Availability on the Effective Date (together with any unrestricted cash and Cash Equivalents of the Company and its Subsidiaries) shall be no less than $50,000,000. (m) The Merger Agreement Representations and the Specified Representations shall be true and the Agent shall have received for the account of each Lender a certificate signed correct in all material respects (or, if qualified by a duly authorized officer of the Borrower“materiality”, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any “Material Adverse Effect, ” or similar language, in all respects (iiafter giving effect to such qualification)) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date; provided that a failure of any Merger Agreement Representation to be true and correct shall not result in a failure of the condition to the initial availability of the Facility on the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Defaultunless such failure gives Holdings the right to terminate its obligations under the Merger Agreement. (fn) The Administrative Agent shall have received on or before a certificate of a Responsible Officer of the Effective Date Borrower in form and substance reasonably satisfactory to the followingAdministrative Agent, certifying to the matters set forth in Section 4.1(c), (k) and (m). Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each dated Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order borrowing of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Swing Loans or Issuance or deemed Issuance hereunder specifying its objection thereto and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There Lender shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification made available to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Administrative Agent prior to the date such Lender’s Ratable Portion of execution of this Agreement by all parties heretosuch Borrowing or Swing Loans. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be hereunder is subject to the satisfaction on such date condition precedent that each of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Administrative Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Liquidity Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrowerreceived, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date date of such Borrowing, the following, each (unless otherwise indicated) dated the Effective Date, such date and in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each LenderLiquidity Agent: (ia) The Notes to the order A copy of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions approval of the Board of Directors of the Borrower Servicer approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, other Transaction Documents to be delivered by it hereunder and the Borrowertransactions contemplated hereby, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.certified by its Secretary or Assistant Secretary; (iiib) A good standing certificate for Borrower issued by the Secretary of State of Delaware and a status certificate for the Servicer issued by the Secretary of State of Oregon; (c) A certificate of the Secretary or an Assistant Secretary of the Borrower Servicer certifying the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement and the Notes, if any, other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Liquidity Agent may conclusively rely until such time as they shall receive a revised certificate meeting the requirements of this SUBSECTION (c)); (d) Execution copies of the organizational documentation of Borrower and copies of the other documents to be delivered hereunder.articles of incorporation and bylaws of Servicer, certified by the Secretary or Assistant Secretary of the Servicer; (ive) A favorable opinion Acknowledgment copies of proper financing statements (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & XxxxxxxxForm UCC-1), counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed filed on or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution the initial Borrowing, naming Borrower as the debtor and the Collateral Agent as the secured party describing all of this the assets of the Borrower filed in the states of Delaware and Oregon; copies of search reports listing all effective financing statements that name Borrower as debtor and that are filed in the jurisdictions in which filings were made pursuant to the preceding clause and any other instruments or documents as may be necessary or desirable (in the opinion of the Administrative Agent or the Liquidity Agent) to perfect the Collateral Agent's interest in all Pool Assets; acknowledgment copies of proper financing statements (Form UCC-1), filed on or prior to the date of the initial Borrowing, naming TRM ATM as the debtor, the Borrower as the Secured Party and the Collateral Agent as assignee in the state of Oregon; copies of search reports listing all effective financing statements that name TRM ATM as debtor and that are filed in Oregon; (f) Favorable opinions of Stoel Rives LLP, counsel to Borrower and Servicer, regarding such items as non-consolidation and perfection of security interests, a favorable opinion of Xxxxx, Xxxxx & Xxxxx regarding enforceability and a favorable opinion of counsel to the Indenture Trustee regarding the enforceability of the Trust Agreement by all parties hereto.and other items; (g) The Such powers of attorney as the Collateral Agent shall have received reasonably request to enable the Collateral Agent to collect all Cash and be reasonably satisfied with a copy all other Pool Assets; (h) The Note and the Certificates, duly executed by Borrower; (i) The Letter of Credit; (j) A PRO FORMA Servicing Report, prepared in respect of the Borrower’s investment policy as proposed initial Borrowing; (k) The Liquidity Agreement, duly executed by Lender, the Liquidity Agent, each Liquidity Provider and the other parties thereto; (l) Letters from the rating agencies then rating the Commercial Paper Notes confirming that the existing ratings of the Commercial Paper Notes will remain in effect on after giving effect to the Effective Datetransactions contemplated hereby; (m) Execution copies of all agreements entered into by TRM ATM relating to the ATMs and the transportation of the Cash, including, without limitation, copies of the executed Cash Replenishment Services Supplement, MAS Processing Letter Agreement, Addendum to Armored Car Carrier Agreement and Depository Bank Agreement; (n) Proof of insurance reasonably acceptable to the Administrative Agent, the Liquidity Agent, Fitch and Xxxxx'x, covering any theft, destruction, or other loss of Cash while such Cash is located in an ATM or in the possession or care of a Transportation Agent naming the Collateral Agent as loss payee; (o) the transaction represented by the Transaction Documents shall achieve a "shadow" rating of at least "A" by Fitch; and (p) Such other documents, opinions and certificates as the Administrative Agent or the Liquidity Agent may reasonably request.

Conditions Precedent to Initial Borrowing. The obligation obligations of each Lender the Lenders to make an Advance on the occasion of the initial Borrowing Loans shall be subject to the satisfaction on such date or due waiver in accordance with Section 12.1 of each of the following conditions precedent:, except as otherwise agreed between the Borrower and the Requisite Lenders or the Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders): (a) Since May 31The Administrative Agent’s and the Requisite Lender’s receipt of the following, 2004 there each of which shall not be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Requisite Lenders or the Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders): (i) executed counterparts of this Agreement and the Guaranty; (ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance of the Effective Date; (iii) the Fee Letter, duly executed by each party thereto; (iv) each Collateral Document set forth on Schedule 1.1A required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, together with: (A) [reserved]; (B) [reserved]; and (C) evidence that all other actions, recordings and filings that the Requisite Lenders, Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders) and/or the Collateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders) has reasonably requested to be taken, completed or otherwise provided for to satisfy the Collateral and Guarantee Requirement shall have occurred been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Requisite Lenders or the Administrative Agent (acting at the direction of, or with the consent of, the Requisite Lenders); (v) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Requisite Lenders may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be continuing any Material Adverse Effect.a party on the Effective Date; (vi) an opinion from Proskauer Rose, LLP, counsel to the Loan Parties substantially in the form of Exhibit Q; (vii) a solvency certificate from the chief financial officer of the Borrower (as of the Effective Date and after giving effect to the Transaction) substantially in the form attached hereto as Exhibit R; and (viii) evidence that all insurance (excluding title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect as of the Effective Date and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent (i) is entitled under the Loan Documents to be so named, and (ii) shall have requested to be so named; (b) All governmental fees and third party consents reasonable and approvals necessary in connection with documented out-of-pocket expenses required to be paid on or before the transactions contemplated hereby Effective Date hereunder and invoiced at least one (1) Business Day before the Effective Date shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders paid in their reasonable discretion) and shall remain full in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebycash. (c) There All conditions to effectiveness contained in Section 2 of Amendment No. 6 to the ABL Credit Agreement shall not have been, without or concurrently with the consent effectiveness of Joint Lead Arrangersthis Agreement shall be, which shall not be unreasonably withheld, delayed satisfied (or conditioned, any material modification waived). (d) All conditions to effectiveness contained in Section 3 of Amendment No. 3 to the terms and provisions First Lien Credit Agreement shall have been, or concurrently with the effectiveness of the documentation relating this Agreement shall be, satisfied (or waived). (e) The First Amendment to the Tender Offer (except for an extension of the Tender Offer period)Intercreditor Agreement, including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary date hereof (the “Tender Offer DocumentationFirst Amendment to Intercreditor Agreement”) from ), among Holdings, the forms of such Tender Offer Documentation most recently delivered to Borrower, the Administrative Agent, the First Lien Administrative Agent and the Lenders prior to ABL Facility Administrative Agent shall have been duly executed and delivered by each party thereto, and shall be in full force and effect and (ii) the date of execution of this First Lien/Second Lien Intercreditor Agreement shall have been duly executed and delivered by all parties hereto; each party thereto, and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent Lenders shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, a completed “Life of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties heretoMortgaged Property. (g) The Administrative Agent and Lenders shall have received all documentation and be other information reasonably satisfied requested in writing by them at least four (4) days prior to the Effective Date in order to allow the Administrative Agent and the Lenders to comply with a copy applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the Borrower’s investment policy as provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in effect this Section 4.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Borrowing on the Effective DateDate specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s Ratable Portion of such Borrowing.

Conditions Precedent to Initial Borrowing. The obligation of each the Lender to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there There shall not have occurred and be continuing any no Material Adverse EffectChange since December 31,1998. (b) All There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower and/or any of its Subsidiaries or, to the knowledge of the Borrower, threatened before any court, governmental and third party consents and approvals necessary in connection with agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note, any other Loan Document or the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebythereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the followingClosing Date, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Agent Lender (unless otherwise specified) and (except for the NotesNote) in sufficient copies for each the Lender: (i) The Notes Note of the Borrower to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17.Lender; and (ii) Certified This Agreement. (d) The Lender shall have received certified copies of the resolutions of the Board of Directors of all corporate action taken by the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, each Loan Document to be delivered by the Borrowerwhich it is a party, and of all documents evidencing all other necessary corporate action and governmental approvalsGovernmental Approvals, if any, with respect to this Agreement and each such NotesLoan Document. (iiie) A The Lender shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, each Loan Document to be delivered by the Borrower which it is a party and the other documents to be delivered by it hereunder. (ivf) A favorable opinion of (i) inFernxxxx Xxxxxx-house counsel for Xxxich, Esq., Vice President and General Counsel of the Borrower in the form of Exhibit D-1 previously agreed to by the Lender and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in and as to such other matters as the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the AgentLender may reasonably request. (vg) There The Lender shall not have beenreceived certificates of good standing acceptable to the Lender showing that the Borrower is in good standing in the Commonwealth of Puerto Rico, without a copy certified by the consent Secretary or the Assistant Secretary of the Agent, which shall Borrower dated not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent more than thirty (30) days prior to the date of execution of this Agreement by all parties heretoof the Articles of Incorporation and By-Laws of the Borrower. (gh) A certificate of the Borrower, signed on behalf of the Borrower by an authorized officer of the Borrower, dated the Closing Date, certifying as to (A) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date, and (B) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default. (i) Such financial, business and other information regarding the Borrower revolving as the Lender shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and welfare plans, collective bargaining agreements and other arrangements with employees, annual financial statements for the Borrower dated as of December 31, 1998, and interim financial statements for the Borrower dated the end of the most recent fiscal quarter for which financial statements are available. (j) Payment by the Borrower to the Lender of all reasonable costs and expenses of the Lender (including, without limitation, attorney's fees) incurred in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby. (k) The Agent representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of the initial Borrowing before and after giving effect to such Borrowing and to the application of the proceeds therefrom. (l) No event has occurred and is continuing, or would result from the Advance, or from the application of the proceeds therefrom, which constitutes a Default. (m) The Lender shall have received and be such other approvals, consents, waivers, opinions or documents as the Lender may reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Daterequest.

Conditions Precedent to Initial Borrowing. The obligation initial Borrowing of each Lender to make an Advance Advances under this Agreement shall be made on the occasion and as of the initial Borrowing shall be subject to first date (the satisfaction “Closing Date”) on such date of which the following conditions precedentprecedent have been satisfied: (a) Since May 31All amounts owing by the Initial Borrower under the Existing Credit Agreement shall have been, 2004 there or concurrently with the initial Borrowing hereunder shall not be, paid in full, and all commitments of the lenders thereunder shall have occurred and be continuing any Material Adverse Effectbeen, or concurrently with the initial Borrowing hereunder shall be, terminated in accordance with the terms of the Existing Credit Agreement. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the The Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (ec) On the Effective Closing Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer representative of the Initial Borrower, dated the Effective Closing Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Closing Date, and (iiiii) No event has occurred and is continuing that constitutes a Default. (fd) The Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Datesuch date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of each of the charter or other organizational documents of the Initial Borrower and of resolutions of the Board of Directors of the Initial Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement, together with an English translation of each of the foregoing documents that are not otherwise being provided in English. (iiiii) A certificate of the Secretary or an Assistant Secretary authorized representative of the Initial Borrower certifying the names and true signatures of the officers other authorized representatives of the Initial Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iii) The Pledge Agreement and the Registration Rights Agreement, in each case duly executed and delivered by the Initial Borrower, together with (A) proper financing statements under the Uniform Commercial Code and similar requirements of law that are necessary to perfect and protect the Mortgage created or purported to be created under the Pledge Agreement, covering all Collateral described therein, and (B) proper termination statements under the Uniform Commercial Code and similar requirements of law that are necessary to terminate or amend existing liens on all Collateral granted in favor of the Existing Agent under the terms of the Existing Pledge Agreement, in each case, in appropriate form for filing or recording. (iv) A favorable opinion Favorable written opinions of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Borrower, in the form of (A) Exhibit D-2 andC-1 hereto from Luxembourg counsel to the Initial Borrower, in each case(B) Exhibit C-2 hereto from the Initial Borrower’s special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Wxxxxxxxxx & Txxx LLP, special counsel to the Initial Borrower. (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each the Lender to make an Advance a Disbursement on the occasion of the initial Borrowing shall be hereunder is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there The Lender shall not have occurred be satisfied with the terms and conditions of this Agreement and the other Loan Documents and the aggregate amount of the Loan shall be continuing any Material Adverse EffectTHREE MILLION FIVE HUNDRED THOUSAND DOLLARS (US$3,500,000.00). (b) The Lender shall have a valid and perfected first-priority security interest in the Collateral (other than the real property of the Borrower, listed in Schedule A, that shall be registered and perfected in accordance with Section 5.02 n); all filings, recordations, and searches necessary or desirable in connection with such security interests shall have been duly made or obtained; and all filing and recording taxes and fees shall have been paid. (c) The Lender shall be satisfied with the corporate and legal structure and capitalization of the Borrower and each of its Guarantors, including, without limitation, the terms and conditions of the corporate organizational documents and shareholders' agreement (if any) of the Borrower and each such Guarantor and of each agreement or instrument relating thereto. (d) All Material Contracts shall be in full force and effect and delivered to the Lender prior to the date hereof with certification from the Borrower as to their completeness and effectiveness and (ii) have not been amended, modified or rescinded since such delivery, shall be satisfactory to the Lender. (e) There shall have occurred no event or circumstance that could reasonably be expected to (i) result in a Material Adverse Change, (ii) have a material adverse effect on the ability of the Borrower to meet its obligations under any Loan Document or Material Contract to which it is a party. (f) The Lender shall have received each of the following in form and substance satisfactory to the Lender: (i) three years historical financial statements (including Balance Sheets, profit and Loss, and Cash Flow Statements) of PriceSmart, Inc.; (ii) Business Plan and Cash Flow Projections for the Borrower and PriceSmart Honduras for the duration of the Loan Term; (iii) Business Plan and Cash Flow Projections for PriceSmart Inc. and PSMT Caribe Inc. for 2000-2001, (iv) As-Built Plans and Specifications; Environmental Impact Report, if required, soil reports, occupancy permits and required governmental approvals; (v) Leasing, Shareholder and Licensing Agreements including: a) Licensing, Technology Transfer, Training and Sourcing Agreement among PriceSmart, Inc., Venture Services, Inc. and PriceSmart Honduras, dated September 1, 1999, b) Lease Agreement between the Borrower and PriceSmart, which will be signed before closing of the loan and c) Shareholder Agreement between PriceSmart, Inc. and PSC, S.A, dated September 14, 1998; (vi) MAI Appraisal, in a form and from an appraisal firm acceptable to the Lender. Such appraisal is to result in a minimum valuation of FIVE MILLION DOLLARS (US$5,000,000.00) for the property on an "As-is" basis and (vii) such other documents as reasonably required by the Lender. (g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect in a manner adverse to the Lender the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby. (h) All governmental and third party consents consents, approvals, authorizations and approvals licenses necessary in connection with any Loan Document or the transactions contemplated hereby thereby, if any, shall have been obtained obtained, shall be in full force and effect and, except for the governmental and third party consents, approvals, authorizations and licenses listed in Schedule I that (without the imposition of any conditions that are not acceptable i) were delivered to the Lenders in Lender prior to the date hereof with certification from the Borrower as to their reasonable discretioncompleteness and effectiveness and (ii) and have not been amended, modified or rescinded since such delivery, shall remain in effect, be satisfactory to the Lender; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lenders Lender that restrains, prevents or imposes materially adverse conditions upon on the Borrower, any Loan Document or the transactions contemplated herebythereby. (ci) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation The Cross-Border Insurance shall be in full force and effect. Offer Subsidiary effect and shall have accepted for purchase not less than the Minimum Shares pursuant be satisfactory in all respects to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer DocumentationLender. (dj) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date date of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Agent Lender (unless otherwise specified) and (except for the Notes) in sufficient copies for each the Lender: (i) The Notes Notarized declaration of the Corporate Secretary of the board of directors of each Loan Party establishing that all said parties have met all necessary corporate requirements to the order satisfaction of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving Lender, and the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, thereby and of all documents evidencing other necessary corporate action requirements and governmental approvalsand other third party approvals and consents, if any, with respect to this Agreement such Loan Document. (ii) Copies of the organizational documents of each Loan Party and all amendments thereto certified by the General Manager, a Vice President or Secretary of such NotesLoan Party as being a true, correct and complete copy thereof. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement and the Notes, if any, each Loan Document to which it is or is to be delivered by the Borrower a party and the other documents to be delivered hereunderhereunder and thereunder. (iv) A favorable opinion Certified copies of (i) in-house counsel for all Material Contracts of the Borrower listed in Schedule B (Leasing Agreement, License Agreement, etc.) duly executed by the parties thereto, all of which shall be in full force and effect. (v) Each of the Mortgage on Real Property, the Pledge of Equipment, the Pledge of the Furniture, Pledge of the Fixtures, Assignment of the Leasing Agreement and of the Licensing, Technology Transfer, Training and Sourcing Agreement, in each case duly executed by the parties thereto on the date hereof and substantially in the form of the relevant Exhibit hereto, together with: (A) evidence of the completion of all recordings, filings, registrations and notices of or with respect to each such Collateral Document (other than the registration of the Mortgages on Real Property with the appropriate Honduran registries that shall be completed in accordance with Section 5.02 n) that the Lender may deem necessary or desirable in order to perfect and protect the Liens created thereby; and (B) evidence that all other action that the Lender may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under each such Collateral Document. (vi) The Cross-Border Insurance, duly executed by OPIC and the Lender, substantially in the form of Exhibit D-1 __ hereto, which agreement shall be in full force and effect. (iivii) Xxxxx Xxxx & XxxxxxxxRecognition of Debt in respect of the Borrowing, counsel for duly executed by the Borrower, substantially in the form of Exhibit D-2 and, in each caseIII hereto. (viii) A certificate of the Chief Financial Officer of the Borrower, in form and substance satisfactory to the Agent. (vLender, certifying as to the a) There DEBT SERVICE RATIO. Debt Service Ratio for the San Xxxxx Sula store shall not have beenfall below the level of 1.10 for year 2000 and 2001, without 1.20 for year 2002, and 1.30 for year 2003, and 1.5 for year 2004. Debt Service Ratio for the consent of the Agent, which consolidated San Xxxxx Sula and Tegucigalpa stores shall not be unreasonably withheldfall below the level of 1.50 for year 2001, delayed or conditioned2.0 for year 2002, any material modification to the pro forma financial statements 2.1 for year 2003, and 2.50 for year 2004. The debt service ratio is defined as: net income plus interest plus depreciation plus amortization divided by principal plus interest payment. Cash Coverage Ratio, defined below, for the Borrower consolidated San Xxxxx Sula and its Subsidiaries most recently delivered to Tegucigalpa stores shall not fall below 1.4 for year 2000. Cash Coverage Ratio is defined as: EBITDA + Cash at hand - US$500,000.00) / (Interest Exp. + Current Maturity of Long term debt). EBITDA will be calculated utilizing the Agent prior to the date of execution of this Agreement by all parties heretopast twelve months. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation Notwithstanding the execution of each Lender this Agreement by any of the parties hereto, the Lenders shall not be bound by the terms of this Agreement nor obliged to make an Advance on the occasion available any portion of the initial Borrowing shall be subject to following the satisfaction on such date Effective Date unless each of the following conditions precedentts satisfied: (a) Since May 31, 2004 there the Borrower shall not have occurred confirm the cancellation of the existing credit facility created under the Second Amended and be continuing any Material Adverse Effect.Restated Credit Agreement in the principal amount of Cdn.$1,425,000,000.00; (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby Borrower shall have been obtained (without the imposition of any conditions that are not acceptable provide evidence to the Lenders Administrative Agent that its Commercial Paper Program continues to be in their reasonable discretion) full force and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.; (c) There the Administrative Agent shall have received any required Borrowing Notice; (d) there shall exist no Default or Event of Default on the said initial Borrowing Date and, if required by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Borrower's Certificate of Compliance; (e) all representations and warranties contained in Article 8 shall be true on and as of the initial Borrowing Date with the same effect as if such representations and warranties had been made on and as of the initial Borrowing Date and, if required by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Borrower's Certificate of Compliance; (f) the Trust Indenture shall not have been, without been amended; (g) the consent of Joint Lead Arrangers, which Administrative Agent and the Lenders shall not be unreasonably withheld, delayed or conditioned, have received any material modification to Credit Documents required by the terms Administrative Agent and provisions of the documentation relating to Lenders duly executed by the Tender Offer (except for an extension of the Tender Offer period)Borrower, including, without limitation, the Agreement supplemental indenture to the Trust Indenture authorizing the execution of the Pledged Bond and Plan of Merger dated as of December 12delivery thereof to the trustee under the Trust Indenture; (h) the following documents in form, 2004 among substance and execution acceptable to the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently Administrative Agent shall have been delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating thatAdministrative Agent: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified duly certified copies of the resolutions of the Board of Directors constating documents of the Borrower approving and the transactions contemplated General Partner and of all necessary proceedings taken and required to be taken by this Agreement and the Borrower to authorize the execution and delivery of this Agreement and the Notes, if any, Credit Documents to be delivered by which it is a party and the Borrower, entering into and performance of all documents evidencing other necessary corporate action the transactions contemplated herein and governmental approvals, if any, with respect therein; (ii) certificates of incumbency of the General Partner setting forth specimen signatures of the persons authorized to execute this Agreement and such Notes.the Credit Documents to which it is a party; (iii) A certificate of status or the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized equivalent relative to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder.General Partner under the laws of Canada or its jurisdiction of creation; and (iv) A favorable the opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent.Administrative Agent and the Lenders; (vi) There shall not have been, without the consent of Administrative Agent and the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent Lenders shall have received evidence that all necessary corporate, governmental and be reasonably other third party approvals have been obtained in form and substance acceptable to the Administrative Agent and the Lenders, each acting reasonably; (j) all fees payable on or before the date hereof in connection with the Credit Facility under this Agreement and the Fee Letter shall have been paid to the applicable parties; and (k) the Administrative Agent and the Lenders are satisfied with a copy in their sole and absolute discretion that all of the Borrower’s investment policy as in effect on the Effective Dateprovisions of Article 9 have been complied with to their satisfaction.

Conditions Precedent to Initial Borrowing. The This Agreement and the obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to and the satisfaction on such date obligations of the following conditions precedent: (a) Since May 31, 2004 there Issuing Bank to issue Letters of Credit hereunder shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with become effective until the transactions contemplated hereby date on which the Administrative Agent shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution received executed counterparts of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary each of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt parties hereto and each of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each (unless otherwise specified below) dated the Effective Closing Date, in form and substance satisfactory to the Administrative Agent and (except for the Notesitems in clauses (a), (b) and (c)) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (iia) Certified copies of (x) the certificate of incorporation and by-laws of the Borrower, (y) the resolutions of the Board of Directors of the Borrower approving authorizing the transactions contemplated making and performance by this Agreement and the execution and delivery Borrower of this Agreement and the Notes, if any, to be delivered by the Borrowertransactions contemplated hereby, and of all (z) documents evidencing all other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement. (iiib) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (ivc) A certificate from the Secretary of State of the State of Delaware dated a date reasonably close to the Closing Date as to the good standing of and certificate of incorporation filed by the Borrower. (d) A favorable opinion of (i) in-house Xxxxx & Xxx Xxxxx, PLLC, special counsel for to the Borrower Borrower, substantially in the form of Exhibit D-1 C hereto. (e) A certificate of a Responsible Officer of the Borrower certifying that (i) no Default or Event of Default as of the date thereof has occurred and is continuing, and (ii) Xxxxx Xxxx & Xxxxxxxxthe representations and warranties contained in Section 4.01 are true and correct on and as of the date thereof as if made on and as of such date. (f) Evidence that all principal, counsel for interest and other amounts owing by the Borrower, Borrower under or in respect of the form of Exhibit D-2 andExisting Credit Agreement shall have been (or shall simultaneously be) paid in full and all commitments to extend credit thereunder shall have been terminated, in each case, case in form and substance a manner satisfactory to the Administrative Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Notes, payable to the order of the respective Lenders that have requested the same prior to the Closing Date, duly completed and executed. (h) Such other documents relating to this Agreement and the transactions contemplated hereby as the Administrative Agent may reasonably request and as further described in the list of closing documents attached as Exhibit E. Furthermore, the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reasonably satisfied with a copy reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Borrower’s investment policy as in effect on the Effective Closing Date, and such notice shall be conclusive and binding.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be hereunder is subject to the satisfaction on such date condition precedent that each of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Administrative Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Liquidity Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrowerreceived, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date date of such Borrowing, the following, each (unless otherwise indicated) dated the Effective Date, such date and in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each LenderLiquidity Agent: (ia) The Notes to the order A copy of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions approval of the Board of Directors of the Borrower Servicer approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, other Transaction Documents to be delivered by it hereunder and the Borrowertransactions contemplated hereby, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.certified by its Secretary or Assistant Secretary; (iiib) A good standing certificate for Borrower issued by the Secretary of State of Delaware and a status certificate for the Servicer issued by the Secretary of State of Oregon; (c) A certificate of the Secretary or an Assistant Secretary of the Borrower Servicer certifying the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement and the Notes, if any, other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Liquidity Agent may conclusively rely until such time as they shall receive a revised certificate meeting the requirements of this subsection (c)); (d) Execution copies of the organizational documentation of Borrower and copies of the other documents to be delivered hereunder.articles of incorporation and bylaws of Servicer, certified by the Secretary or Assistant Secretary of the Servicer; (ive) A favorable opinion Acknowledgment copies of proper financing statements (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & XxxxxxxxForm UCC-1), counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed filed on or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution the initial Borrowing, naming Borrower as the debtor and the Collateral Agent as the secured party describing all of this the assets of the Borrower filed in the states of Delaware and Oregon; copies of search reports listing all effective financing statements that name Borrower as debtor and that are filed in the jurisdictions in which filings were made pursuant to the preceding clause and any other instruments or documents as may be necessary or desirable (in the opinion of the Administrative Agent or the Liquidity Agent) to perfect the Collateral Agent's interest in all Pool Assets; acknowledgment copies of proper financing statements (Form UCC-1), filed on or prior to the date of the initial Borrowing, naming TRM ATM as the debtor, the Borrower as the Secured Party and the Collateral Agent as assignee in the state of Oregon; copies of search reports listing all effective financing statements that name TRM ATM as debtor and that are filed in Oregon; (f) Favorable opinions of Stoel Rives LLP, counsel to Borrower and Servicer, regarding such items as non-consolidation and perfection of security interests, a favorable opinion of Xxxxx, Xxxxx & Xxxxx regarding enforceability and a favorable opinion of counsel to the Indenture Trustee regarding the enforceability of the Trust Agreement by all parties hereto.and other items; (g) The Such powers of attorney as the Collateral Agent shall have received reasonably be request necessary to enable the Collateral Agent to collect all Cash and be reasonably satisfied with a copy all other Pool Assets; (h) The Note and the Certificates, duly executed by Borrower; (i) The Letter of Credit; (j) A pro forma Servicing Report, prepared in respect of the Borrower’s investment policy as proposed initial Borrowing; (k) The Liquidity Agreement, duly executed by Lender, the Liquidity Agent, each Liquidity Provider and the other parties thereto; (l) Letters from the rating agencies then rating the Commercial Paper Notes confirming that the existing ratings of the Commercial Paper Notes will remain in effect on after giving effect to the Effective Datetransactions contemplated hereby; (m) Execution copies of all agreements entered into by TRM ATM relating to the ATMs and the transportation of the Cash, including, without limitation, copies of the executed Cash Replenishment Services Supplement, MAS Processing Letter Agreement, Addendum to Armored Car Carrier Agreement and Depository Bank Agreement; (n) Proof of insurance reasonably acceptable to the Administrative Agent, the Liquidity Agent, Fitch and Xxxxx'x, covering any theft, destruction, or other loss of Cash while such Cash is located in an ATM or in the possession or care of a Transportation Agent naming the Collateral Agent as loss payee; (o) the transaction represented by the Transaction Documents shall achieve a "shadow" rating of at least "A" by Fitch; and (p) Such other documents, opinions and certificates as the Administrative Agent or the Liquidity Agent may reasonably request.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an initial Advance on (including the occasion of the initial Borrowing shall be Term Loan) is subject to the satisfaction on such date of the following conditions precedentprecedent having been satisfied or duly waived on the Original Closing Date: (a) Since May 31, 2004 there The Lenders shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection satisfied with the transactions contemplated hereby shall have been obtained (without the imposition corporate and legal structure, capitalization and Debt of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period)each Loan Party, including, without limitation, the Agreement terms and Plan conditions of Merger dated as the charter, bylaws and each class of December 12, 2004 among the Target, the Borrower capital stock of each Loan Party and Offer Subsidiary each agreement or instrument relating to such structure or capitalization. (the “Tender Offer Documentation”b) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the The Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; satisfied that all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived Obligations (other than payment, any Existing Letters of Credit which will occur substantially contemporaneously with receipt shall be treated as provided in Section 2.13(a)) of the proceeds hereof in connection Borrower under the Existing Credit Agreement, whether for principal, interest, fees, expenses or otherwise, have been or, concurrently with the Initial making of the initial Borrowing); , will be paid in full in cash and all other aspects of Liens securing such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer DocumentationObligations released. (dc) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent Facility Agents and the Lenders (including the reasonable all invoiced fees and expenses of counsel to the Agent required by this Agreement), Facility Agents and of trademark counsel and local counsel to the extent invoices therefor Lenders). (d) There shall have been received at least one Business Day before such Borrowing)occurred no Material Adverse Change since March 31, 1996 except as described in the letter from the Borrower to the Existing Lenders, dated August 23, 1996. (e) On the Effective DateThere shall exist no action, the following statements shall suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that would be true and the Agent shall reasonably likely to have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Documentation Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Documentation Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Revolving Credit Notes to the order of the Revolving Lenders and the Term Notes to the extent requested by any Lender pursuant to Section 2.17order of the Term Lenders. (ii) A parent guaranty in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by Parent. (iii) A subsidiary guaranty in substantially the form of Exhibit D-2 (together with each other guaranty delivered pursuant to 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by the Guarantors (other than Parent). (A) A security agreement in substantially the form of Exhibit E-1 (together with each other security agreement delivered pursuant to 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by each Loan Party, together with: (1) certificates representing the Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank, and instruments evidencing the Pledged Indebtedness referred to in the Security Agreement, duly endorsed in blank, (2) duly executed proper financing statements to be filed under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to maintain the perfection and priority of the Liens existing under the Security Agreement, covering the Collateral described in the Security Agreement, (3) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created thereby, (4) evidence of the insurance required to be maintained by the terms of the Security Agreement, (5) evidence that the Lockbox Letters referred to in the Security Agreement, have been duly executed by each Lockbox Bank referred to in the Security Agreement, (6) confirmation that such action that the Collateral Agent may deem necessary or desirable in order to maintain the perfection and priority of the Liens on the capital stock held by any Loan Party in any of its Foreign Subsidiaries has been taken, and (7) evidence that all other action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the Liens created by the Security Agreement has been taken (including, without limitation, receipt of duly executed proper termination statements evidencing the release of all Liens securing the Obligations under the Existing Credit Agreement). (B) A trademark, patent and copyright security agreement in substantially the form of Exhibit E-2 (together with each other trademark, patent and copyright security agreement delivered pursuant to Section 5.01(o), in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Trademark, Patent and Copyright Security Agreement"), duly executed by each of the parties indicated on the signature pages thereof, together with evidence that all other action, if any, that the Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens existing under the Trademark, Patent and Copyright Security Agreement has been taken (including, without limitation, receipt of duly executed proper releases evidencing the release of all Liens securing the Obligations under the Existing Credit Agreement). (v) Certified copies of the resolutions of the Board of Directors of the Borrower and each other Loan Party approving this Agreement, the transactions contemplated by this Agreement Notes and the execution and delivery of this Agreement and the Notes, if any, each other Loan Document to which it is or is to be delivered by the Borrowera party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, the Notes and such Noteseach other Loan Document. (iiivi) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation of each Loan Party, dated reasonably near the Effective Date listing the charter of such Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Loan Party's charter on file in his office, (B) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated and in good standing under the laws of such jurisdiction. (vii) A certificate of the Secretary or an Assistant Secretary Borrower and each other Loan Party, signed on behalf of the Borrower certifying and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the names Effective Date (the statements made in which certificate shall be true on and true signatures as of the officers Effective Date), certifying as to (A) the absence of any amendments to the charter of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.such other

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) Since May The Administrative Agent shall have received the audited financial statements for the Fiscal Year ending December 31, 2004 2015 of the Borrower, there shall not have occurred no material deviations from the interim financial statements previously submitted to the Administrative Agent, and be continuing any there shall have occurred no Material Adverse EffectChange with respect to the Borrower since September 30, 2016. (b) There shall exist no action, suit, investigation, litigation or proceeding, other than those listed on Schedule 3.1(b) hereto, affecting the Borrower pending or threatened before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note, any other Loan Document, or the consummation of the transactions contemplated hereby or thereby. (c) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent and the Lenders (including accrued fees and expenses of counsel to the Administrative Agent). (d) The Administrative Agent shall have received on or before the day of the initial Borrowing in form and substance satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Notes of the Borrower to the order of the Lenders. (ii) The security instruments identified below, under the terms and conditions set forth therein, duly executed by the parties identified below or in such instruments. Such security instruments shall be enforceable against the parties thereto and all security interests granted thereunder shall be perfected: (I) pledges of mortgage notes in the principal amount of not less than $41,000,000 secured by first mortgages (collectively, the “Mortgage”) on the Realty and, in the case of Mortgages constituted prior to the Closing Date, the corresponding deeds of tolling of statue of limitations. (II) a security agreement and the corresponding financing statements executed by the Borrower creating a first priority Lien over the Cash Collateral Account, the Debt Service Reserve Account and all funds deposited therein from time to time, all personal property and fixtures related to the Realty, and all proceeds of all of the foregoing. (III) an assignment of leases and rents pursuant to which the Borrower creates a first priority Lien in and to all Leases and Rents and the corresponding acknowledgements and estoppels by tenants. (IV) all such other documents (including, without limitation, financing statements and control agreements) required to create, in favor of the Administrative Agent, for the ratable benefit of the Lenders, a valid, perfected and first priority Lien in the Collateral; and (V) evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect and protect the Liens, assignments and other security created by the foregoing security instruments have been taken. (e) Certified copies of the resolutions of the Board of Directors and, if required, the consents of the stockholders or members of each Loan Party, approving each Loan Document to which it is a party, and of all documents evidencing other necessary corporate action and Governmental Approvals and third party consents, if any, with respect to each such Loan Document. (f) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered by it hereunder. (g) A favorable opinion of Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLC, counsel for the Loan Parties, in substantially the form previously agreed to by the Administrative Agent and the Borrower, and as to such other matters as any Lender through the Administrative Agent may reasonably request. (h) Evidence acceptable to the Administrative Agent to the effect that each Loan Party is in good standing in the Commonwealth of Puerto Rico, and a copy certified by the Secretary of each Loan Party of the Constituent Documents of each Loan Party. (i) Copies of the Insurance Policies and all insurance endorsements and certificates required by Section 5.1(b) hereof and by the other Loan Documents and evidence that all premiums with respect thereto have been paid in full. (j) A certificate of the Borrower, signed on behalf of the Borrower by the Chief Financial Officer of Borrower dated the Closing Date, certifying as to the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and that no Default has occurred or will result from the disbursement of the Advances. (k) Mortgagee title insurance policies with such endorsements and exceptions as may be approved by the Administrative Agent, covering an amount equal to the aggregate amount of the Mortgage and its extensions, if any. (l) Appraisals of the Realty addressed to the Administrative Agent performed by an independent appraiser who is satisfactory to the Administrative Agent, in form and substance acceptable to the Administrative Agent showing that the ratio of (i) the sum of the Term Loan A Commitments and Term Loan B Commitments, to (ii) the Market Value of the Realty is equal to or less than 80%. (m) Environmental questionnaires regarding the Realty addressed to the Administrative Agent confirming that the Realty is not subject to any adverse environmental condition and, if necessary, Phase I environmental assessments of the Realty addressed to the Administrative Agent by an environmental consultant acceptable to the Administrative Agent confirming that the Realty is not subject to any adverse environmental condition. (n) A preliminary asbestos survey report prepared by a qualified expert acceptable to the Administrative Agent regarding the presence of asbestos in the buildings on the Monacillos Property known as annex 1 and annex 2. If such survey should reveal materials that might contain asbestos or damage or disturbance to known asbestos containing materials, the survey report shall also include adequate sampling. (o) Standard Flood Hazard Determinations with respect to the Realty and, if any portion of the Realty is located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968, as amended (or successor act thereto), a flood insurance policy issued by a financially sound and reputable insurer, in an amount sufficient to comply with all applicable rules and regulations promulgated pursuant to such Act. (p) The satisfactory completion by the Lenders of their due diligence in connection with the Loan Parties and their business and the delivery to the Lenders of such financial, business and other information regarding any and all of the Loan Parties as the Lenders shall have requested, including without limitation, information to comply with Lender’s customer and Patriot Act due diligence, information as to existing Liens on Borrower’s properties (including UCC searches and title reports), contingent liabilities, pending and threatened litigation (including litigation searches), tax matters, environmental matters, obligations under ERISA and welfare plans, collective bargaining agreements and other arrangements with employees, financial statements, business plans as to the Borrower and its Subsidiaries and forecasts prepared by management of the Borrower in form and substance satisfactory to the Majority Lenders, of balance sheets, income statements, operating expenses budgets, capital improvements and maintenance budget, and cash flow statements. (q) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretionMajority Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Majority Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (cr) There shall not have beenEvidence of payment of all taxes due by the Borrower, without including certifications from the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification Municipal Revenue Collection Center (“XXXX”) regarding Real Estate Taxes with respect to the terms and provisions Realty. (s) Rent roll of the documentation relating to Realty containing such information as required by the Tender Offer Lender (except for an extension of the Tender Offer period), including, without limitation, the Agreement lease area, base rent, additional rent, lease term and Plan vacancy), with copies of Merger dated all Leases as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to in effect on the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentationhereof. (dt) A certificate of the Treasurer or Chief Financial Officer of the Borrower evidencing compliance, after giving effect to the initial Borrowings on the Closing Date, with the Financial Covenants. (u) An “as built” survey of the Monacillos Realty from a certified Puerto Rico licensed surveyor. (v) The Borrower shall have paid all reasonable invoiced fees established with the Administrative Agent the Debt Service Reserve Account and out-of-pocket expenses shall have deposited in such account the amount of $404,997.01. (w) The Borrower shall have established with the Administrative Agent the Designated Operating Account, the Cash Collateral Account, the Tax and the Lenders (including the reasonable invoiced fees Insurance Reserve Account and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing)Operating Account. (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The ----------------------------------------- obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there There shall not have occurred and be continuing any no Material Adverse EffectChange since June 30, 1992. (b) All There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Loan Parties, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to materially adversely affect the Facilities or the consummation of the transactions contemplated hereby. (c) The Lenders shall be satisfied that all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall Facilities have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lenders in their reasonable discretionLenders) and shall remain are in effect, ; and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer DocumentationFacilities. (d) The Borrower Contemporaneously with the initial Borrowing, all Existing Debt (other than the Surviving Debt) shall be paid in full. (e) TNCL shall have paid (i) all up-front fees to the Lenders as set forth in the Information Memorandum, (ii) all fees of the Administrative Agent and the Arrangers, in each case as agreed to between TNCL and the Administrative Agent or such Arranger and (iii) all reasonable invoiced fees and out-of-pocket expenses of the Agent Administrative Agent, the Arrangers and the Lenders (including the reasonable invoiced accrued fees and expenses of Xxxxxxxx Chance, Xxxxxxxx Hollingdale & Page and Shearman & Sterling as counsel to the Administrative Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a DefaultArrangers). (f) The Administrative Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an initial Advance on (including the occasion of the initial Borrowing shall be Term Loan) is subject to the satisfaction on such date of the following conditions precedentprecedent having been satisfied or duly waived: (a) Since May 31, 2004 there The Lenders shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection satisfied with the transactions contemplated hereby shall have been obtained (without the imposition corporate and legal structure, capitalization and Debt of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period)each Loan Party, including, without limitation, the Agreement terms and Plan conditions of Merger dated as the charter, bylaws and each class of December 12, 2004 among the Target, the Borrower capital stock of each Loan Party and Offer Subsidiary each agreement or instrument relating to such structure or capitalization. (the “Tender Offer Documentation”b) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the The Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; satisfied that all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived Obligations (other than payment, any Existing Letters of Credit which will occur substantially contemporaneously with receipt shall be treated as provided in Section 2.13(a)) of the proceeds hereof in connection Borrower under the Existing Credit Agreement, whether for principal, interest, fees, expenses or otherwise, have been or, concurrently with the Initial making of the initial Borrowing); , will be paid in full in cash and all other aspects of Liens securing such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer DocumentationObligations released. (dc) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent Facility Agents and the Lenders (including the reasonable all invoiced fees and expenses of counsel to the Agent required by this Agreement), Facility Agents and of trademark counsel and local counsel to the extent invoices therefor Lenders). (d) There shall have been received at least one Business Day before such Borrowing)occurred no Material Adverse Change since March 31, 1996 except as described in the letter from the Borrower to the Existing Lenders, dated August 23, 1996. (e) On the Effective DateThere shall exist no action, the following statements shall suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that would be true and the Agent shall reasonably likely to have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Documentation Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Documentation Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Revolving Credit Notes to the order of the Revolving Lenders and the Term Notes to the extent requested by any Lender pursuant to Section 2.17order of the Term Lenders. (ii) Certified copies A parent guaranty in substantially the form of Exhibit D-1 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the resolutions of the Board of Directors of the Borrower approving the transactions contemplated "Parent Guaranty"), duly executed by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesParent. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower subsidiary guaranty in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in substantially the form of Exhibit D-2 and(together with each other guaranty delivered pursuant to 5.01(o), in each casecase as amended, supplemented or otherwise modified from time to time in form and substance satisfactory to accordance with its terms, the Agent"Subsidiary Guaranty"), duly executed by the Guarantors (other than Parent). (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the occurrence of the Effective Date and the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the Agent shall have received for acceptance by the account of each Lender a certificate signed by a duly authorized officer Borrower of the Borrower, dated proceeds of such Borrowing shall constitute a representation and warranty by the Effective Date, stating that:Borrower that on the date of such Borrowing such statements are true): (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The the representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, before and after giving effect to such Borrowing and to the Effective Dateapplication of the proceeds therefrom, as though made on and as of such date, and (iiiii) No no event has occurred and is continuing continuing, or would result from such Borrowing, or from the application of the proceeds therefrom, that constitutes would result in a Default or Event of Default.; (fb) The Agent shall have received on a "payoff" letter or before the Effective Date the following, each dated the Effective Date, in form and substance letters or other documentation reasonably satisfactory to the Agent and with respect to existing indebtedness set forth on Schedule 3.02(b) (except for it being understood that the Notes) in sufficient copies for each Lender:Borrower's existing letters of credit shall be permitted to remain outstanding); (ic) The Agent shall have received the Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17.2.16; (iid) Certified copies The Agent shall be satisfied that all Advances comply with Federal Reserve System Board Regulations T, U and X, and the Borrower shall have delivered to the Agent a properly completed Federal Reserve Form U-1 for each Lender with respect to the Advances; (e) The Borrower shall have paid (i) all accrued, out of pocket fees and expenses of the resolutions of Agent and the Board of Directors of the Borrower approving the transactions contemplated by Lenders in connection with this Agreement and the execution transactions contemplated hereby (including the accrued reasonable fees and delivery expenses of this Agreement and the NotesMayer, if anyBrown, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iiiXxxx & Maw LLP) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxxall fees due to the Lead Arrangers pursuant to the Amended and Restated Fee Letter, counsel for dated as of June 6, 2006, among the Lead Arrangers and the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory case to the Agent.extent an invoice shall have been presented to the Borrower with respect thereto; and (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (gf) The Agent Bridge Credit Agreement shall have received been duly executed and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Datefull force and effect.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the occurrence of the Amendment Effective Date and the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred This Agreement and be continuing any Material Adverse Effect. (b) All governmental the Amended and third party consents and approvals necessary in connection with the transactions contemplated hereby Restated Five-Year Credit Agreement shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) duly executed and shall remain in effect, delivered and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary . (b) The Lenders shall have accepted received: (i) a solvency certificate duly executed and delivered by the chief financial or accounting officer of the Borrower authorized to sign such certificate, dated as of the Amendment Effective Date, substantially in the form of Exhibit E hereto, (ii) favorable opinions of Sidley Austin LLP, counsel for purchase not less than the Minimum Shares pursuant Borrower, and Crane X. Xxxxxx, General Counsel of the Borrower, in each case dated as of the Amendment Effective Date, substantially in the form of Exhibits D-1 and D-2 hereto, respectively, (iii) copies of the audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 25, 2005 and the related audited Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal year ended December 25, 2005, accompanied by an opinion of Pricewaterhouse Coopers LLP, independent public accountants, (iv) copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006 and the related Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended March 26, 2006, (v) copies of the unaudited pro forma condensed Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006, and the related unaudited pro forma combined statements of operations of the Borrower and its Subsidiaries for the year then ended, after giving effect to the Tender Offer; all conditions precedent to execution and delivery of this Agreement, the purchase by Offer Subsidiary making of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt Advances hereunder and the use of the proceeds hereof in connection with thereof as contemplated hereunder (including to consummate the Initial BorrowingStock Repurchase and the Refinancing); and , all other aspects of such portion of the Tender Offer shall have been conducted in accordance with GAAP as in effect on the Tender Offer Documentationdate of preparation thereof, and (vi) copies of reasonably detailed pro forma Consolidated financial projections prepared by or on behalf of the Borrower for the Borrower and its Subsidiaries, taken as a whole, for the five-fiscal year period after the Original Effective Date that are not different in a materially adverse manner as compared with those made available to the Lead Arrangers prior to the Original Effective Date. (dc) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the Agent shall have received for acceptance by the account of each Lender a certificate signed by a duly authorized officer Borrower of the Borrower, dated proceeds of such Borrowing shall constitute a representation and warranty by the Effective Date, stating that:Borrower that on the date of such Borrowing such statements are true): (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The the representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, before and after giving effect to such Borrowing and to the Effective Dateapplication of the proceeds therefrom, as though made on and as of such date, and (iiiii) No no event has occurred and is continuing continuing, or would result from such Borrowing, or from the application of the proceeds therefrom, that constitutes would result in a Default or Event of Default. (fd) The Agent shall have received on a "payoff" letter or before the Effective Date the following, each dated the Effective Date, in form and substance letters or other documentation reasonably satisfactory to the Agent and with respect to existing indebtedness set forth on Schedule 3.01(d) (except for it being understood that the Notes) in sufficient copies for each Lender:Borrower's existing letters of credit shall be permitted to remain outstanding). (ie) The Agent shall have received the Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.172.15. (iif) Certified copies The Borrower shall have paid (i) all accrued, out of pocket fees and expenses of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by Agent in connection with this Agreement and the execution transactions contemplated hereby (including the accrued reasonable fees and delivery expenses of this Agreement and Mayer, Brown, Xxxx & Maw LLP), in each case to the Notes, if any, extent an invoice shall have been presented to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, Borrower with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notesthereto, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxxall fees due to the Lead Arrangers pursuant to the Second Amended and Restated Fee Letter, counsel for dated as of June 19, 2006, among the Lead Arrangers and the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall be satisfied that all Advances comply with Federal Reserve System Board Regulations T, U and X, and the Borrower shall have received delivered to the Agent a properly completed Federal Reserve Form U-1 for each Lender with respect to the Advances. (h) The initial Term Borrowing (as defined in the Amended and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective DateRestated Five-Year Credit Agreement) shall have occurred.

Conditions Precedent to Initial Borrowing. The obligation of each Lender Party to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries, 2004 there shall not have occurred including the terms and be continuing any Material Adverse Effectconditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (b) All governmental The Borrower (or the trustee under the Existing Senior Note Indenture on behalf of the Borrower) shall have mailed a Redemption Notice in respect of Existing Senior Notes in an aggregate principal amount of $75,000,000 to the holders of the Existing Senior Notes, and third party consents and approvals necessary in connection with the transactions contemplated hereby Agent shall have been obtained (without the imposition provided with a copy of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated herebysuch Redemption Notice. (c) There The Lender Parties shall not have been(i) be satisfied that all Funded Debt, without other than the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to Debt identified on Schedule 4.01(c) and the terms and provisions of the documentation relating to the Tender Offer Existing Senior Notes (except for an extension of the Tender Offer period"Surviving Debt"), has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, and (ii) shall have received satisfactory evidence (including, without limitation, a duly executed payoff letter, UCC termination statements and real property reconveyances) that all liens and security interests granted pursuant to, or in connection with, the Existing Credit Agreement and Plan the Security Documents (as defined in the Existing Credit Agreement) shall be terminated or released contemporaneously with the initial Borrowing. (d) There shall have occurred no Material Adverse Change since September 28, 1997. (e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of Merger their Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could have a Material Adverse Effect other than the matters disclosed in the Annual Report of the Borrower (the "Borrower's Form 10-K") for the fiscal year ended September 28, 1997 filed with the Securities and Exchange Commission and the matters disclosed in the preliminary offering memorandum dated as March 27, 1998 relating to the senior subordinated notes of December 12the Borrower described in clause (A) of the definition of "Permitted Subordinated Debt" (the "Disclosed Litigation") or (ii) purports to affect the legality, 2004 among validity or enforceability of this Agreement, any Note, any other Loan Document, or the Targetconsummation of the transactions contemplated hereby, and there shall have been no adverse change in the status, or financial effect on the Borrower and Offer Subsidiary its Subsidiaries, taken as a whole, of the Disclosed Litigation from that disclosed in the Borrower's Form 10-K. (the “Tender Offer Documentation”f) from the forms of such Tender Offer Documentation most recently delivered to The Lenders, the Agent and the Lenders prior Arranger shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the date of execution of this Agreement by all parties hereto; Lenders, the Agent and the Tender Offer Documentation shall be in full force Arranger, and effect. Offer Subsidiary nothing shall have accepted for purchase not less than the Minimum Shares pursuant come to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary attention of the Minimum Shares Lenders, the Agent or the Arranger during the course of such due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect, without limiting the generality of the foregoing, the Lenders, the Agent and the Arranger shall have been satisfied or waived (other than paymentgiven such access to the management, which will occur substantially contemporaneously with receipt records, books of account, contracts and properties of the proceeds hereof in connection with the Initial Borrowing); Borrower and all other aspects of such portion of the Tender Offer its Subsidiaries as they shall have been conducted in accordance with the Tender Offer Documentationrequested. (dg) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders Lender Parties (including including, to the reasonable invoiced extent invoiced, the accrued fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (fh) The Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLender Party: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17each Lender, as appropriate. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by authorizing this Agreement and the execution and delivery of this Agreement and Agreement, the Notes, if any, and of each other Loan Party approving each Loan Document to which it is or is to be delivered by the Borrowera party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, the Notes, and such Noteseach other Loan Document. (iii) A copy of the charter of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the initial Borrowing) by the Secretary of the State of the State in which each such Person is organized as being a true and correct copy thereof (except in the case of Xxxx In The Box, Inc., in which case such certification shall be provided in a certificate of the Secretary of Xxxx In The Box, Inc.). (iv) A copy of a certificate of the Secretary of State of the State in which each such Person is organized, dated reasonably near the date of the initial Borrowing, listing the charter of the Borrower and each other Loan Party and each amendment thereto on file in such office and certifying that (A) such amendments are the only amendments to the Borrower's, or such other Loan Party's charter on file in such office, (B) the Borrower and each other Loan Party have paid all franchise taxes to the date of such certificate and (C) the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of such State. (v) A certificate of the Borrower and each other Loan Party signed on behalf of the Borrower and such other Loan Party by its President, any Vice President, Chief Financial Officer or Treasurer and its Secretary or any Assistant Secretary, dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter of the Borrower or such other Loan Party since the date of the Secretary of State's certificate (or the Secretary's certificate in the case of Xxxx In The Box, Inc.) referred to in Section 4.01(i)(iv), (B) a true and correct copy of the bylaws of the Borrower and such other Loan Party as in effect on the date of the initial Borrowing, (C) the due incorporation and good standing of the Borrower and such other Loan Party as a corporation organized under the laws of the State of its jurisdiction of incorporation, and the absence of any proceeding for the dissolution or liquidation of the Borrower or such other Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default. (vi) A certificate of the Secretary or an Assistant Secretary of the Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower and such other Loan Party authorized to sign this Agreement and Agreement, the Notes, if any, and each other Loan Document to which they are or are to be delivered by the Borrower parties and the other documents to be delivered hereunderhereunder and thereunder. (ivvii) A security agreement in substantially the form of Exhibit E (as amended from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Borrower and the Inactive Subsidiaries (other than the Inactive Foreign Subsidiaries), together with: (A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank, (B) duly executed financing statements in appropriate form for filing under the Uniform Commercial Code in all jurisdictions that the Agent may deem necessary or desirable in order to perfect the Liens created by the Security Agreement, covering the Collateral described in the Security Agreement, (C) evidence of the insurance required by the terms of the Security Agreement, and (D) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the Liens created by the Security Agreement has been taken. (viii) Deeds of trust, trust deeds and mortgages in substantially the form of Exhibit I-1 and I-2 and covering the properties (other than the Headquarters Property) listed on Part I of Schedule 4.01(j) (as amended from time to time in accordance with their terms, the "Mortgages"), duly executed by the Borrower in appropriate form for filing in all filing or recording offices that the Agent may deem necessary or desirable in order to create a valid and subsisting Lien subject only to Permitted Liens on the property described therein in favor of the Agent for the benefit of the Lender Parties, together with: (A) with respect to the six properties identified on Part II of Schedule 4.01(j) (other than the Headquarters Property), a commitment from First American Title Insurance Company to issue American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies") in form and substance, with endorsements and in amount acceptable to the Agent, issued, coinsured and reinsured by title insurers acceptable to the Agent, insuring the Mortgages covering the six properties listed on Part II of Schedule 4.01(j) (other than the Headquarters Property) to be valid and subsisting Liens with the priority set forth in the applicable Mortgage Policy on the property described therein, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics' and materialmen's Liens) and such coinsurance and direct access reinsurance as the Agent may deem necessary or desirable, (B) such consents and agreements of third parties under existing deeds of trust (other than the existing deed of trust with respect to the Headquarters Property), as the Agent may deem necessary or desirable, and (C) evidence that all other action that the Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken. (ix) A guaranty in substantially the form of Exhibit F (as amended from time to time in accordance with its terms, the "Guaranty"), duly executed by the Guarantors. (x) Such financial, business and other information regarding each Loan Party and their Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and Welfare Plans, collective bargaining agreements and other arrangements with employees, annual financial statements dated September 26, 1996 and September 28, 1997 respectively, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties' due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day of the initial Borrowing), and the Projections. (xi) Evidence of insurance naming the Agent as insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties. (xii) A favorable opinion of (i) in-house Xxxxxx, Xxxx & Xxxxxxxx, LLP, counsel for the Borrower and the other Loan Parties, in substantially the form of Exhibit D-1 G hereto and as to such other matters as any Lender Party through the Agent may reasonably request. (iixiii) Xxxxx Xxxx A favorable opinion of Xxxxxx & XxxxxxxxXxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each caseAgent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation initial Borrowing of each Lender to make an Advance Advances under this Agreement shall be made on the occasion and as of the initial Borrowing shall be subject to first date (the satisfaction “Closing Date”) on such date of which the following conditions precedentprecedent have been satisfied: (a) Since May 31All amounts owing by the Initial Borrower under the Existing Credit Agreement shall have been, 2004 there or concurrently with the initial Borrowing hereunder shall not be, paid in full, and all commitments of the lenders thereunder shall have occurred and be continuing any Material Adverse Effectbeen, or concurrently with the initial Borrowing hereunder shall be, terminated in accordance with the terms of the Existing Credit Agreement. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the The Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (ec) On the Effective Closing Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer representative of the Initial Borrower, dated the Effective Closing Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Closing Date, and (iiiii) No event has occurred and is continuing that constitutes a Default. (fd) The Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Datesuch date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of each of the charter or other organizational documents of the Initial Borrower and of resolutions of the Board of Directors of the Initial Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement. (iiiii) A certificate of the Secretary or an Assistant Secretary authorized representative of the Initial Borrower certifying the names and true signatures of the officers other authorized representatives of the Initial Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iii) [Intentionally Omitted]. (iv) A favorable opinion Favorable written opinions of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Borrower, in the form of (A) Exhibit D-2 andC-1 hereto from Luxembourg counsel to the Initial Borrower, in each case(B) Exhibit C-2 hereto from the Initial Borrower’s special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Xxxxxxxxxx & Xxxx LLP, special counsel to the Initial Borrower. (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender Party to make an Advance and the obligation of an L/C Bank to Issue a Letter of Credit on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date of the following conditions precedent: (a) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party, including the terms and conditions of the charter, bylaws and each class of Equity Interests of each Loan Party and of each agreement or instrument relating to such structure or capitalization. (i) The Required Lenders under the Existing Credit Agreement shall have consented to the addition of a revolving credit facility to the Existing Credit Agreement, the proceeds of which shall be used to repay all Advances under and as defined in the Existing Credit Agreement and (ii) the Administrative Agent (A) shall be satisfied, and shall have received satisfactory evidence, that any outstanding notes under the Existing Credit Agreement held by any lender thereunder who is not a Lender under this Agreement shall be prepaid, redeemed or defeased in full or otherwise satisfied and extinguished contemporaneously with the initial Borrowing and (B) shall be satisfied in all respects with the Existing Debt and all terms and conditions of any Existing Debt Agreement; (c) Since May 31December 28, 2004 there 2003 nothing shall not have occurred (and the Lenders shall have become aware of no facts or conditions not previously known) which the Lenders shall determine could reasonably be continuing any expected to have a Material Adverse Effect. (bd) All There shall exist no action, suit, investigation, litigation or proceeding pending or threatened before any court, governmental and third party consents and approvals necessary in connection with agency or arbitrator affecting any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect or which purports to affect the transactions contemplated hereby shall have been obtained (without legality, validity or enforceability of this Agreement, any Note, any other Loan Document or the imposition consummation of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (ce) There The Borrower shall not have beenpaid all accrued costs, without fees and expenses of, or other compensation payable to, the consent Administrative Agent, the Syndication Agent, the Lead Arranger and the Lender Parties (including the accrued fees and expenses of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification counsel to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitationAdministrative Agent, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Syndication Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation Lead Arranger). (f) The Synthetic Lease Documents shall be in full force and effect. Offer Subsidiary , and no consent shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof be required thereunder in connection with the Initial Borrowing); execution and all other aspects delivery of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentationthis Agreement. (dg) The Borrower Administrative Agent shall have paid received, and shall be satisfied in all reasonable invoiced fees and out-of-pocket expenses respects with, (i) if not readily available from public sources on the internet, the Consolidated financial statements of the Agent Borrower and its Subsidiaries for the Lenders Fiscal Years ended December 30, 2001, December 29, 2002 and December 28, 2003, including balance sheets and income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP and (including ii) the reasonable invoiced fees unaudited interim Consolidated financial statements of the Borrower and expenses of counsel its Subsidiaries for each fiscal quarter ended subsequent to the Agent required by date of the latest financial statements delivered pursuant to clause (i) of this Agreement), paragraph as to the extent invoices therefor have been received at least one Business Day before which such Borrowing)financial statements are available. (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (iih) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Administrative Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each LenderLender Party: (i) Fully executed counterparts of this Agreement. (ii) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17each Lender, as appropriate. (iiiii) Certified copies of the resolutions of the Board of Directors of the Borrower and each other Loan Party approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and Agreement, the Notes, if any, and each other Loan Document to which it is or is to be delivered by the Borrowera party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, the Notes, and such Noteseach other Loan Document. (iiiiv) With respect to each Loan Party, a copy of a certificate of the Secretary of State of the State of such Loan Party’s organization, dated reasonably near the date of the initial Borrowing, listing the charter of such Loan Party and each amendment thereto on file in such office and certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary’s office, and (B) that (1) such amendments are the only amendments to such Loan Party’s charter on file in such office, (2) such Loan Party has paid all franchise taxes to the date of such certificate, and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the State of such Loan Party’s organization. (v) With respect to each Loan Party, a copy of a certificate of the Secretary of State of each jurisdiction in which such Loan Party is qualified to do business, as listed on Schedule 4.01(h)(v), dated reasonably near the date of the initial Borrowing, stating that such Loan Party is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4.01(h)(iv), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date of the initial Borrowing, (C) the due incorporation and good standing of such Loan Party as a corporation organized under the laws of the State of its jurisdiction of incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the initial Borrowing and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default. (vii) A certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement and Agreement, the Notes, if any, and each other Loan Document to which they are or are to be delivered by the Borrower parties and the other documents to be delivered hereunderhereunder and thereunder. (ivviii) A favorable opinion of (i) in-house counsel for the Borrower reaffirmation agreement in substantially the form of Exhibit D-1 E-4 (as amended from time to time in accordance with its terms, the “Reaffirmation Agreement”), duly executed by each Loan Party, together with: (A) certificates representing any Pledged Shares (as defined in the Pledge Agreement) not previously delivered to the Collateral Agent (as defined in the Pledge Agreement), accompanied by undated stock powers executed in blank, and any instruments evidencing the Pledged Debt (iias defined in the Security Agreement) Xxxxx Xxxx & Xxxxxxxxnot previously delivered to the Administrative Agent, counsel endorsed in blank, (B) duly executed financing statements in appropriate form for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect, maintain and protect the Liens created by the Security Agreement, the Pledge Agreement and the Subordinate Security Agreement covering the Collateral described in the Security Agreement, the Pledge Agreement and the Subordinate Security Agreement and completed requests for information dated on or before the date of the initial Borrowing listing all effective financing statements filed in such jurisdictions that name any Subsidiary of the Borrower (other than any Foreign Subsidiary) as debtor, together with copies of such other financing statements, (C) evidence of the insurance required by the terms of the Security Agreement and the Subordinate Security Agreement (subject to such exceptions as may be acceptable to the Administrative Agent), and (D) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect, maintain and protect the Liens created under the Security Agreement, the Pledge Agreement, the Subordinate Security Agreement or covering any Collateral, or the priority thereof, has been taken. (ix) Trust Deed Modifications with respect to the Trust Deeds, duly executed by the applicable Loan Party in appropriate form for filing in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to maintain a valid and subsisting Lien subject only to Permitted Liens on the property described therein in favor of the Administrative Agent for the Borrowerbenefit of the Secured Parties, together with: (A) Trust Deed modification endorsements to the Trust Deed Policies issued by Chicago Title Insurance Company in form and substance and in amounts acceptable to the Administrative Agent, (B) evidence of the insurance required by the terms of each Trust Deed (subject to such exceptions as may be acceptable to the Administrative Agent), and (C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to maintain valid first and subsisting Liens on the property described in the form Trust Deeds has been taken. (x) Intentionally omitted. (xi) Such financial, business and other information regarding the Borrower and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and Employee Benefit Plans, collective bargaining agreements and other arrangements with employees, and forecasts prepared by management of Exhibit D-2 and, in each casethe Borrower, in form and substance satisfactory to the AgentLender Parties, of balance sheets, income statements and cash flow statements on an annual basis for each year until the Commitment Termination Date. (vxii) There shall not have beenA certificate, without in the consent form of the AgentExhibit I hereto, which shall not be unreasonably withheld, delayed or conditioned, any material modification attesting to the pro forma Solvency of each Loan Party before and after giving effect to the transactions contemplated hereby, from the Borrower’s chief financial statements officer. (xiii) Favorable opinions of (i) Holland & Knight LLP, special California counsel for the Borrower and its Subsidiaries most recently delivered to the Agent prior to other Loan Parties, in substantially the date form of execution of this Agreement by all parties hereto. Exhibit J-1 hereto and (gii) The Agent shall have received and be reasonably satisfied with a copy Xxxxxx X. Xxxxxxxx, general counsel of the Borrower’s investment policy , in substantially the form of Exhibit J-2 hereto and, in each case, as in effect on to such other matters as any Lender Party through the Effective DateAgent may reasonably request.

Conditions Precedent to Initial Borrowing. The obligation of each Lender Bank to make an Advance on the occasion of the initial Borrowing shall be is subject to the satisfaction on such date following conditions precedent (each of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and documents referred to below to be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent Administrative Agent, dated a date on or within 10 days prior to the date hereof and (except for the Notes) in sufficient copies for each LenderBank): (a) The Administrative Agent shall have received, on behalf of the Banks, a certificate of the Secretary or an Assistant Secretary of the Borrower certifying as to: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, (ii) a true and such Notes.correct copy of the bylaws of the Borrower as then in effect and (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (ivb) A The Administrative Agent shall have received, on behalf of the Banks, a copy of the restated articles of incorporation of the Borrower and each amendment thereto, each certified by the Secretary of State of the State of Utah as being a true and correct copy thereof, and a certificate of said Secretary of State stating that the Borrower has legal existence and is in good standing with the office of said Secretary of State. (c) The Administrative Agent shall have received, on behalf of the Banks, a favorable opinion of (i) in-house counsel for the Borrower Assistant General Counsel of the Borrower, substantially in the form of Exhibit D-1 C hereto and as to such other matters as any Bank through the Administrative Agent may reasonably request. (d) The Administrative Agent shall have received, on behalf of the Banks, a favorable opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Administrative Agent, substantially in the form of Exhibit D hereto. (e) The Borrower shall have paid all fees due and payable as of or before the Closing Date to the Banks. (f) A certificate from an officer of the Borrower to the effect that (i) no Default hereunder shall have occurred and be continuing; (ii) no Default under, and as defined in, the Existing Revolving Credit Agreement shall have occurred and be continuing; and (iii) each of the representations and warranties in Section 4.01 of this Agreement is true and correct on the date hereof. (g) The Administrative Agent shall have received evidence that, on or prior to the Closing Date, the Borrower shall have (i) repaid in full the outstanding principal amount of each of the outstanding “Advances” and “Special Rate Loans” under, and as defined in, the Existing Revolving Credit Agreement, together with all accrued and unpaid interest thereon, all fees payable in respect thereof and all other amounts payable thereunder, and (ii) Xxxxx Xxxx & Xxxxxxxxcanceled each of the “Commitments” as defined therein. (h) The Administrative Agent shall have received, on behalf of the Banks, a favorable opinion of Utah counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance and covering such matters as reasonably satisfactory to the Administrative Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an its initial Advance on the occasion of the initial Borrowing hereunder shall be subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to that the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower and the Collateral Manager as in effect on the Funding Effective Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower and of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) its certificate of good standing issued by the jurisdiction of its organization, (iii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iv) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (v) no Default or Event of Default has occurred and is continuing, and (vi) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, duly filed on or before the Funding Effective Date, under the UCC in all jurisdictions that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (f) payoff or release letters evidencing the termination of, and repayment in full of obligations under, the Prior Credit Agreement, and copies of proper financing statement filings necessary to release or assign (in the discretion of the Administrative Agent) all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any transferor in connection with the Prior Credit Agreement; (g) legal opinions (addressed to each of the Secured Parties) of Dechert LLP, New York counsel to the Borrower and the Collateral Manager and Xxxxx Xxxxxxx LLP, counsel to the Collateral Agent, covering such matters as the Administrative Agent and its counsel shall reasonably request; (except h) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect; (i) evidence that (x) all fees to be received by each Lender on or prior to the Closing Date have been received; and (y) the accrued fees and expenses of Xxxxxxx and Xxxxxx, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior to the Closing Date), shall have been paid by the Borrower; (j) an executed counterpart of the Collateral Agent Fee Letter; (k) Delivery of such Collateral (including any promissory note, executed assignment agreements and word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the Notesextent received by the Borrower) in sufficient copies for accordance with the provisions of Article XIV shall have been effected; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each Lenderitem of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) The Notes to the order Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Lenders to the extent requested by any Lender Closing Date and (B) those granted pursuant to Section 2.17.this Agreement; (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery has acquired its ownership in such Collateral in good faith without notice of this Agreement and the Notesany adverse claim, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.except as described in clause (i) above; (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Noteshas not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if anyany such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to be delivered by the Borrower and the other documents to be delivered hereunder.this Agreement; (iv) A favorable opinion of (i) in-house counsel for the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) this Agreement creates, upon Delivery of Collateral, filing of the financing statements required hereunder and execution of the Account Control Agreement, a first priority, perfected security interest in the form Collateral, except as permitted by this Agreement; (m) reserved; (n) an executed Certificate of Exhibit D-1 Beneficial Ownership and all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (iior its equivalent) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, the Collateral Manager and the BDC; (o) a closing certificate from the Borrower substantially in the form of set forth on Exhibit D-2 andH hereto; (p) on or before the Closing Date, in each case, in form and substance satisfactory delivery to the Agent.Custodian of Related Documents for initial Eligible Collateral Loans; (vq) There shall not have beensuch other opinions, without the consent of the Agentinstruments, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for certificates and documents from the Borrower and its Subsidiaries most recently delivered to as the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent Agents or any Lender shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Daterequested.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the occurrence of the Effective Date and the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the Agent shall have received for acceptance by the account of each Lender a certificate signed by a duly authorized officer Borrower of the Borrower, dated proceeds of such Borrowing shall constitute a representation and warranty by the Effective Date, stating that:Borrower that on the date of such Borrowing such statements are true): (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The the representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of such date, before and after giving effect to such Borrowing and to the Effective Dateapplication of the proceeds therefrom, as though made on and as of such date, and (iiiii) No no event has occurred and is continuing continuing, or would result from such Borrowing, or from the application of the proceeds therefrom, that constitutes would result in a Default or Event of Default.: (fb) The Agent shall have received on a "payoff" letter or before the Effective Date the following, each dated the Effective Date, in form and substance letters or other documentation reasonably satisfactory to the Agent and with respect to existing indebtedness set forth on Schedule 3.02(b) (except for it being understood that the Notes) in sufficient copies for each Lender:Borrower's existing letters of credit shall be permitted to remain outstanding); (ic) The Agent shall have received the Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17.2.15; (iid) Certified copies The Borrower shall have paid (i) all accrued, out of pocket fees and expenses of the resolutions of Agent and the Board of Directors of the Borrower approving the transactions contemplated by Lenders in connection with this Agreement and the execution transactions contemplated hereby (including the accrued reasonable fees and delivery expenses of this Agreement and the NotesMayer, if anyBrown, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iiiXxxx & Maw LLP) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxxall fees due to the Lead Arrangers pursuant to the Amended and Restated Fee Letter, counsel for dated as of June 6, 2006, among the Lead Arrangers and the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory case to the Agent.extent an invoice shall have been presented to the Borrower with respect thereto; and (ve) There The Agent shall not have beenbe satisfied that all Advances comply with Federal Reserve System Board Regulations T, without the consent of the AgentU and X, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for and the Borrower and its Subsidiaries most recently shall have delivered to the Agent prior a properly completed Federal Reserve Form U-1 for each Lender with respect to the date of execution of this Agreement by all parties heretoAdvances. (gf) The Agent Five-Year Credit Agreement shall have received been duly executed and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Datefull force and effect.

Conditions Precedent to Initial Borrowing. The obligation initial Borrowing of each Lender to make an Advance Advances under this Agreement shall be made on the occasion and as of the initial Borrowing shall be subject to first date (the satisfaction “Closing Date”) on such date of which the following conditions precedentprecedent have been satisfied: (a) Since May 31All amounts owing by the Initial Borrower under the Existing Credit Agreement shall have been, 2004 there or concurrently with the initial Borrowing hereunder shall not be, paid in full, and all commitments of the lenders thereunder shall have occurred and be continuing any Material Adverse Effectbeen, or concurrently with the initial Borrowing hereunder shall be, terminated in accordance with the terms of the Existing Credit Agreement. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the The Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (ec) On the Effective Closing Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer representative of the Initial Borrower, dated the Effective Closing Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Closing Date, and (iiiii) No event has occurred and is continuing that constitutes a Default. (fd) The Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Datesuch date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of each of the charter or other organizational documents of the Initial Borrower and of resolutions of the Board of Directors of the Initial Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement, together with an English translation of each of the foregoing documents that are not otherwise being provided in English. (iiiii) A certificate of the Secretary or an Assistant Secretary authorized representative of the Initial Borrower certifying the names and true signatures of the officers other authorized representatives of the Initial Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iii) The Pledge Agreement and the Registration Rights Agreement, in each case duly executed and delivered by the Initial Borrower, together with (A) proper financing statements under the Uniform Commercial Code and similar requirements of law that are necessary to perfect and protect the Mortgage created or purported to be created under the Pledge Agreement, covering all collateral described therein, and (B) proper termination statements under the Uniform Commercial Code and similar requirements of law that are necessary to terminate or amend existing liens on all collateral described therein granted in favor of the Existing Agent under the terms of the Existing Pledge Agreement, in each case, in appropriate form for filing or recording. (iv) A favorable opinion Favorable written opinions of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Borrower, in the form of (A) Exhibit D-2 andC-1 hereto from Luxembourg counsel to the Initial Borrower, in each case(B) Exhibit C-2 hereto from the Initial Borrower’s special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Xxxxxxxxxx & Xxxx LLP, special counsel to the Initial Borrower. (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be under this Agreement (as in effect prior to its amendment and restatement hereby) is subject to the satisfaction on such date of the following conditions precedent:: 79 74 (a) Since May 31The Lenders shall be satisfied that, 2004 there in connection with the initial Borrowing hereunder, simultaneously with such initial Borrowing, all amounts owing under the Old Credit Agreement shall not have occurred been paid in full and all commitments to lend thereunder shall be continuing any Material Adverse Effectterminated. (b) All There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental and third party consents and approvals necessary agency or arbitrator that, in connection with the transactions contemplated hereby shall have been obtained (without the imposition sole judgment of any conditions that are not acceptable Lender, (i) could have a Material Adverse Effect on AGCO or any Subsidiary Guarantor or (ii) purports to affect the Lenders in their reasonable discretion) and shall remain in effectlegality, and no law validity or regulation shall be applicable in enforceability of this Agreement, any Note, any other Loan Document, any L/C Related Document or the reasonable judgment consummation of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions Each of the documentation relating Lenders shall have completed a due diligence investigation of AGCO and its Subsidiaries in scope, and with results, satisfactory to the Tender Offer (except for an extension each of the Tender Offer period)Lenders, including, without limitation, and the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms results of such Tender Offer Documentation most recently delivered investigation shall be acceptable to the Agent and each of the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentationtheir sole discretion. (d) The Borrower AGCO shall have paid all reasonable invoiced fees and out-of-pocket expenses of to the Administrative Agent the closing fee separately agreed to between AGCO and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing)Administrative Agent. (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Administrative Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Agent Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17Lenders. (ii) Certified copies of the resolutions of the Board of Directors of the each Borrower and each other Loan Party approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and Agreement, the Notes, if any, each other Loan Document and each L/C Related Document to which it is or is to be delivered by the Borrowera party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, the Notes, each other Loan Document and such Noteseach L/C Related Document. (iii) A certificate copy of the Secretary or an Assistant Secretary charter of each Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Borrower certifying the names initial 80 75 Borrowing) by an appropriate governmental official as being a true and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereundercorrect copy thereof. (iv) A favorable opinion For AGCO and each other Loan Party other than a Foreign Subsidiary, a copy of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent a certificate of the AgentSecretary of State of the state of organization of such Person, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to dated reasonably near the date of execution the initial Borrowing, listing the charter of this Agreement by all parties hereto. (g) The Agent shall have received such Person and be reasonably satisfied with a copy of the Borrower’s investment policy as each amendment thereto on file in effect on the Effective Date.his office and certifying that

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be under this Agreement (as in effect prior to its amendment and restatement hereby) is subject to the satisfaction on such date of the following conditions precedent:: 73 73 (a) Since May 31The Lenders shall be satisfied that, 2004 there in connection with the initial Borrowing hereunder, simultaneously with such initial Borrowing, all amounts owing under the Old Credit Agreement shall not have occurred been paid in full and all commitments to lend thereunder shall be continuing any Material Adverse Effectterminated. (b) All There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental and third party consents and approvals necessary agency or arbitrator that, in connection with the transactions contemplated hereby shall have been obtained (without the imposition sole judgment of any conditions that are not acceptable Lender, (i) could have a Material Adverse Effect on AGCO or any Subsidiary Guarantor or (ii) purports to affect the Lenders in their reasonable discretion) and shall remain in effectlegality, and no law validity or regulation shall be applicable in enforceability of this Agreement, any Note, any other Loan Document, any L/C Related Document or the reasonable judgment consummation of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions Each of the documentation relating Lenders shall have completed a due diligence investigation of AGCO and its Subsidiaries in scope, and with results, satisfactory to the Tender Offer (except for an extension each of the Tender Offer period)Lenders, including, without limitation, and the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms results of such Tender Offer Documentation most recently delivered investigation shall be acceptable to the Agent and each of the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentationtheir sole discretion. (d) The Borrower AGCO shall have paid all reasonable invoiced fees and out-of-pocket expenses of to the Administrative Agent the closing fee separately agreed to between AGCO and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing)Administrative Agent. (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Administrative Agent shall have received on or before the Effective Date day of the initial Borrowing the following, each dated the Effective Datesuch day (unless otherwise specified), in form and substance satisfactory to the Agent Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17Lenders. (ii) Certified copies of the resolutions of the Board of Directors of the each Borrower and each other Loan Party approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and Agreement, the Notes, if any, each other Loan Document and each L/C Related Document to which it is or is to be delivered by the Borrowera party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement Agreement, the Notes, each other Loan Document and such Noteseach L/C Related Document. (iii) A copy of the charter of each Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the initial 74 74 Borrowing) by an appropriate governmental official as being a true and correct copy thereof. (iv) For AGCO and each other Loan Party other than a Foreign Subsidiary, a copy of a certificate of the Secretary of State of the state of organization of such Person, dated reasonably near the date of the initial Borrowing, listing the charter of such Person and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to such Person's charter on file in his office; (B) such Person has paid all franchise taxes to the date of such certificate; and (C) such Person is duly incorporated and in good standing or presently subsisting under the laws of the jurisdiction of organization. (v) A certificate of each Borrower and each other Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the date of the initial Borrowing (the statements made in which certificate shall be true on and as of the date of the initial Borrowing), certifying as to (A) the absence of any amendments to the charter of such Person since the date of the certificate referred to in Section 3.01(e)(iii); (B) a true and correct copy of the bylaws of such Person as in effect on the date of the initial Borrowing; and (C) the due incorporation and (if such Person is not a Foreign Subsidiary) good standing of such Person as a corporation organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person. (vi) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the each Borrower and each other Loan Party certifying the names and true signatures of the officers of the Borrower such Person authorized to sign this Agreement Agreement, the Notes and the Notes, if any, each other Loan Document to which it is or is to be delivered by the Borrower parties and the other documents to be delivered hereunderhereunder and thereunder. 75 75 (vii) Guaranties duly executed by each Person specified in Schedule 3.01(e)(vii) (each such Subsidiary of AGCO executing the same being a "Subsidiary Guarantor"), each such Guaranty to be in form and substance satisfactory to the Administrative Agent, and guaranteeing the obligations specified in such Schedule. (ivviii) Such financial, business and other information regarding each Loan Party as the Lenders shall have requested, including without limitation information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA, collective bargaining agreements and other arrangements with employees, annual consolidated financial statements dated December 31, 1995, of AGCO and its Restricted Subsidiaries and AGCO and its Subsidiaries, respectively. (ix) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each caseletter, in form and substance satisfactory to the Administrative Agent, from AGCO to Arthxx Xxxexxxx XXX, its independent certified public accountants, advising such accountants that the Co-Managers and the Canadian Administrative Agent have been authorized to exercise all rights of AGCO to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to AGCO and its Subsidiaries and directing such accountants to comply with any reasonable request of any Co-Manager or the Canadian Administrative Agent for such information, and also advising such accountants that the Lenders have relied and will rely upon the financial statements of the AGCO and its Subsidiaries examined by such accountants in determining whether to enter into, or to take action or refrain from taking action under, the Loan Documents. (vx) There shall not have beenA favorable opinion of King & Spalding, without counsel for the consent of the AgentBorrowers, which shall not be unreasonably withheld, delayed or conditioned, any material modification in form and substance satisfactory to the pro forma financial statements Lenders. (xi) A favorable opinion of Michxxx Xxxxx, xxce president and general counsel of AGCO, in form and substance satisfactory to the Lenders. (xii) A favorable opinion of Jerexx Xxxxxx, xx form and substance satisfactory to the Lenders. (xiii) A favorable opinion of Herbxxx Xxxxx, Xxench counsel to the Borrowers, in form and substance satisfactory to the Lenders. (xiv) Such favorable opinions of McDoxxxxx Xxxdy, Canadian counsel to the Borrowers, Hengeler Mullxx Xxxtxxx Xxxtx, Xxrman counsel to the Borrowers, and De Brauw Blackstone Westbroek, Netherlands counsel to the Borrowers, and such other favorable opinions of counsel as any Co-Manager may reasonably request, in form and substance satisfactory to the Lenders. 76 76 (xv) A favorable opinion of Shearman & Sterling, counsel for the Borrower Co-Managers, in form and its Subsidiaries most recently substance satisfactory to the Co-Managers. (xvi) Evidence that AGCO has delivered to the Agent prior to trustee under the date of execution of Subordinated Debt Indenture a notice stating that this Agreement by all parties heretoand related instruments and documents are the "Bank Credit Agreement" under such indenture. (gxvii) The Agent Such other approvals, opinions or documents as any Lender may reasonably request. (f) AGCO shall have received paid all accrued fees and be reasonably satisfied with a copy expenses of the Borrower’s investment policy as in effect on Agents, the Effective DateCo-Managers and the Lenders (including the accrued fees and expenses of counsel to the Co-Managers) that have theretofore been invoiced.

Conditions Precedent to Initial Borrowing. The obligation initial Borrowing of each Lender to make an Advance Advances under this Agreement shall be made on the occasion and as of the initial Borrowing shall be subject to first date (the satisfaction "Closing Date") on such date of which the following conditions precedentprecedent have been satisfied: (a) Since May 31All amounts owing by the Initial Borrower under the Existing Credit Agreement shall have been, 2004 there or concurrently with the initial Borrowing hereunder shall not be, paid in full, and all commitments of the lenders thereunder shall have occurred and be continuing any Material Adverse Effectbeen, or concurrently with the initial Borrowing hereunder shall be, terminated in accordance with the terms of the Existing Credit Agreement. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead Arrangers, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares shall have been satisfied or waived (other than payment, which will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the The Initial Borrowing); and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced accrued fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such BorrowingAgent). (ec) On the Effective Closing Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer representative of the Initial Borrower, dated the Effective Closing Date, stating that: (i) Since May 31, 2004 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct in all material respects on and as of the Effective Closing Date, and (iiiii) No event has occurred and is continuing that constitutes a Default. (fd) The Agent shall have received on or before the Effective Closing Date the following, each dated the Effective Datesuch date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.17. (ii) Certified copies of each of the charter or other organizational documents of the Initial Borrower and of resolutions of the Board of Directors of the Initial Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such NotesAgreement, together with an English translation of each of the foregoing documents that are not otherwise being provided in English. (iiiii) A certificate of the Secretary or an Assistant Secretary authorized representative of the Initial Borrower certifying the names and true signatures of the officers other authorized representatives of the Initial Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iii) The Pledge Agreement and the Registration Rights Agreement, in each case duly executed and delivered by the Initial Borrower, together with (A) proper financing statements under the Uniform Commercial Code and similar requirements of law that are necessary to perfect and protect the Mortgage created or purported to be created under the Pledge Agreement, covering all Collateral described therein, and (B) proper termination statements under the Uniform Commercial Code and similar requirements of law that are necessary to terminate or amend existing liens on all Collateral granted in favor of the Existing Agent under the terms of the Existing Pledge Agreement, in each case, in appropriate form for filing or recording. (iv) A favorable opinion Favorable written opinions of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Borrower, in the form of (A) Exhibit D-2 andC-1 hereto from Luxembourg counsel to the Initial Borrower, in each case(B) Exhibit C-2 hereto from the Initial Borrower's special counsel, and (C) Exhibit C-3 hereto from Cadwalader, Wickersham & Taft LLP, specixx xxxxxxx to the Xxxxial Borrower. (v) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.

Conditions Precedent to Initial Borrowing. The obligation of each Lender to make an Advance on the occasion of the initial Borrowing shall be subject to the satisfaction on such date of the following conditions precedent: (a) Since May 31, 2004 2003 there shall not have occurred and be continuing any Material Adverse Effect. (b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (c) There shall not have been, without the consent of Joint Lead ArrangersSuper Majority Lenders, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the terms and provisions of the documentation relating to the Tender Offer (except for an extension of the Tender Offer period), including, without limitation, the Agreement and Plan of Merger dated as of December 12, 2004 among the Target, the Borrower and Offer Subsidiary (the “Tender Offer Documentation”) from the forms of such Tender Offer Documentation most recently delivered to the Agent and the Lenders prior to the date of execution of this Agreement by all parties hereto; and the Tender Offer Documentation shall be in full force and effect. Offer Subsidiary shall have accepted for purchase not less than the Minimum Shares pursuant to the Tender Offer; all conditions precedent to the purchase by Offer Subsidiary of the Minimum Shares and shall have been satisfied or waived (other than payment, which expect that payment will occur substantially contemporaneously with receipt of the proceeds hereof in connection with the Initial Borrowing); , and all other aspects of such portion of the Tender Offer shall have been conducted in accordance with the Tender Offer Documentation. (d) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Borrowing). (e) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that: (i) Since May 31, 2004 2003 there shall not have occurred and be continuing any Material Adverse Effect, (ii) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and (iii) No event has occurred and is continuing that constitutes a Default. (f) The Agent shall have received on or before the Effective Date the following, each dated the Effective Date, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.172.18. (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder. (iv) A favorable opinion of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) Xxxxx Xxxx & Xxxxxxxx, counsel for the Borrower, in the form of Exhibit D-2 and, in each case, in form and substance satisfactory to the Agent. (v) There shall not have been, without the consent of the Agent, which shall not be unreasonably withheld, delayed or conditioned, any material modification to the pro forma financial statements for the Borrower and its Subsidiaries most recently delivered to the Agent prior to the date of execution of this Agreement by all parties hereto. (g) The Agent shall have received and be reasonably satisfied with a copy of the Borrower’s investment policy as in effect on the Effective Date.