Common use of Conditions Precedent to the Initial Advance Clause in Contracts

Conditions Precedent to the Initial Advance. The obligation of the Bank to fund the initial Advances or issue any Letter of Credit is subject to the condition precedent that the Bank shall have received the following, each in form and substance satisfactory to the Bank: (a) The Note, properly executed on behalf of the Co-Borrowers. (b) The Guaranties, properly executed on behalf of the appropriate Guarantor. (c) The Security Documents (other than the Mortgages), properly executed on behalf of the appropriate Credit Party, together with: (i) financing statements with respect to each Credit Party to be filed in all jurisdictions which, in the opinion of the Bank, are reasonably necessary to perfect the security interests created by the Security Documents, to the extent such security interests can be perfected by filing; and (ii) current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have been filed and remain in effect against any Credit Party, and that no financing statements or other notifications or filings have been filed and remain in effect against any Credit Party, other than those for which the Bank has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (d) Evidence of all insurance required by the terms of any Loan Document, together with appropriate certificates and loss payable endorsements showing the Bank as additional insured and loss payee thereunder. (e) Evidence that all actions which, in the opinion of the Bank, are reasonably necessary to perfect and protect the security interests created by the Security Documents have been taken. (f) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified by the Secretary or Assistant Secretary of such Credit Party as being true and correct copies thereof. (g) A certificate of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (h) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify the names of the officers of such Credit Party authorized to sign the Loan Documents to which such Credit Party is a party and the other documents or certificates to be delivered pursuant to this Agreement, including (as to the Co-Borrowers) requests for Advances and Eurodollar Fundings, together with the true signatures of such officers. The Bank may conclusively rely on such certificates until it shall receive a further certificate of the Secretary of an Assistant Secretary of a Credit Party canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (i) A Borrowing Base Certificate as of a date not more than ten (10) days prior to the Closing Date. (j) Collateral audit reports in all respects satisfactory to the Bank. (k) The following financial information: (i) audited financial statements for the period ednded December 31, 2002 for the Consolidated Group (as of such date), (ii) interim financial statements of the Consolidated Group for the period from December 31, 2002 through July 31, 2003; and (iii) a business plan for the Co-Borrowers’ 2003 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ fiscal year end, 2006, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management of the Co-Borrowers, together with a summary of key assumptions utilized by management in the preparation of such projections. (l) The Securities Account Pledge Agreement, properly executed on behalf of the Co-Borrowers. (m) Holding Company Subordination Agreement. (n) A signed copy of an opinion of counsel for each Credit Party addressed to the Bank. (o) Availability of at least three million dollars ($3,000,000) under the Revolving Commitment at Closing. (p) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 and 8.4 hereof.

Conditions Precedent to the Initial Advance. The obligation of the Bank to fund the initial Advances or issue extend any Letter of Credit credit contemplated by this Agreement is subject to the condition precedent that fulfillment to Bank’s satisfaction of all of the Bank shall have received the following, each in form and substance satisfactory to the Bankfollowing conditions: (a) The NoteThis Agreement, properly duly executed on behalf of the Co-Borrowersby Borrower. (b) The GuarantiesNote, properly duly executed on behalf of the appropriate Guarantorby Borrower. (c) The Security Documents SBA/Ex-Im Bank Joint Application, duly completed and executed by Borrower. (other than d) The Borrower Agreement, duly executed by Borrower and Ex-Im Bank. (e) An Exceptions Approval Letter, duly executed by Ex-Im Bank. (f) A true and correct copy of any and all leases pursuant to which Borrower is leasing the MortgagesPremises, together with a landlord’s disclaimer and consent with respect to each such lease. (g) A true and correct copy of any and all mortgages pursuant to which Borrower has mortgaged the Premises, together with a mortgagee’s disclaimer and consent with respect to each such mortgage. (h) The Life Insurance Assignment (if any), properly executed on behalf of by the appropriate Credit Partybeneficiary and owner thereof, and the Life Insurance Policy (if any), together with:with evidence that such Life Insurance Policy is subject to no assignments or encumbrances other than the Life Insurance Assignment. (i) financing statements with respect to each Credit Party to be filed in all jurisdictions whichThe Lockbox Agreement, in the opinion duly executed by Borrower, Bank and Bank of the BankAmerica, are reasonably necessary to perfect the security interests created by the Security Documents, to the extent such security interests can be perfected by filing; andNational Association. (iij) current Control agreements, duly executed by Borrower and each bank at which Borrower maintains deposit accounts. (k) The Security Agreement. (l) A Guaranty, duly executed by Parent. (m) Current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that (i) no state or federal tax liens Liens have been filed and remain in effect against any Credit PartyBorrower except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of some of the proceeds of the Advances to be made on the Closing Date, they will satisfy, release or terminate such Liens in a manner satisfactory to Bank, and that no (ii) Bank has duly filed all financing statements or other notifications or filings have been filed and remain in effect against any Credit Partynecessary to perfect the Security Interest, other than those for which to the Bank has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1extent the Security Interest is capable of being perfected by filing. (dn) Evidence One or more certificates of all insurance required by the terms of any Loan Document, together with appropriate certificates and loss payable endorsements showing the Bank as additional insured and loss payee thereunder. (e) Evidence that all actions which, in the opinion of the Bank, are reasonably necessary to perfect and protect the security interests created by the Security Documents have been taken. (f) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified by the Borrower’s Secretary or Assistant Secretary certifying that attached to such certificate, or incorporated therein, are (i) the resolutions of such Credit Party as being true Borrower’s Directors and, if required, Owners, authorizing the execution, delivery and correct copies thereof. (g) A certificate performance of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (h) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify the names of the officers of such Credit Party authorized to sign the Loan Documents to which such Credit Party Borrower is a party, (ii) true, correct and complete copies of Borrower’s Constituent Documents, and (iii) examples of the signatures of Borrower’s Officers or agents authorized to execute and deliver the Loan Documents to which Borrower is a party and the other documents or certificates to be delivered pursuant to this Agreementinstruments, agreements and certificates, including (as to the Co-Borrowers) requests for Advances and Eurodollar FundingsAdvances, together with the true signatures of such officers. The Bank may conclusively rely on such certificates until it shall receive a further Borrower’s behalf. (o) A current certificate of issued by the Secretary of an State of Delaware, certifying that Borrower is in good standing and is in compliance with all applicable formation requirements of the State of Delaware. (p) One or more certificates of Parent’s Secretary or Assistant Secretary certifying that attached to such certificate, or incorporated therein, are (i) the resolutions of Parent’s board of directors and, if required, owners, authorizing the execution, delivery and performance of the Loan Documents to which Parent is a Credit Party canceling or amending the prior certificate party, (ii) true, correct and submitting complete copies of Parent’s Constituent Documents, and (iii) examples of the signatures of Parent’s corporate officers or agents authorized to execute and deliver the officers named in such further certificateLoan Documents to which Parent is a party and other instruments, agreements and certificates on Parent’s behalf. (iq) A Borrowing Base Certificate as current certificate issued by the Secretary of a date not more than ten (10) days prior to State of California, certifying that Parent is in good standing and is in compliance with all applicable formation requirements of the Closing DateState of California. (jr) Collateral audit reports Evidence that Borrower is duly licensed or qualified to transact business in all respects satisfactory jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. (s) A certificate of an Officer of Borrower confirming the representations and warranties set forth in Article V. (t) A favorable opinion of counsel to the Borrower and Parent, addressed to Bank. (ku) The following financial information: Certificates of the insurance required hereunder, with all hazard insurance containing a lender’s loss payable endorsement in Bank’s favor and with all liability insurance naming Bank as an additional insured. (iv) audited Payment of the fees and commissions due under Section 2.6 through the date of the initial Advance and reasonable expenses incurred by Bank through such date and required to be paid by Borrower under Section 8.5, including all reasonable legal expenses incurred through the date of this Agreement. (w) Review and approval by Bank of the Companies’ internally prepared financial statements for the period ednded December ended May 31, 2002 for the Consolidated Group 2004. (as x) Review and approval by Bank of such date), (ii) interim Parent’s consolidating internally prepared financial statements of the Consolidated Group for the period from December ended May 31, 2002 through July 31, 2003; 2004. (y) Review and approval of the Companies’ consolidated financial projections. (iiiz) a business plan for the Co-Borrowers’ 2003 fiscal yearSatisfactory results of invoice verifications and vendor references. (aa) Review and approval by Bank of all material agreements, including a written analysis licensing agreements, royalty agreements, shareholder debt agreements, the management fee agreement, earn-out agreements, seller notes, mortgage agreements, grower contracts, and material leases. (bb) No material adverse change in the financial condition of the business and prospects for Companies or Parent shall have occurred since the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ fiscal year end, 2006, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management date of the Co-Borrowersmost recent financial statement of Borrower received by Bank. (cc) True and complete copies of all license agreements pursuant to which Borrower licenses any Intellectual Property Rights, together with a summary of key assumptions utilized by management in the preparation of such projectionsconsent to assignment to Bank or its nominee from each licensor thereof. (ldd) The Securities Account Pledge Agreement, properly executed on behalf of the Co-BorrowersSuch other documents as Bank may reasonably require. (m) Holding Company Subordination Agreement. (n) A signed copy of an opinion of counsel for each Credit Party addressed to the Bank. (o) Availability of at least three million dollars ($3,000,000) under the Revolving Commitment at Closing. (p) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 and 8.4 hereof.

Conditions Precedent to the Initial Advance. The obligation of the Bank Revolving Credit Banks to fund make the initial Advances or issue any Letter of Credit is subject to initial (1) the condition precedent that Administrative Agent and the Bank Syndication Agent shall have received on or before the day on which such Advance, Term Loan, disbursement or issuance is to be made, all of the following, each in form and substance satisfactory to the BankAgents (which term, for purposes of this Article III only, shall mean the Administrative Agent and the Syndication Agent) and their counsel: (a) The NoteA copy, properly executed on behalf certified in writing by the Secretary or an Assistant Secretary of each Credit Party, of (1) resolutions of the Co-BorrowersBoard of Directors of such Credit Party evidencing approval of the Transaction Documents to which it is a party and other matters contemplated hereby and (2) each document evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the other Transaction Documents and other matters contemplated hereby. (b) The Guaranties, properly executed on behalf of A written certificate dated the appropriate Guarantor. (c) The Security Documents (other than the Mortgages), properly executed on behalf of the appropriate Credit Party, together with: (i) financing statements with respect to each Credit Party to be filed in all jurisdictions which, in the opinion of the Bank, are reasonably necessary to perfect the security interests created Initial Funding Date by the Security Documents, to the extent such security interests can be perfected by filing; and (ii) current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have been filed and remain in effect against any Credit Party, and that no financing statements or other notifications or filings have been filed and remain in effect against any Credit Party, other than those for which the Bank has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (d) Evidence of all insurance required by the terms of any Loan Document, together with appropriate certificates and loss payable endorsements showing the Bank as additional insured and loss payee thereunder. (e) Evidence that all actions which, in the opinion of the Bank, are reasonably necessary to perfect and protect the security interests created by the Security Documents have been taken. (f) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified by the Secretary or Assistant Secretary of such Credit Party as being true and correct copies thereof. (g) A certificate of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (h) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify as to the names and signatures of the officers of such Credit Party authorized to sign the Loan Transaction Documents to which such Credit Party it is a party and the other documents or certificates to be delivered pursuant to this Agreement, including (as to the Co-Borrowers) requests for Advances and Eurodollar Fundings, together with the true signatures of such officersparty. The Bank Agents may conclusively rely on such certificates certificate until it shall receive a further certificate by the Secretary or an Assistant Secretary of such Credit Party amending such prior certificate. (c) A written certificate dated the Initial Funding Date by a duly authorized officer of each Borrower stating (i) that the representations and warranties in Article IV are true and correct in all material respects on such date as though made on and as of such date, (ii) that no event has occurred and is continuing which constitutes an Incipient Default or an Event of Default, (iii) that no facts, events or circumstances have arisen after September 28, 1999 that constitute a material adverse change in the business, assets, liabilities, financial condition or results of SLC, ITI and their respective Subsidiaries taken as a whole as measured by the same at December 31, 1998, (iv) that there have not after September 28, 1999 been any actions, suits or proceedings filed or, to the knowledge of the Company, threatened against or affecting the SLC, ITI or any of their Subsidiaries or any of their properties before any court, governmental agency, department, commission, board, bureau or instrumentality (domestic or foreign) or arbitration (A) which contests the Merger, this Agreement or the credit facilities provided hereunder or any other aspect of the Transactions or (B) which could reasonably be expected to have a Material Adverse Effect as measured by the condition of SLC, ITI and their Subsidiaries taken as a whole on December 31, 1998, (v) the (d) A written certificate dated the Initial Funding Date by a duly authorized officer of each Borrower stating that prior to and after giving effect to the transactions contemplated herein, each Borrower is and will continue to be Solvent. (e) Certificates, as of a recent date, of the Secretary of an Assistant Secretary State or comparable official of a the jurisdiction of incorporation of each Credit Party canceling and the department of revenue or amending taxation of such jurisdiction as to the prior certificate good standing of such Credit Party and submitting the signatures absence of tax delinquencies or tax liens on such date. (f) Favorable opinion of outside counsel (including local or foreign counsel) for the officers named Credit Parties, in form, scope and substance satisfactory to the Agents. (g) This Agreement executed by the Borrowers. (h) The Notes duly executed by the Borrowers in favor of each Term Loan Bank and Revolving Credit Bank, if any, as shall have requested such further certificateNotes. (i) A Borrowing Base Certificate as The Company Pledge Agreement duly executed by the Company, together with the certificates evidencing all of a date not more than ten (10) days prior to the Closing Dateshares of securities pledged thereunder accompanied by undated stock powers duly executed in blank. (j) Collateral audit reports in all respects satisfactory to The Domestic Subsidiary Guaranty duly executed by the BankDomestic Guarantors. (k) The following financial information: (i) audited financial statements for the period ednded December 31, 2002 for the Consolidated Group (as of such date), (ii) interim financial statements of the Consolidated Group for the period from December 31, 2002 through July 31, 2003; and (iii) a business plan for the Co-Borrowers’ 2003 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for Subsidiary Pledge Agreement duly executed by each year thereafter through the Co-Borrowers’ fiscal year end, 2006Domestic Subsidiary, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management certificates evidencing all of the Co-Borrowers, together with a summary shares of key assumptions utilized securities pledged thereunder accompanied by management undated stock powers duly executed in the preparation of such projectionsblank. (l) The Securities Account Pledge Agreement, properly executed on behalf Evidence of the Co-Borrowersinsurance required by SECTION 6.5. (m) Holding Company Subordination AgreementCopies of the financial information mentioned in SECTION 4.5. (n) A signed copy pro-forma opening consolidated balance sheet of an opinion the Company and its Subsidiaries as of counsel for each Credit Party addressed the last day of the month prior to the Bank.Initial Funding Date for which financial statements are available (but not more than two months prior to the Initial Funding Date, after giving effect to the Merger and reflecting the existing and proposed legal and capital structure (o) Availability Financing statement searches and such other evidence as the Agents reasonably deem necessary to show that the Company and each of at least three million dollars ($3,000,000) under the Revolving Commitment at ClosingDomestic Borrowers has good, marketable and unencumbered title to its assets, free and clear of any Liens except for Permitted Liens. (p) Payment of all fees and expenses then due on or prior to the Initial Funding Date. (q) Such additional documents, certificates and payable information as the Agents may require pursuant to Sections 2.12 the terms hereof or as the Agents may otherwise reasonably request. (2) The Agents shall have reviewed and 8.4 hereofbe satisfied with (i) the final structure of the Transactions (it being understood that the structure contemplated by the Merger Agreement is satisfactory) and (ii) the terms and provisions of all documents, agreements and contracts related to the Transactions (it being understood that the documents, agreements and contracts attached as exhibits to the Merger Agreement are satisfactory). (3) All governmental (including Internal Revenue Service) and third party approvals and rulings (or modifications of rulings) necessary in connection with the Transaction, the financing contemplated by this Agreement and the continuing operations of the Company and its Subsidiaries, after giving effect to the Merger, shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Transaction or the financing thereof. (4) The Transactions (including the Merger and the Refinancing) shall have been consummated on the terms set forth in the Merger Agreement documents, such that the Loans and Advances under this Credit Agreement on the Initial Funding Date immediately following such consummation does not exceed the lesser of $275,000,000 and an amount equal to three times the Combined EBITDA of SLC, its Subsidiaries, ITI and its Subsidiaries for the twelve month period ending on the last day of the fiscal quarter ending prior to the Initial Funding Date. (5) ITI shall have expressly assumed pursuant to an assumption agreement in form, scope and substance satisfactory to the Agents and their counsel its obligations under this Agreement and each other Transaction Document to which the Company is a party. (6) The Company, after giving effect to the Merger, shall have repaid all outstanding Total Debt (except for Total Debt (7) The Initial Funding Date shall have occurred on or before May 31, 2000. (8) All action requested by the Administrative Agent shall have been taken in order for the security interest intended to be created by the Company Pledge Agreement to constitute a first priority, perfected security interest to secure the Obligations.

Conditions Precedent to the Initial Advance. The obligation of the Bank Lender to fund make the initial Advances Advance under the Credit Facility or to issue any or to cause the Issuer to issue the initial Letter of Credit is shall be subject to the condition precedent that the Bank Lender shall have received all of the following, each in form and substance satisfactory to the BankLender: (a) This Agreement, properly executed on behalf of the Borrower. (b) The Note, properly executed on behalf of the Co-Borrowers. (b) The Guaranties, properly executed on behalf of the appropriate GuarantorBorrower. (c) The Security Documents (other than A true and correct copy of any and all leases pursuant to which the Mortgages), properly executed on behalf of Borrower is leasing the appropriate Credit PartyPremises, together with: (i) financing statements with a landlord's disclaimer and consent with respect to each Credit Party such lease. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to be filed in all jurisdictions whichthe Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the opinion name of and under the sole and exclusive control of the BankLender, are reasonably necessary from which such institution agrees to perfect transfer finally collected funds to the security interests created Lender for application to the Advances. (e) A Lockbox Agreement, duly executed by the Security Documents, Borrower and an institution acceptable to the extent Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such security interests can be perfected by filing; andinstitution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account. (iif) current Current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that (i) no state or federal tax liens have been filed and remain in effect against any Credit Partythe Borrower, and that (ii) no financing statements or other notifications or filings have been filed and remain in effect against any Credit Partythe Borrower, other than except those for which the Bank has received an appropriate release, termination or satisfaction or financing statements relating to liens permitted pursuant to Section 7.1 hereof and those permitted in accordance with Section 6.1. (d) Evidence of all insurance required financing statements filed by the terms of any Loan DocumentLender, together with appropriate certificates and loss payable endorsements showing (iii) the Bank as additional insured and loss payee thereunder. (e) Evidence that Lender has duly filed all actions which, in the opinion of the Bank, are reasonably financing statements necessary to perfect and protect the security interests created by the Security Documents have been taken. (f) Copies Interests granted hereunder, to the extent the Security Interests are capable of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified being perfected by the Secretary or Assistant Secretary of such Credit Party as being true and correct copies thereoffiling. (g) A certificate of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (h) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify the names Borrower, certifying as to (i) the resolutions of the officers directors and, if required, the shareholders of such Credit Party authorized to sign the Loan Documents to which such Credit Party is a party Borrower, authorizing the execution, delivery and performance of this Agreement and the other documents or certificates to be delivered pursuant to this AgreementSecurity Documents, including (as to ii) the Co-Borrowers) requests for Advances articles of incorporation and Eurodollar Fundings, together with the true signatures of such officers. The Bank may conclusively rely on such certificates until it shall receive a further certificate bylaws of the Secretary of an Assistant Secretary of a Credit Party canceling or amending the prior certificate Borrower, and submitting (iii) the signatures of the officers named or agents of the Borrower authorized to execute and deliver this Agreement, the Security Documents and other instruments, agreements and certificates, including Advance requests, on behalf of the Borrower. (h) A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, certifying that the Borrower is in compliance with all corporate organizational requirements of such further certificatestate. (i) A Borrowing Base Certificate as Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of a date not more than ten (10) days prior to the Closing Dateproperty owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. (j) Collateral audit reports in all respects satisfactory An opinion of counsel to the BankBorrower, addressed to the Lender. (k) The following financial information: (i) audited financial statements for the period ednded December 31, 2002 for the Consolidated Group (as of such date), (ii) interim financial statements of the Consolidated Group for the period from December 31, 2002 through July 31, 2003; Support Agreements duly executed by Xxxxxxx X. Xxxxx and (iii) a business plan for the Co-Borrowers’ 2003 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ fiscal year end, 2006, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management of the Co-Borrowers, together with a summary of key assumptions utilized by management in the preparation of such projections. (l) The Securities Account Pledge Agreement, properly executed on behalf of the Co-Borrowers. (m) Holding Company Subordination Agreement. (n) A signed copy of an opinion of counsel for each Credit Party addressed to the Bank. (o) Availability of at least three million dollars ($3,000,000) under the Revolving Commitment at Closing. (p) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 and 8.4 hereof.Xxxxxx X.

Conditions Precedent to the Initial Advance. The Bank’s obligation of the Bank to fund the initial Advances make a Loan or issue any a Letter of Credit is on the date of the initial Advance hereunder shall be subject to the condition precedent that the Bank shall have received all of the following, each in form and substance satisfactory to the Bank: (a) The NoteThis Agreement, properly executed on behalf of by the Co-BorrowersBorrower. (b) The GuarantiesNote, properly executed on behalf of by the appropriate GuarantorBorrower. (c) The Security Documents (other than the Mortgages)Loan Documents, properly executed on behalf by the parties thereto. (d) Stock certificates for all shares of stock pledged to the Bank pursuant to all Pledge Agreements, together with blank stock powers; (e) As of the appropriate Credit Partydate of the initial Advance, together with: the lesser of (i) financing statements with respect to each Credit Party to be filed in all jurisdictions which, in the opinion of the Bank, are reasonably necessary to perfect the security interests created by the Security Documents, to the extent such security interests can be perfected by filing; and Borrowing Base or (ii) current the Commitment shall be at least $5,000,000 greater than the outstanding principal balance of the Advances plus the Letter of Credit Obligations. (f) An initial Borrowing Base Certificate, duly completed by the Borrower as of August 31, 2011. (g) A Compliance Certificate, duly completed by the Borrower for the June 30, 2011 Measurement Date, on a proforma basis. (h) Current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower or any Credit PartyGuarantor, and that (ii) no financing statements or other notifications assignments of patents, trademarks or filings copyrights have been filed and remain in effect against the Borrower or any Credit PartyGuarantor, other than except those for which financing statements and assignments of patents, trademarks or copyrights relating to Permitted Liens or to Liens held by Persons who have agreed in writing that upon receipt of proceeds of the Note, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Bank, and (iii) the Bank has received an appropriate releaseduly filed all financing statements necessary to perfect the Security Interest, termination or satisfaction or those permitted in accordance with Section 6.1and the security interest granted by each Guarantor, to the extent the Security Interest and the security interest granted by each Guarantor is capable of being perfected by filing. (di) Evidence A certificate of all insurance required by the terms Borrower’s Secretary or Assistant Secretary certifying as to (i) the resolutions of any the Borrower’s directors, and if required, shareholders, authorizing the execution, delivery and performance of the Loan DocumentDocuments, together with appropriate certificates (ii) the Borrower’s organizational documents, and loss payable endorsements showing (iii) the Bank as additional insured signatures of the Borrower’s officers, managers or agents authorized to execute and loss payee thereunderdeliver the Loan Documents, and other instruments, agreements and certificates, including Advance requests, on the Borrower’s behalf. (ej) Evidence that all actions which, in the opinion A certificate of the Bank, are reasonably necessary to perfect and protect the security interests created by the Security Documents have been taken. (f) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified by the Secretary or Assistant Secretary of such Credit Party each Guarantor certifying as being true and correct copies thereof. to (gi) A certificate of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (h) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify the names of the officers resolutions of such Credit Party authorized to sign Guarantor’s directors or governors, as the case may be, and, if required, shareholders or members, as the case may be, authorizing the execution, delivery and performance of the Loan Documents to which be executed by such Credit Party is a party and Guarantor, (ii) the other documents Guarantor’s articles of incorporation or certificates to be delivered pursuant to this Agreementorganization, including (as to the Co-Borrowers) requests for Advances and Eurodollar Fundings, together with the true signatures of such officers. The Bank may conclusively rely on such certificates until it shall receive a further or certificate of formation, as the Secretary of an Assistant Secretary of a Credit Party canceling case may be, and bylaws, operating agreements or amending limited liability company agreement, as the prior certificate case may be, and submitting (iii) the signatures of the officers named in Guarantor’s officers, managers or agents authorized to execute and deliver the Loan Documents to be executed by such further certificate. (i) A Borrowing Base Certificate as of a date not more than ten (10) days prior to the Closing Date. (j) Collateral audit reports in all respects satisfactory to the Bank.Guarantor, and other instruments, agreements and certificates on such Guarantor’s behalf (k) The following financial information: Current certificates of good standing issued by the Secretaries of State of Delaware and Minnesota (iand with respect to the Borrower only, California, Florida and Ohio) audited financial statements for certifying that the period ednded December 31, 2002 for the Consolidated Group (as Borrower and each Guarantor is qualified to do business in and is in compliance with all applicable organizational and/or registration requirements of such date), (ii) interim financial statements of the Consolidated Group for the period from December 31, 2002 through July 31, 2003; and (iii) a business plan for the Co-Borrowers’ 2003 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ fiscal year end, 2006, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management of the Co-Borrowers, together with a summary of key assumptions utilized by management in the preparation of such projectionsstate. (l) The Securities Account Pledge Agreement, properly executed on behalf of the Co-Borrowers. (m) Holding Company Subordination Agreement. (n) A signed copy of an opinion of counsel for each Credit Party addressed disbursement form in form and substance satisfactory to the BankBank with respect to any disbursements to be made by the Bank at closing. (o) Availability of at least three million dollars ($3,000,000) under the Revolving Commitment at Closing. (p) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 and 8.4 hereof.

Conditions Precedent to the Initial Advance. The obligation of the Bank Lender to fund make the initial Advances or issue any Letter of Credit Advance is subject to the condition precedent that the Bank Lender shall have received on or before the day of this Agreement all of the following, each in form and substance reasonably satisfactory to the BankLender: (a) The Revolving Note, properly executed on behalf of the Co-BorrowersBorrower and given in renewal and replacement of, and not in substitution or satisfaction of, that certain revolving note executed by the Borrower in favor of the Lender dated January 30, 1998. (b) The GuarantiesSecurity Agreement, properly executed on behalf of the appropriate GuarantorBorrower. (c) The Security Documents (other than the Mortgages), properly executed on behalf of the appropriate Credit Party, together with: (i) Financing statements and fixture financing statements with respect to each Credit Party to be sufficient when filed in all jurisdictions which, in the opinion of the Bank, are reasonably necessary to perfect the security interests created by Security Interest granted to the Lender under the Security Documents, Agreement to the extent such security interests can be Security Interest is capable of being perfected by filing; and. (iid) current Current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that (i) no state or federal tax liens have been filed and remain in effect against any Credit Party, the Borrower and that (ii) no financing statements or other notifications or filings fixture financing statements have been filed and remain in effect against any Credit Party, other than those for which the Bank has received an appropriate release, termination or satisfaction or those Collateral except financing statements and fixture financing statements perfecting only security interests permitted in accordance with under Section 6.1. (d) Evidence of all insurance required by the terms of any Loan Document, together with appropriate certificates and loss payable endorsements showing the Bank as additional insured and loss payee thereunder6.01. (e) Evidence that all actions which, in the opinion A certified copy of the Bank, are reasonably necessary to perfect resolutions of the Board of Directors of the Borrower evidencing approval of the Loan Documents and protect the security interests created by the Security Documents have been takenother matters contemplated hereby. (f) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Partythe Borrower, certified by the Secretary or Assistant Secretary of such Credit Party the Borrower as being true and correct copies thereof. (g) A certificate of good standing for each Credit Partyof the Borrower from the Secretary of State of Minnesota, North Dakota, South Dakota and Nebraska, dated not more than thirty (30) ten days prior to the date hereof, and evidence satisfactory to the Bank that each Credit Party is qualified to conduct its business in each state where it presently conducts before such business if failure to obtain any such qualification or licensing would have a Material Adverse Effectdate. (h) A signed copy of a an opinion of counsel for the Borrower addressed to the Lender and reasonably acceptable to the Lender's counsel. (i) A signed copy of certificate of the Secretary or an Assistant Secretary of each Credit Party the Borrower which shall certify the names of the officers of such Credit Party the Borrower authorized to sign the Loan Documents to which such Credit Party is a party and the other documents or certificates to be delivered pursuant to this Agreement, including (as Agreement by the Borrower and the names of the officers or other employees authorized to request Advances under Section 2.01 and to sign certificates on behalf of the Co-Borrowers) requests for Advances and Eurodollar Fundings, together with the true signatures of such officersBorrower. The Bank Lender may conclusively rely on such certificates certificate until it shall receive a further certificate of the Secretary of an or Assistant Secretary of a Credit Party the Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (ij) A Borrowing Base Certificate as certificate of a date not more than ten (10) days prior to the Closing Date. (j) Collateral audit reports insurance required under the Security Agreement in all respects form and substance satisfactory to the BankLender in its sole discretion, naming the Lender as loss payee. (k) The following financial information: (i) audited financial statements for the period ednded December 31, 2002 for the Consolidated Group (as of such date), (ii) interim financial statements of the Consolidated Group for the period from December 31, 2002 through July 31, 2003; and (iii) a business plan for the Co-Borrowers’ 2003 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ fiscal year end, 2006, together with financial projections for the period commencing December 31, 2002, and ending on January 1, 2007, prepared by management of the Co-Borrowers, together with a summary of key assumptions utilized by management in the preparation of such projectionsIntentionally deleted. (l) The Securities Account Pledge Agreement, properly executed on behalf of the Co-BorrowersIntentionally deleted. (m) Holding Company Subordination AgreementIntentionally deleted. (n) A signed copy of an opinion of counsel for each Credit Party addressed to the BankIntentionally deleted. (o) Availability of at least three million dollars ($3,000,000) under the Revolving Commitment at ClosingIntentionally deleted. (p) Payment of all fees Intentionally deleted. (q) Such other documents and expenses then due and payable pursuant to Sections 2.12 and 8.4 hereofinformation as the Lender may reasonably request.

Conditions Precedent to the Initial Advance. The obligation of the Bank Banks to fund the initial Advances or issue any Letter of Credit is subject to the condition precedent that the Bank Agent shall have received the following, each in form and substance satisfactory to the BankRequired Banks: (a) The NoteNotes, properly executed on behalf of the Co-BorrowersBorrower. (b) The Guaranties, properly executed on behalf of the appropriate Guarantor. (c) The Security Documents (other than the Mortgages)Documents, properly executed on behalf of the appropriate Credit Party, together with: (i) financing statements with respect to each Credit Party to be filed in all jurisdictions which, in the opinion of the BankAgent, are reasonably necessary to perfect the security interests created by the Security Documents, to the extent such security interests can be perfected by filing; and (ii) current searches of appropriate filing offices in each state (and county, to the extent relevant) in which a Credit Party has an office or otherwise conducts business (including, without limitation, patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have been filed and remain in effect against any Credit Party, and that no financing statements or other notifications or filings have been filed and remain in effect against any Credit Party, other than those for which the Bank Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (d) Evidence of all insurance required by the terms of any Loan Document, together with appropriate certificates and loss payable endorsements showing the Bank Agent as additional insured and loss payee thereunder. (e) A certified copy of the executed Indenture, certified by an appropriate officer of the Borrower. (f) Evidence that all actions which, in the opinion of the BankAgent, are reasonably necessary to perfect and protect the security interests created by the Security Documents have been taken. (fg) Copies of the Articles of Incorporation and Bylaws (or other comparable organizational documents) of each Credit Party, certified by the Secretary or Assistant Secretary of such Credit Party as being true and correct copies thereof. (gh) A certificate of good standing for each Credit Party, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Bank Agent that each Credit Party is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (hi) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Credit Party which shall certify the names of the officers of such Credit Party authorized to sign the Loan Documents to which such Credit Party is a party and the other documents or certificates to be delivered pursuant to this Agreement, including (as to the Co-BorrowersBorrower) requests for Advances and Eurodollar Fundings, together with the true signatures of such officers. The Agent and each Bank may conclusively rely on such certificates until it they shall receive a further certificate of the Secretary of an Assistant Secretary of a Credit Party canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (ij) A Borrowing Base Certificate as of a date not more than ten (10) days prior to the Closing Date. (jk) Collateral audit reports in all respects satisfactory to the BankAgent. (kl) The following financial information: (i) audited financial statements for the period ednded ended December 3130, 2002 2001 for the Consolidated Group (as of such date), (ii) interim financial statements of the Consolidated Group for the period from December 3130, 2002 2001 through and including July 3114, 20032002; and (iii) a business plan for the Co-Borrowers’ 2003 Borrower's 2002 fiscal year, including a written analysis of the business and prospects for the Consolidated Group for such year and for each year thereafter through the Co-Borrowers’ Borrower's fiscal year end, 20062005, together with financial projections for the period commencing December 31, 20022001, and ending on January 1, 20072006, prepared by management of the Co-BorrowersBorrower, together with a summary of key assumptions utilized by management in the preparation of such projections. (lm) The Securities Account Pledge Agreement, properly executed on behalf Documentation acceptable to the Banks demonstrating that the Obligations qualify as "Senior Debt" for all purposes of the Co-Borrowers. (m) Holding Company Subordination AgreementIndenture. (n) A signed copy of an opinion of counsel for each Credit Party addressed to the BankAgent on behalf of the Banks. (o) Availability The Fee Letter and the Supplemental Fee Letter, each executed on behalf of at least three million dollars ($3,000,000) under the Revolving Commitment at ClosingBorrower. (p) An ISDA Master Agreement with all appropriate Schedules and Confirmations (as each term is defined in such ISDA Master Agreement) with respect to the Permitted Rate Hedging Arrangements, executed on behalf of the Borrower. (q) Payment of all fees and expenses then due and payable pursuant to Sections 2.12 2.13 and 8.4 9.4 hereof.