Common use of Conditions Precedent to the Initial Extension of Credit Clause in Contracts

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in Lender (the making of such initial extension of credit by Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20June 29, 20092004; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorBorrower, together with authorizing the filing of appropriate financing statements on Form UCC-1in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender's Liens in and to the Collateral; (c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Intellectual Property Security Agreement, (ii) the Fee Letter;Intercompany Subordination Agreement, (iii) the Officers’ Certificate;Intercreditor Agreement, (iv) the Intellectual Property Security Agreements;Mortgages, (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries;, and termination statements and other documentation evidencing the termination by the applicable trustee on behalf of the holders of the 8% Senior Notes of the Liens in and to the properties and assets of Borrower and its Subsidiaries, and (vi) the Stock Pledge Agreements, together with (i) all original certificates representing the shares of Stock pledged thereunder regarding the U.S. Subsidiaries, as well as Stock powers with respect thereto endorsed in blank shall be delivered to the Collateral Agent, and (ii) the original certificates representing the shares of Stock pledged thereunder regarding the first-tier Foreign Subsidiaries of the Borrower (other than Viskase Brasil Embalagens Ltda., which Stock is not certificated), as well as Stock powers with respect thereto endorsed in blank, but with respect to only 65% of the issued and outstanding Stock of each of such first-tier Foreign Subsidiaries shall be delivered to the Collateral Agent. (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and party, (ii) authorizing specific officers of such Credit Party Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower; (e) Agent Lender shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would could not reasonably be expected to constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be reasonably satisfactory to Agent in its Permitted DiscretionLender; (i) Agent Lender shall have received Collateral Access Agreements with respect to the following locations: (i) 0000 Xxxx X.X. Xxxxxxx 00, Xxxxxxxxx, Xxxxxxx, (ii) 000 Xxxx Xxxxx Xxxxxxx 000, Xxxxxxx, Xxxxxxxx and (iii) 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, and in the event Lender shall not have received any Collateral Access Agreement, then the Lender shall forthwith establish the Rent Reserve with respect to such leased location in accordance with this Agreement; (j) Lender shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender; (jk) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all federal and state income and all other material tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all federal and state income and all other material taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (km) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's and its Subsidiaries' books and records and verification of Borrower's representations and warranties to Lender, the results of which shall be reasonably satisfactory to Lender, and (ii) an inspection of each of the locations where Borrower's Inventory is located, the results of which shall be reasonably satisfactory to Lender; (n) Lender shall have received completed reference checks with respect to Borrower's senior management, the results of which are reasonably satisfactory to Lender in its sole discretion; (o) Lender shall have received an appraisal of the Net Liquidation Percentage applicable to Borrower's Inventory, and if available, a copy of any recent appraisal of the Equipment; (p) Lender shall have received Borrower’s 's Closing Date Business PlanPlan and April 30, 2004 internally prepared financial statements, the results of which are reasonably satisfactory to Lender; (lq) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement and the Lender shall have delivered to the Borrower any invoices, to the extent any exist, with respect to the Lender Expenses; (mr) Each Credit Party Lender shall have received (i) if available, a copy of any appraisal of the Real Property Collateral, (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company reasonably satisfactory to Lender (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts reasonably satisfactory to Lender assuring Lender that the Mortgages on such Real Property Collateral are valid and enforceable second priority mortgage Liens (subject to the first priority mortgage Lien in favor of the Trustee) on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Lender, and (iii) if available, the most recent survey with respect to each parcel composing the Real Property Collateral; (s) If available, Lender shall have received a copy of a phase-I environmental report with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be reasonably acceptable to Lender; (t) Lender shall have received copies of each of the material agreements of the Borrower, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (u) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord , except any license, approval or bailee of any distribution center of action the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results failure of which shall to receive could not reasonably be reasonably satisfactory expected to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agentconstitute a Material Adverse Change; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20May 31, 20092002; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate all financing statements on Form UCC-1required by Agent and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Collateral Assignments of Key Leases, together with an appropriate consent to hypothecation from the lessor under the relevant Key Lease (to the extent any such consent is required thereby), with respect to the Key Leases of each of the Mature Stations, (iii) the Officers’ Certificate;Collateral Assignments of Tower Leases, together with an appropriate consent to hypothecation from the lessor under the relevant Tower Lease (to the extent any such consent is required thereby), with respect to the Tower Leases of each of the Mature Stations, (iv) the Intellectual Property Security Agreements;Control Agreements required to comply with the provisions of this Agreement, (v) originals of the Pledged Equity and Pledged Notes;Disbursement Letter, (vi) the Perfection Certificate; andDue Diligence Letter, (vii) the Fee Letter, (viii) the Guarantor Security Agreement, (ix) the Guaranty, (x) the Intercompany Subordination Agreement, (xi) the Mortgages, (xii) the Officers' Certificate, (xiii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender Group of its Liens in and to the properties and assets of Borrower and its Subsidiariesthe Obligors, and (xiv) the Pledge Agreement, together with all certificates representing the certificated shares of Stock pledged thereunder, as well as Stock powers with respect to such certificated shares endorsed in blank; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gk) Agent shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (hl) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (im) Borrower shall have used its reasonable best efforts to obtain and deliver to Agent a Collateral Access Agreement with respect to its headquarters location; (n) Agent shall have received (i) an opinion of counsel, including certain local Borrower's and Guarantors' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent Agent, and (ii) an opinion of Borrower's and Guarantors' special communications counsel in its Permitted Discretionform and substance satisfactory to Agent; (jo) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower, its Subsidiaries, or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due datecredit, held checks and overdrafts)if any, hereunder; (kq) Agent shall have received Borrower’s 's Closing Date Business Plan; (lr) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (ms) Each Credit Party Agent shall have received mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens or defects and encumbrances that do not materially reduce the value of such Real Property Collateral, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; (t) Agent shall have received copies of each LMA, each Key Lease, each Tower Lease, and each Affiliation Agreement, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; and (u) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation effectiveness of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder), this Agreement is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion(including any Third Party Agent) and each Lender, of each of the following conditions precedent set forth belowprecedent: (a) a Third Party Agent Retention Period shall exist with Cortland as the Closing Date shall occur on or before February 20, 2009Third Party Agent; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 duly filed (or to be filed) in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent’s Liens in and to the Collateral; (c) Agent (including any Third Party Agent) and the Lenders shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion(including any Third Party Agent) and the Lenders, duly executedexecuted and delivered, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Fee Lettera completed Borrowing Base Certificate (Third Party Agent) dated as of July 31, 2018; (iii) the Officers’ CertificateControl Agreements required by Agent or the Lenders to be delivered on the Closing Date; (iv) the Intellectual Property Security AgreementsNotes; (v) originals of the Pledged Equity Guaranty and Pledged NotesSecurity Agreement; (vi) the Intercompany Subordination Agreement; (vii) a Perfection Certificate; (viii) the Copyright Security Agreement; (ix) the Patent Security Agreement; (x) the Intercreditor Agreement; and (viixi) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesTrademark Security Agreement; (d) Agent shall have received a certificate from the Secretary an Authorized Officer of each Credit Party Loan Party: (i) attesting to the resolutions of such Credit Loan Party’s Board board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party it is a party and party, (ii) authorizing specific officers of such Credit Loan Party to execute the same;, attesting to the incumbency and signatures of such specific officers of such Loan Party, (eiii) Agent shall have received attesting to copies of each Credit Loan Party’s Governing Organizational Documents, as amended, modified, or supplemented as of to the Closing Date, which Organizational Documents shall be (A) certified by the respective Secretary an Authorized Officer of such Credit Loan Party;, and (B) with respect to Organizational Documents that are charter documents, certified as of a recent date (not more than thirty (30) days prior to the Closing Date) by the appropriate governmental official, (fiv) Agent shall have received a recent certificate attesting to certificates of status with respect to each Credit Loan Party, dated within ten (10) days of the Closing Date, such certificate certificates to be issued by the appropriate officer of the jurisdiction of organization of such Credit Loan Party, which certificate certificates shall indicate that such Credit Loan Party is in good standing in such jurisdiction;, and (gv) Agent shall have received recent attesting to certificates of status with respect to each Credit Loan Party, each dated within thirty (30) days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Loan Party) in which its such Loan Party’s failure to be duly qualified or licensed would constitute a Material Adverse ChangeEffect, which certificates shall indicate that such Credit Loan Party is in good standing in such jurisdictions; (e) after giving effect to any Loans funded on the Closing Date, the payment of all fees, costs and expenses required to be paid by Borrowers, Excess Availability plus Qualified Cash shall be greater than or equal to $22,500,000; (f) since December 31, 2017, there shall not have occurred a Material Adverse Effect; (g) [reserved]; (h) Agent and the Lenders shall have received all requested Collateral Access Agreements in favor of Agent, from all mortgagees, landlords and operators of warehouses in which a Loan Party operates or maintains any Collateral; provided that any locations not subject to such Collateral Access Agreements shall be subject to a Landlord Reserve at Agent’s (including, during any Third Party Agent Retention Period, the Third Party Agent’s) Permitted Discretion; (i) Agent and the Lenders shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.75.03, the form and substance of which shall be satisfactory to Agent in its Permitted Discretionand the Lenders; (ij) Agent and the Lenders shall have received an opinion of counsel, including certain local the Loan Parties’ counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Lenders; (k) Agent (including any Third Party Agent) and the Lenders shall have received Borrower’s Closing Date Business Plancompleted its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers’ and their Subsidiaries books and records and verification of Borrowers’ representations and warranties to Agent (including any Third Party Agent) and the Lenders, the results of which shall be satisfactory to Agent (including any Third Party Agent) and the Lenders, (ii) an inspection of each of the locations where the Loan Parties’ and their Subsidiaries’ Inventory and Equipment is located, the results of which shall be satisfactory to Agent (including any Third Party Agent) and the Lenders, (iii) satisfactory review by Agent (including any Third Party Agent) and the Lenders of all contracts with Federal, state, municipal and governmental agencies, and (iv) a review of the Loan Parties’ and their Subsidiaries’ insurance, which shall in each case be satisfactory to Agent and the Lenders; (l) Borrower Agent (including any Third Party Agent) and the Lenders shall have received completed reference and background checks with respect to Borrowers’ senior management, the results of which are satisfactory to Agent (including any Third Party Agent) and the Lenders in Agent’s (including any Third Party Agent’s) and each Lender’s sole discretion; (m) Agent (including any Third Party Agent) and the Lenders shall have received an audit of Eligible Accounts, and an appraisal of the Eligible Inventory (and, if requested by Agent (or any Third Party Agent), Eligible Equipment), in each case the results of which shall be satisfactory to Agent (including any Third Party Agent) and the Lenders; (n) Borrowers shall have paid in cash all documented Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement or any other Loan Documents and paid all fees in cash required to be paid in accordance with the terms of this Agreement and the other Loan Documents; (mo) Each Credit Party Borrowers and each of their Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers or their Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (np) Agent and the Lenders shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties Term Debt Documents, in form and of any landlord or bailee with respect substance reasonably satisfactory to real property located in Agent and the states of Pennsylvania, Washington, West Virginia or TexasLenders; (oq) Agent shall have completed its business, legal, the final corporate and collateral due diligence, including (i) a commercial finance exam capital structure of Borrowers and review of Borrower’s and its their Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent (including any Third Party Agent) and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLenders; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement or any other Loan Document shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretionand the Lenders.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder)Loans, is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionLender, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20October 24, 20092014; (b) Agent Lender shall have filed all financing statements and recorded, filed and registered such other documents necessary for Lender to perfect Lender’s Lien in the Collateral and shall have received a UCC Filing Authorization Letterconfirmation of such filings, duly executed by Borrower recordings and each Guarantor, together with appropriate financing statements on Form UCC-1registrations; (c) Agent Lender shall have received this Agreement and each of the following documentsFinancing Documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals , and no Default or Event of Default shall exist as of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender execution of its Liens in and to the properties and assets of Borrower and its Subsidiariessuch documents; (d) Agent Lender shall have received the Closing Fee; (e) Lender shall have received a certificate from the Secretary of each Credit Party Borrower attesting to (i) the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; Financing Documents, (eii) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as Documents and (iii) incumbency of the Closing Date, certified by the respective Secretary of such Credit Partyofficers; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates the Budget, together with a combined balance sheet of status with respect to each Credit PartyBorrower, such certificates to be issued by the appropriate officer effective as of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictionsClosing Date; (h) Agent Lender shall have received a certificate such opinion of Borrower’s counsel as Lender may reasonably request; (i) Borrower shall have received all licenses, approvals, consents or evidence of other actions required by any Person in connection with the execution and delivery by Borrower of this Agreement or any other Financing Document or with the consummation of the transactions contemplated hereby and thereby; (j) Lender shall have received one or more certificates of insurance, together with the endorsements thereto, as are required by Section 6.76.08, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Lender; (k) Agent No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect shall have received be pending or threatened against Borrower’s Closing Date Business Plan; (l) Lender shall have completed its business, legal, and collateral due diligence, the results of which shall be satisfactory to Lender in its sole discretion; (m) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas;[Intentionally Omitted.] (o) Agent Lender shall have completed its businessreceived duly executed copies of guaranties from each Guarantor, legalalong with a pledge of securities from such Guarantor, in form and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably substance satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to AgentLender; (p) Borrower Lender shall have received prior to duly executed copies of the Closing Date a cash equity investment on terms reasonably SVB Loan Documents, the Subordination Agreement and Intercreditor Agreement, each in form and substance satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries;Lender; and (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in Lender (the making of such initial extension of credit by Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20June 30, 20092004; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1to be duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral; (c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Control Agreements, (iii) the Officers’ Certificate;Disbursement Letter, (iv) the Intellectual Property Security Agreements;Fee Letter, (v) originals of the Pledged Equity and Pledged Notes;Patent Security Agreement, (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries, (vii) the Trademark Security Agreement, and (viii) evidence satisfactory to the Lender that the Tulin Note has been amended to provide for an extension of the original maturity date thereof (the “Original Maturity Date”) to a date which is not prior to six months after the Maturity Date to the extent the Borrower is unable to satisfy the Availability criteria set forth in Section 7.7(b)(ii) hereof; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and party, (ii) authorizing specific officers of such Credit Party Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower; (e) Agent Lender shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is validly subsisting and/or in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLender; (i) Agent Lender shall have received Collateral Access Agreements with respect to the following locations: Borrower’s offices in Taunton, Massachusetts; Borrower’s retail stores in Lawrenceville, Georgia; Las Vegas, Nevada; Lxxxxxxxx, Virginia, Lxxx Xxxxxx, New York; Niagara Falls, New York; Orlando Florida, and Reading, Pennsylvania and Borrower’s leased premises in New York, New York; (j) Lender shall have received an opinion of counsel, including certain local Borrower’s counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender; (jk) Lender shall have received satisfactory evidence (including a certificate of the Borrower signed by its chief financial officer) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed (after giving effect to any permitted extensions to file) and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents Documents; (m) Lender shall have completed its business, legal, and net collateral due diligence, including (i) a collateral audit and review of accounts payable aged Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s representations and warranties to Lender, the results of which shall be satisfactory to Lender, (ii) an inspection of each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Lender; and (iii) a review of all License Agreements, the form and substance of which must be acceptable in excess all respects to the Lender (including such agreements containing terms sufficient to enable the Lender to sell inventory relating to such License Agreements upon the exercise of 75 days from the invoice date or 45 days from the due date, held checks Lender’s rights and overdraftsremedies hereunder); (kn) Agent Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion; (o) Lender shall have received an appraisal of the Liquidation Percentage applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender; (p) Lender shall have received Borrower’s Closing Date Business Plan; (lq) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mr) Each Credit Party Lender shall have received copies of each of the License Agreements, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (s) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (st) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20May __, 20092004; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1in a form to be filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral; (c) Agent shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Aircraft Security Agreement, (ii) the Fee Letter;Borrower Stock Pledge Agreement, together with (A) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and (B) all promissory notes pledged thereunder, as well as allonges thereto or other appropriate transfer certificates endorsed in blank, (iii) the Officers’ Certificate;Cash Management Agreements, (iv) the Intellectual Property Security Agreements;Control Agreements (other than the Control Agreements specified in Section 3.2), (v) originals of the Pledged Equity and Pledged Notes;Disbursement Letter, (vi) the Perfection Certificate; andFee Letter, (vii) the Finova Consent, (viii) the Guarantor Security Agreement, (ix) the Guarantor Stock Pledge Agreement, together with (A) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and (B) all promissory notes pledged thereunder, as well as allonges thereto or other appropriate transfer certificates endorsed in blank, (x) the Guaranty, (xi) the Intercompany Subordination Agreement, (xii) the Intercreditor Agreement, (xiii) the Mortgage, (xiv) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender Agent of its Liens in and to the properties and assets of Borrower Borrowers and its their Subsidiaries;, and (xv) the Tax/Litigation Letter Agreement, (xvi) the Trademark Security Agreement, (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and party, (ii) authorizing specific officers of such Credit Party Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Borrower; (e) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party, (ii) authorizing specific officers of such Guarantor to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Guarantor; (i) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (l) Parent or any of the Borrowers shall have received a written agreement executed by Agent and each Lender, in form and substance satisfactory to Agent and each Lender, regarding Persons that are specifically excluded from being an Eligible Transferee; (m) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion6.8; (in) Agent shall have received an opinion opinions of counsel, including certain local Borrowers’ and Guarantors’ counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent; (jo) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Borrowers and their Subsidiaries have been timely filed and all taxes upon Borrowers and their Subsidiaries or their properties, assets, income, and Borrower franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (kq) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit, a takeover audit and a review of Parent’s and its Subsidiaries’ Books and records and verification of Borrowers’ representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where Borrowers’ and their Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Agent; (r) Agent shall have received Borrower’s completed reference checks with respect to Borrowers’ senior management, the results of which are satisfactory to Agent in its sole discretion; (s) Agent shall have received an appraisal of Borrowers’ and their Subsidiaries’ Inventory and an appraisal of Borrowers’ and their Subsidiaries’ Equipment (including fixed wing Aircraft, rotary wing Aircraft, or B747 or DC9 Aircraft and other Eligible Equipment), the results of which shall be satisfactory to Agent; (t) Agent shall have received Borrowers’ Closing Date Business Plan; (lu) Borrower Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mv) Each Credit Party Agent shall have received a mortgagee title insurance policy (or a marked commitment to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (the “Mortgage Policy”) in amounts satisfactory to Agent assuring Agent that the Mortgage on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policy otherwise shall be in form and substance satisfactory to Agent; (w) Agent shall have received title opinions with respect to the Aircraft Collateral issued by a Person satisfactory to Agent, which indicate that such Aircraft Collateral is free and clear of all defects and encumbrances except Permitted Liens, and which are otherwise in form and substance satisfactory to Agent; (x) Agent shall have received (i) a certificate executed by an officer of the Borrowers pursuant to which such officer certifies that (x) the liens listed on Schedule A to such certificate relate only to the specific equipment listed on Schedule B to such certificate, and (y) all of the outstanding obligations underlying or with respect to such liens have been satisfied in full; and (ii) certificates executed by an officer of the Borrowers pursuant to which such officer certifies that (x) none of the releases attached thereto as Exhibit A have been altered, and (y) all of the outstanding obligations that relate to the security agreement referenced therein have been satisfied in full, and otherwise in form and substance satisfactory to Agent; (y) Borrowers and each of their Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers or their Subsidiaries of the Loan Documents Document or with the consummation of the transactions contemplated thereby; (nz) Agent shall have received Collateral Access Agreements from established a system of electronic collateral reporting in order to provide electronic reporting of each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions items set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementsSection 6.2; and (saa) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The amendment and restatement of the Original Loan Agreement (including the “Advances” under the Original Loan Agreement becoming Advances hereunder) and the obligation of the each Lender Group (or any member thereof) to make its initial extension of credit hereunder shall be deemed to be effective as of the initial Advances (or otherwise to extend any credit provided for hereunder), is subject to Closing Date upon the fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Closing Certificates, (ii) the Fee Letter;Sale and Servicing Agreement, and (iii) the Officers’ CertificateOmnibus Amendment and Reaffirmation; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (eb) Agent shall have received copies of each Credit PartyBorrower’s and HTGC’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary or Assistant Secretary of such Credit PartyPerson or the Manager of such Person, as applicable; (fc) Agent shall have received a recent certificate certificates of status with respect to each Credit PartyBorrower and HTGC, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyPerson, which certificate shall indicate that such Credit Party Person is in good standing in such jurisdiction; (gd) Agent shall have received recent certificates of status with respect to Borrower and HTGC, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyPerson) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Person is in good standing in such jurisdictions; (he) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent; (f) Agent shall have received a certificate from the chief financial officer or chief executive officer of Borrower, certifying (i) as to the truth and accuracy of the representations and warranties of Borrower contained in Section 5 of this Agreement, (ii) the absence of any Defaults or Events of Default, and (iii) that after giving effect to the incurrence of Indebtedness under this Agreement and the other transactions contemplated by this Agreement, Borrower is Solvent; (g) Agent shall have completed its updated business, legal, and collateral due diligence, including a review of the legal structure of Borrower, HTGC and their Affiliates, a collateral audit and review of the books and records of Borrower and HTGC and any of their Affiliates with business operations similar to those of Borrower, a review of their collateral valuation methods, verification of each of such Person’s representations and warranties to the Lender Group, and verification of third-party service providers, in each case, the results of which shall be satisfactory to Agent; (h) Agent shall have received completed reference checks with respect to HTGC, Borrower, Xxxxxx X. Xxxxxxxxx, Xxxxxx Xxxx, and Xxxxxx Xxxxx, the results of which are satisfactory to Agent in its Permitted Discretionsole discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of pay all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (j) with respect to each Eligible Note Receivable as of the making of the initial Advance, Agent or the Collateral Custodian (if one has been appointed) shall be in possession of all of the Required Asset Documents; (k) Agent shall have received and approved Borrower’s Required Procedures, which Borrower’s Required Procedures shall be consistent with those previously represented to Agent and shall be acceptable to Agent in its sole discretion; (l) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens, if any) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Advances to be made on the Closing Date; (m) Each Credit Party Borrower and HTGC shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or HTGC of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center satisfactory evidence that as of the Credit Parties Closing Date and after giving effect to the initial Advance and the continuation of all “Advances” outstanding under the Original Loan Agreement immediately before the effectiveness of this Agreement as Advances hereunder, (i) Borrower, on a consolidated basis with its Subsidiaries, has a sum of (A) Tangible Net Worth, plus (B) Subordinated Debt, of not less than the sum of (I) the lesser of (x) the sum of the outstanding principal amounts of Borrower’s three largest Notes Receivable, and (y) $25,000,000, plus (II) any landlord or bailee positive amount of cumulative capital contributions made to Borrower from and after the Closing Date, and (ii) HTGC, on a consolidated basis with respect to real property located in its Subsidiaries, has a sum of (A) Tangible Net Worth, plus (B) Subordinated Debt, of not less than the states sum of Pennsylvania(I) $500,000,000, Washingtonplus (II) ninety percent (90%) of the cumulative amount of equity raised by HTGC after June 30, West Virginia or Texas2014; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of BorrowerAgent’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower counsel shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the and reviewed all standard documentation evidencing, governing, securing and guaranteeing Notes Receivable, and been satisfied such documentation provides Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources appropriate rights and uses for the transactions contemplated remedies to occur on the Closing Date and enforce any necessary collection actions with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating respect to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementssuch Notes Receivable; and (sp) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make its initial extension of credit hereunder is, in addition to the initial Advances (or otherwise to extend any credit provided for hereunder)conditions set forth in Section 3.2 hereof, is subject to the fulfillment, to the reasonable satisfaction of Agent in and each Lender and its Permitted Discretioncounsel, of each of the following conditions precedent set forth belowon or before the Closing Date: (a) Borrower shall have executed and delivered to Agent the Closing Date Disclosure Statement required under this Agreement. The form and content of the Disclosure Statement shall occur on or before February 20, 2009be reasonably satisfactory to Agent; (b) Agent shall have received a UCC Filing Authorization this Agreement, the Fee Letter, the Guaranty, the Security Agreement, the Intercompany Subordination Agreement and each other Loan Document not previously delivered to it, each duly executed and delivered by Borrower each party thereto (other than Agent or any Lender), each in form and each Guarantor, together with appropriate financing statements on Form UCC-1substance reasonably satisfactory to Agent; (c) Agent shall have received each the written opinions, dated the date of the following documentsthis Agreement, of counsel to Xxxxxxxx, with respect to this Agreement, which written opinions shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiariescounsel; (d) Agent shall have received a certificate from the Secretary certified copies of all effective financing statements, if any, which name as debtor Borrower, in each Credit Party attesting to the resolutions case, none of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the which statements shall evidence Liens other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the samethan Permitted Liens; (e) Agent shall have received copies a certificate of status with respect to each Loan Party dated within 30 days of the date of this Agreement, or confirmed by telefacsimile, if telefacsimile confirmation is available, such certificate to be issued by the Secretary of State of the jurisdiction of organization of each Credit Loan Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of which certificate shall indicate that such Credit PartyLoan Party is in good standing in such State; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Loan Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Loan Party) in which its such Loan Party’s failure to be duly qualified or licensed would constitute a Material Adverse ChangeEffect, which certificates shall indicate that such Credit Loan Party is in good standing or duly qualified in such jurisdictions; (g) Agent shall have received a copy of each Loan Party’s Governing Documents, certified by a Responsible Officer with respect to such Loan Party; (h) Agent shall have received a certificate copy of insurancethe resolutions or the unanimous written consent with respect to each Loan Party, together with certified as of the endorsements theretoClosing Date by a Responsible Officer of such Loan Party, as are required authorizing (A) the transactions contemplated by Section 6.7the Loan Documents to which such Loan Party is or will be a party, and (B) the form execution, delivery and substance performance by such Loan Party of each Loan Document to which shall such Loan Party is or will be satisfactory a party and the execution and delivery of the other documents to Agent be delivered by such Loan Party in its Permitted Discretionconnection herewith and therewith; (i) Agent shall have received an opinion a signature and incumbency certificate of counselthe Responsible Officer with respect to Borrower executing this Agreement, including certain local counsel in such jurisdictions as required by Agentthe Fee Letter, for the Credit PartiesSecurity Agreement, each in form and substance satisfactory the other Loan Documents not previously delivered to Agent in its Permitted Discretionto which Borrower is a party, certified by a Responsible Officer with respect to Borrower; (j) Borrower Agent shall have delivered received a Borrowing Base Certificate, dated as signature and incumbency certificate of the Closing Date based on Responsible Officer with respect to Guarantor executing the most recent completed fiscal month, Guaranty and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due datenot previously delivered to Agent to which Guarantor is a party, held checks and overdrafts)certified by a Responsible Officer with respect to Guarantor; (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred fees due on the Closing Date pursuant to the Fee Letter; (l) Agent shall have received a certificate executed by a Responsible Officer with respect to each Loan Party to the effect that such Loan Party has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) required in connection with the transactions evidenced by this AgreementLoan Documents, other than orders, consents, approvals, authorizations, filings or notifications the failure to obtain or make, as applicable, which could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee a certificate executed by a Responsible Officer with respect to real property located in each Loan Party to the states of Pennsylvaniaeffect that no litigation, Washingtoninquiry, West Virginia other action or Texas; proceeding (o) Agent governmental or otherwise), or injunction or other restraining order shall have completed its business, legal, and collateral due diligence, including be pending or overtly threatened that could reasonably be expected to have: (i) a commercial finance exam material adverse effect on the ability of the Loan Parties, taken as a whole, to repay the Loans and review the Letters of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender GroupCredit, the results of which shall be reasonably satisfactory to Agent, or (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur Material Adverse Effect on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury ManagementLoan Parties, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementstaken as a whole; and (sn) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent in and its Permitted Discretioncounsel.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the prior fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Restatement Effective Date shall occur on or before February 20November 13, 20092014; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;, (ii) the Fee Letter;, (iii) the Officers’ Certificate;Intercompany Subordination Agreement, (iv) the Intellectual Property Security Agreements;[Intentionally Omitted], (v) originals of the Pledged Equity and Pledged Notes;Stock Pledge Agreement, and (vi) the Perfection Certificate; andTrademark Security Agreement, (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (dc) Agent shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and party, (ii) authorizing specific officers of such Credit Party Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower; (ed) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Closing Restatement Effective Date, certified by the respective Secretary of such Credit PartyBorrower; (fe) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (gf) Agent shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (hg) Agent shall have received a certificate of insurance, together with the endorsements thereto, insurance as are required by Section 6.76.8, the form and substance of which shall be reasonably satisfactory to Agent; (h) Agent shall have received an opinion of Borrower’s counsel in its Permitted Discretionform and substance reasonably satisfactory to Agent; (i) Agent shall have received an opinion satisfactory evidence (including a certificate of counselthe chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including certain local counsel (a) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such jurisdictions as required by Agent, for taxes that are the Credit Parties, each in form and substance satisfactory to Agent in its subject of a Permitted DiscretionProtest; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Restatement Effective Date Business Plan; (lk) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement and invoiced at least 2 Business Days prior to the Restatement Effective Date; (l) Agent shall have received copies of Borrower’s quarterly financial statements for the two quarter period ending June 30, 2014, which shall be in form and substance reasonably satisfactory to Agent; (m) Each Credit Party Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements such evidence as it shall require of (i) the consummation of a Qualifying IPO, (ii) the receipt by Borrower of at least $100,000,000 of gross proceeds from each landlord or bailee the Qualifying IPO, and (iii) the conversion of all outstanding Series C Preferred Stock (including any distribution center outstanding guarantee fees pursuant to the OWB Fee and Reimbursement Agreement which are to be converted to Series C Preferred Stock) of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas;Borrower into common Stock; and (o) Agent shall have completed its businessThe aggregate amount of the Term Loans, legalthe Capex Term Loans, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, Advances funded on the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Restatement Effective Date a cash equity investment on terms reasonably satisfactory to Agent in an amount do not less than exceed $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain 25,000,000 in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretionaggregate.

Conditions Precedent to the Initial Extension of Credit. The obligation ------------------------------------------------------- of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any extensions of credit provided for hereunder), hereunder is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionLender, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 2014, 20092001; (b) Agent Lender shall have received a UCC Filing Authorization Letterall financing statements required by Lender, duly executed by Borrower Parent or its applicable Subsidiary, and each Guarantor, together with appropriate Lender shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Chase Control Agreement, (ii) the Fee Letter;Copyright Security Agreement, (iii) the Officers’ Certificate;Disbursement Letter, (iv) the Intellectual Property Security Agreements;Due Diligence Letter, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Certificate; and[intentionally omitted], (vii) [intentionally omitted], (viii) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (ix) the Trademark Security Agreement, (x) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesBorrower, (xi) the Guaranty, (xii) the Warrant, (xiii) the Registration Rights Agreement, (xiv) the Patent Security Agreement, (xv) the Pledged Notes, together with endorsements thereto executed in blank; (xvi) the Patent Side Letter, (xvii) the Permitted Holder Side Letter, (xviii) the Intercompany Subordination Agreement, and (xix) the Security Agreement; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent Lender shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Lender shall have received a certificate of status with respect to each Guarantor, dated within 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction; (k) Lender shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of the applicable Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that each Guarantor is in good standing in such jurisdictions; (l) Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLender; (im) Agent [intentionally omitted]. (n) Lender shall have received an opinion opinions of counsel, including certain local Borrower's and each Guarantor's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionLender; (jo) Borrower Lender shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Parent and its Subsidiaries have been timely filed and all taxes upon Parent and its Subsidiaries or their properties, assets, income, and Borrower franchises (including Real Property taxes -42- and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Parent and its Subsidiaries shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (kq) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Parent's and its Subsidiaries' books and records and verification of Parent's and its Subsidiaries' representations and warranties to Lender, the results of which shall be satisfactory to Lender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender; (r) Lender shall have received Borrower’s completed reference checks with respect to Parent's senior management, the results of which are satisfactory to Lender in its sole discretion; (s) Lender shall have received Parent's Closing Date Business Plan; (lt) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mu) Each Credit Party Lender shall have received copies of each of the Indenture Documents, together with a certificate of the Secretary of Parent certifying each such document as being a true, correct, and complete copy thereof; (v) Lender shall have received copies of each of the Stipulation of Settlement, together with a certificate of the Secretary of Parent certifying each such document as being a true, correct, and complete copy thereof; (w) Lender shall have received evidence that the maturity date of the $50,000,000 Note has been extended to a date not earlier than the date that is 6 months following the Maturity Date; (x) Lender shall have received evidence that all Intellectual Property of Parent necessary for the conduct of Borrower's business has been licensed by Parent to Borrower, the form and substance of all agreements or licenses (including, without limitation, the Parent License) evidencing such licensing shall be satisfactory to Lender, and Lender shall have received copies of each such agreement or license, together with a certificate of the Secretary of Parent certifying each such agreement or license as being a true, correct, and complete copy thereof; (y) [intentionally omitted]; (z) Parent and its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Parent and its Subsidiaries of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (saa) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 17, 20092007; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee LetterCompliance Certificate; (iii) the Officers’ CertificateFee Letter; (iv) the Intellectual Property Security AgreementsPost-Closing Agreement; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection CertificateIntercreditor Agreement; and (viii) the Pay-Off LetterPledge and Security Agreement, together with UCC termination each of the following, except in each case as set forth in the Post Closing Agreement: (A) evidence reasonably satisfactory to the Agent that, upon the filing and recording of instruments delivered on or before the Closing Date, the Agent, for the benefit of the Secured Parties (as defined in the Pledge and Security Agreement) shall have a valid and perfected security interest (having the priority set forth in the Intercreditor Agreement) in the Collateral, including (x) the filing of financing statements under the Code (y) copies of search reports as of a recent date listing all effective financing statements that name any Credit Party as debtor, together with copies of such financing statements, none of which shall cover the Collateral except for those that shall be terminated on the Closing Date or are otherwise permitted hereunder and (z) such other such documents duly executed by each Credit Party as the Agent may reasonably request with respect to the perfection of its security interests in the Collateral (including patent, trademark and copyright security agreements suitable for filing with the Patent and Trademark Office or the Copyright Office, as the case may be, and other documentation evidencing applicable documents under the termination by Existing Lender laws of its Liens in and any jurisdiction with respect to the properties perfection of Liens created by the Pledge and assets Security Agreement); (B) to the extent delivered to the Term Agent in connection with the Term Loan Agreement on the Closing Date or within such other time period as provided therein, copies of all certificates, instruments and other documents representing all Pledged Stock being pledged to the Term Agent and copies stock powers for such certificates, instruments and other documents executed in blank; (C) all Deposit Account Control Agreements, duly executed by the corresponding Deposit Account Bank and the applicable Credit Party; and (D) all Securities Account Control Agreements, duly executed by the applicable Credit Party and (1) all “securities intermediaries” (as defined in the Code) with respect to all Securities Accounts (as defined in the Code) and securities entitlements of the Borrower and its Subsidiarieseach Guarantor and (2) all “commodities intermediaries” (as defined in the UCC) with respect to all commodities contracts and commodities accounts held by the Borrower and each Guarantor; (d) Mortgages for all of the Real Property of the Credit Parties (except as may be agreed to by the Agent) identified on Schedule 3.1(d), together with all Mortgage Supporting Documents relating thereto; (e) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors (after giving effect to the Merger) authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (ig) Agent shall have received an opinion opinions of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (jh) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening the Required Closing Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (k) Agent shall have received Borrower’s Closing Date Business Plan; (li) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; provided that Agent shall have given notice to Borrower at least two days prior to the Closing Date with respect thereto; (mj) Each each Credit Party shall have received all licenses, approvals or evidence of other actions required by any material Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby, and all applicable governmental filings have been made and all applicable waiting periods shall have expired without, in either case, any action being taken by any competent authority, all applicable appeal periods shall have expired and there shall be no action by any Governmental Authority that would reasonably be expected to restrain, prevent or impose burdensome conditions on such Transactions; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sk) all other documents and legal matters required in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.; (l) Agent shall have received the Borrower's Closing Date Business Plan; (m) the representations and warranties contained in Article V shall be true and complete in all material respects; (n) there shall not have occurred any Material Adverse Effect, as such term is defined in the Merger Agreement, since May 22, 2007; (o) The Merger and related Transactions shall have been consummated or shall be consummated simultaneously with or immediately following the Closing Date without any waiver, amendment or modification of, or condition set forth in, the Transaction Documents except (i) with the prior written consent, not to be unreasonably withheld, of the Agent or (ii) for waivers, amendments or modifications that do not, individually or in the aggregate, materially and adversely affect the interests of the Lenders; (p) The Lenders shall have received from each of the Borrower and the Target (for purposes of this subparagraph (o), each an “Applicable Party”) a consolidated balance sheet as of the end of the most recently ended fiscal quarter (for which quarter such Applicable Party has publicly filed financial information with the Securities and Exchange Commission) and related statements of income and cash flows of such Applicable Party and its subsidiaries for the most recently ended fiscal year and the interim period thereafter (for which year and interim period such Applicable Party has publicly filed financial information with the Securities and Exchange Commission) and the trailing four quarters ended on the last day of such interim period (such statements to present, (x) in the case of the Target and its subsidiaries, their actual financial position and (y) in the case of the Borrower and its Subsidiaries, their pro forma financial position after giving effect to each of the Transactions), together with a certificate of the chief financial officer of such Applicable Party to the effect that such statements accurately present such actual or pro forma financial position, as applicable, of such Applicable Party and its subsidiaries in accordance with GAAP and Regulation S-X.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder)Term Loans, is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 28, 20092013; (b) [reserved]; (c) Agent shall have received a UCC Filing Authorization Letterevidence that appropriate financing statements and other filings have been duly filed in such office or offices as may be necessary or, duly executed by in the opinion of Agent, desirable to perfect Agent’s Liens in and to the Collateral (under applicable law); (d) Agent shall have received UCC, lien, tax lien and litigation searches, relating to each Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1the results of which are satisfactory to the Agent; (ce) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement LetterIntercreditor Agreement; (ii) the Fee Disbursement Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals copies of the Pledged Equity and Pledged Notes;Notes held by the Revolving Credit Agent; and (vi) the Perfection Certificate; and. (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (df) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (eg) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (fh) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (gi) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (hj) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (ik) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (kl) Agent shall have received Borrower’s Closing Date Business PlanProjections; (lm) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mn) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (no) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas[reserved]; (op) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, and (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received satisfactory evidence that (i) after giving effect to the Permitted Distribution if the Permitted Distribution were funded on the Closing Date with the proceeds of the Term Loans, and the payment of all Credit Card Processor agreementsfees and expenses required to be paid by Borrower on the Closing Date under this Agreement and the Revolver Agreement, the aggregate amount of the Borrower’s Qualified Cash would not be less than $10,000,000 and (ii) the Revolver Usage (as defined in the Revolver Agreement) shall be zero, on and immediately after the Closing Date; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20October 7, 20092003; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by each Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;, (ii) the Fee Letter;, (iii) the Officers’ Certificate;Guarantor Security Agreement, (iv) the Intellectual Property Security Agreements;Guaranty, (v) originals of the Pledged Equity and Pledged Notes;Intercompany Subordination Agreement, (vi) the Perfection Certificate; andIntercreditor Agreement, (vii) the Pay-Off Limited Recourse Guaranty, (viii) the Majestic Star Ship Mortgage, (ix) the Mortgages, (x) the Officers' Certificate, (xi) the Majestic Investor Lien Release Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender The Bank of New York of its Liens in and to the properties and assets of Borrower Borrowers and their Subsidiaries, (xii) the Majestic Star Lien Release Letter, together with UCC termination statements and other documentation evidencing the termination by The Bank of New York of its Liens in and to the properties and assets of Borrowers and their Subsidiaries, (xiii) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (xiv) the Subordination of Preferred Fleet Mortgage, (xv) the Subordination of Colorado Mortgage, (xvi) the Subordination of Mississippi Mortgage, (xvii) the Subordination of Majestic Star Ship Mortgage, (xviii) the Syndication Side Letter, (xix) the Trademark Security Agreement, and (xx) the Tunica Ship Mortgage; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (im) Agent shall have received an opinion opinions of counsel, including certain local Borrowers' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jn) Borrower Agent shall have delivered received satisfactory evidence that the Obligations hereunder have received a Borrowing Base Certificate, dated as rating of at least B from S&P or at least B2 from Moody's; (o) Agent shall have received saxxxxxxxory evidence (including a certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Borrowers and their Subsidiaries have been timely filed and all taxes upon Borrowers and their Subsidiaries or their properties, assets, income, and Borrower franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (kq) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where Borrowers' and their Subsidiaries' Inventory is located, the results of which shall be satisfactory to Agent; (r) Agent shall have received Borrower’s Borrowers' Closing Date Business Plan; (ls) Borrower Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mt) Each Credit Party Agent shall have received mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts reasonably satisfactory to Agent assuring Agent that, after giving effect to the Intercreditor Agreement, the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; (u) Agent shall have received copies of each of (i) the Senior Note Documents, (ii) the Management Agreement, (iii) the Expense Reimbursement Agreement, (iv) the BHR Operating Agreement, (v) the Berthing Agreement, and (vi) the Parking Lease, together with a certificate of the Secretary of the applicable Borrower certifying each such document as being a true, correct, and complete copy thereof; (v) Borrowers shall have provided Agent with sufficient evidence to demonstrate that (i) the offering of the Notes described in the Indenture has closed, (ii) the proceeds from such offering (in combination with the proceeds of the Advances made hereunder on the Closing Date) are being concurrently used to (A) repay, in full, the Majestic Star Notes, and (B) repay not less than 66-2/3rds percent of the Majestic Investor Notes, and (iii) an amendment to the Majestic Investor Existing Indenture has been executed and delivered and is in full force and effect, which amendment is in form and substance satisfactory to Agent; (w) Borrowers and each of their Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers or their Subsidiaries of the Loan Documents Document or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sx) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 24, 20092002; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed authorized by Borrower the applicable Borrowers, and each Guarantor, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Charge Over Shares, (ii) the Fee Letter;Copyright Security Agreement, (iii) the Officers’ Certificate;Debenture, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals of the Pledged Equity and Pledged Notes;Due Diligence Letter, (vi) the Perfection Certificate; andFee Letter, (vii) the Intercompany Subordination Agreement, (viii) the Officers’ Certificate, (ix) the Patent Security Agreement, (x) the Pay-Off Letter, together with UCC Uniform Commercial Code termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower Borrowers, and (xi) the Securities Pledge Agreement, together with all Pledged Notes and its Subsidiariesall certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (xii) the Trademark Security Agreement; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the samesame and (ii) certifying the names and true signatures of the officers of such Borrower authorized to sign each such Loan Document; (e) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall shall, in the case of the UK Borrower, indicate that such Credit Party Borrower is a limited company duly incorporated and existing under the laws of England and Wales, and in the case of all other Borrowers, indicate that such Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed (or, as the case may be, duly incorporated and existing) would constitute a Material Adverse Change, which certificates shall shall, in the case of the UK Borrower, indicate that such Credit Party Borrower is a limited company duly incorporated and existing under the laws of England and Wales, and in the case of all other Borrowers, indicate that such Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received an opinion Collateral Access Agreements with respect to the following locations (all locations where Books and Records are maintained): (1) 40 Xxxxxxx Xxxx, Xxxxxx, XX 00000; (2) Peninsula Plaza, 2000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx XX; and (3) 200 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000; (j) Agent shall have received opinions of counsel, including certain local Borrowers’ counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jk) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer or chief executive officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and Borrower franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (km) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers’ books and records and verification of Borrowers’ representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent and (ii) a review of all material agreements of Borrowers, the results of which shall be satisfactory to Agent; (n) Agent shall have received Borrowercompleted reference checks with respect to Borrowers’ senior management, the results of which are satisfactory to Agent in its sole discretion; (o) Agent shall have received an appraisal of Borrowers’ Recurring Maintenance Revenues, the results of which shall be satisfactory to Agent; (p) Agent’s senior credit committee shall have approved the financing contemplated hereby and by the other Loan Documents; (q) Agent shall have received Borrowers’ Closing Date Business Plan; (lr) Borrower Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (ms) Each Credit Party Agent shall have conducted Uniform Commercial Code, tax lien and litigation searches, the results of which shall be satisfactory to Agent; (t) The Initial Term Loan Amount shall equal or exceed $6,000,000; (u) Agent shall have received evidence that all Liens created by the UK Borrower, other than Permitted Liens, have been discharged and shall have received an acknowledgement copy of the filings of such discharge at the UK Companies Registry, in each case satisfactory to Agent; (v) Agent shall have received evidence satisfactory to Agent that the UK Borrower has notified all Account Debtors with whom the UK Borrower has an agreement or contract that results in Recurring Maintenance Revenues and as to which amounts are outstanding as of the Closing Date, such notice (i) to contain language to the effect that the UK Borrower has granted a security interest in such Account Debtor’s Accounts to Agent and Lenders pursuant to this Agreement and (ii) to be in form and substance satisfactory to Agent; (w) Agent shall be satisfied that each Inactive Subsidiary shall have duly assigned all of its interest in Intellectual Property Rights to Parent; (x) Agent shall be satisfied that the $8,200,000 settlement with respect to the Parent’s stockholders’ derivative suit will be funded solely by Parent’s insurance providers; (y) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sz) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the initial Advances Initial Extension of Credit shall not become effective until the date on which each of the following conditions, and each of the conditions set forth in Section 3.02, is satisfied (or otherwise to extend any credit waived in accordance with Section 11.02); provided for hereunder), is subject that each of the conditions set forth in this Section 3.01 shall be satisfied or waived no later than the Initial Credit Event Date. (a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the fulfillment, to Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received certified copies of the satisfaction resolutions of Agent in its Permitted Discretion, the Board of Directors of each of the conditions precedent set forth below:Guarantor and the Borrower approving this Agreement, and of all documents evidencing other necessary corporate action and governmental and regulatory approvals with respect to this Agreement. (ac) the Closing Date shall occur on or before February 20, 2009; (b) The Administrative Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received from each of the following documentsBorrower and the Guarantor, to the extent generally available in form and substance satisfactory to Agent in the relevant jurisdiction, a copy of a certificate or certificates of the Secretary of State (or other appropriate public official) of the jurisdiction of its Permitted Discretionincorporation, duly executeddated reasonably near the Initial Credit Event Date, (i) listing the charters of the Borrower or the Guarantor, as the case may be, and each amendment thereto on file in such document shall be office and certifying that such amendments are the only amendments to the Borrower's or the Guarantor's charter, as the case may be, on file in full force such office, and effect:(ii) stating that the Borrower, or the Guarantor, as the case may be, is duly incorporated and in good standing under the laws of the jurisdiction of its place of incorporation. (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) The Administrative Agent shall have received a certificate from the Secretary or certificates of each of the Borrower and the Guarantor, signed on behalf of the Borrower and the Guarantor respectively, by a the Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Initial Credit Party attesting Event Date, certifying as to (A) the absence of any amendments to the resolutions charter of such the Borrower or the Guarantor, as the case may be, since the date of the certificates referred to in paragraph (d) above, (B) a true and correct copy of the bylaws of each of the Borrower or the Guarantor, as the case may be, as in effect on the Initial Credit Party’s Board Event Date, (C) the absence of Directors authorizing its executionany proceeding for the dissolution or liquidation of the Borrower or the Guarantor, deliveryas the case may be, (D) the truth, in all material respects, of the representations and performance of this Agreement and warranties contained in the other Loan Credit Documents to which such Credit Party the Borrower or the Guarantor is a party party, as the case may be, as though made on and authorizing specific officers as of the Initial Credit Event Date, and (E) the absence, as of the Initial Credit Event Date, of any Default or Event of Default; and (ii) each of such Credit Party to execute the same;certifications shall be true. (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) The Administrative Agent shall have received a certificate of insurance, together with the endorsements theretoSecretary or an Assistant Secretary of each of the Guarantor and the Borrower certifying the names and true signatures of the officers of Guarantor or the Borrower, as are required by Section 6.7the case may be, authorized to sign, and signing, this Agreement and the form and substance of which shall other Credit Documents to be satisfactory to Agent in its Permitted Discretion;delivered hereunder on or before the Initial Credit Event Date. (if) The Administrative Agent shall have received an opinion of counselfrom Xxxxxx Xxxxxx LLP, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder Guarantor and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due dateBorrower, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licensesa favorable opinion, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located substantially in the states form of Pennsylvania, Washington, West Virginia or Texas; (o) Exhibit B hereto and as to such other matters as any Lender through the Administrative Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be may reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretionrequest.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 31, 20092003; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorGrantor, together with appropriate financing statements on Form UCC-1UCC-1 and PPSA financing statements duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Control Agreements, (iii) the Officers’ Certificate;Copyright Security Agreement, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Certificate; andCanadian Security Agreement, (vii) the Canadian Guarantee, (viii) the U.S. Credit Party Guarantee, (ix) the Intercompany Subordination Agreement, (x) the Officers' Certificate, (xi) the Patent Security Agreement, (xii) the Pay-Off Letter, together with UCC termination and PPSA statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower Companies, (xiii) the Stock Pledge Agreements, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (xiv) the Trademark Security Agreement; and (xv) the Subordination and its Subsidiaries;Standstill Agreement. (d) Agent shall have received a certificate from the Secretary of each Credit Party Company attesting to the resolutions of such Credit Party’s Company's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Company is a party and authorizing specific officers of such Credit Party Company to execute the same; (e) Agent shall have received copies of each Credit Party’s Company's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyCompany; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyCompany, dated within 20 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyCompany, which certificate shall indicate that such Credit Party Company is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyCompany, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyCompany) in which its failure to be duly qualified such Company's business operations generated 5% or licensed would constitute a Material Adverse Changemore of the Companies' consolidate gross revenues as of the Closing Date, which certificates shall indicate that such Credit Party Company is in good standing in such jurisdictions; (h) Agent shall have received evidence satisfactory to Agent that all copyrights and works protectable by copyrights and used in the Recurring Revenue Business have been registered with the applicable federal filing office; (i) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (ij) Agent shall have received an opinion opinions of counsel, including certain local Companies' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jk) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Companies have been timely filed and all taxes upon Companies or their properties, assets, income, and Borrower franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (km) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Companies' books and records and verification of Companies' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) a legal review of all material contracts and litigation matters; (n) Agent shall have received Borrower’s completed reference checks with respect to Companies' senior management, the results of which are satisfactory to Agent in its sole discretion; (o) Agent shall have received a net orderly liquidation value appraisal performed by a valuation firm selected by Agent, which appraisal shall specifically include an analysis of the Recurring Revenue, and the results of such appraisal shall be satisfactory to the Lender Group; (p) Agent shall have received Companies' Closing Date Business Plan; (lq) Borrower Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mr) Each Credit Party Companies shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Companies of the Loan Documents Document or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), hereunder is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion(at the direction of the Required Lenders), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted Discretion(at the direction of the Required Lenders), duly executedexecuted and delivered, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Fee LetterGuaranty and Security Agreement; (iii) the Officers’ CertificateWarrants; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the a completed Perfection Certificate; and (viiv) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries;Funds Flow. (db) Agent shall have received received: (i) a certificate certificate, in form and substance reasonably satisfactory to Agent (at the direction of the Required Lenders), from the Secretary an officer or member of each Credit Loan Party (A) attesting to the resolutions of such Credit Loan Party’s Board board of Directors directors (or equivalent governing body, sole shareholder or sole member) authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party it is a party and authorizing specific officers of such Credit Party natural persons to execute the same; , (eB) Agent shall have received copies attesting to the incumbency and signatures of each Credit such natural persons, certifying as to such Loan Party’s Governing Documents, as amended, modified, or supplemented as of the Closing DateDate (and with respect to Governing Documents that are charter documents, certified as of a recent date (not more than thirty (30) days prior to the Closing Date) by the respective Secretary of such Credit Party; appropriate governmental official) and (fC) Agent shall have received attaching a recent certificate of status with respect to each Credit such Loan Party, such certificate dated not more than thirty (30) days prior to be the Closing Date, issued by the appropriate officer of the jurisdiction of organization of such Credit Loan Party, which certificate shall indicate that such Credit Loan Party is in good standing (if applicable) in such jurisdiction; (gii) a certificate, in form and substance reasonably satisfactory to Agent shall have received recent certificates (at the direction of status with respect to the Required Lenders), from the Chief Executive Officer, President, Chief Financial Officer or similar such officer of Borrower certifying that, on behalf of each Credit Loan Party, after giving effect to the initial Loans and transactions hereunder, (A) the Loan Parties, on a consolidated basis, are Solvent, (B) no Default or Event of Default exists, (C) the representations and warranties set forth in Section 4 are true and correct in all material respects (except that such certificates materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or Material Adverse Effect in the text thereof) and (D) each Loan Party has complied with all conditions to be issued satisfied by it under the appropriate officer of Loan Documents except to the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure extent waived or permitted to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictionsdelivered pursuant to Section 6.19; (hiii) Agent shall have received a certificate customary opinions of insurance, together with the endorsements thereto, as are required by Section 6.7(A) Fox Rothschild LLP, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain Loan Parties’ local counsel in such jurisdictions as required by AgentCalifornia, for Illinois, Delaware, New York, Florida, Nevada, Pennsylvania and Massachusetts, (B) Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxx, PLC, the Credit Loan Parties’ local counsel in Virginia, (C) Xxxxxx Xxxxxxxxxx LLP, the Loan Parties’ local counsel in Ohio, (D) Xxxxxxxx Xxxxxxx LLP, the Loan Parties’ Canadian counsel; and (E) Bowditch and Xxxxx, LLP, the Loan Parties’ mortgage counsel in Massachusetts, each in form and substance reasonably satisfactory to Agent in its Permitted Discretionand the Required Lenders; (jiv) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)[reserved]; (kv) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit documentation and other information for each Loan Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with bank regulatory authorities under applicable “know your customer” procedures and Money Laundering Laws, including the execution and delivery by each such Credit Party of Patriot Act to the Loan Documents or with extent requested at least five (5) days prior to the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legalClosing Date, and collateral due diligence, including (i) a commercial finance exam such documentation and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which information shall be reasonably satisfactory to Agent and the Required Lenders; (iiivi) evidence that appropriate financing statements will be duly filed promptly following closing in such office or offices as may be necessary or as the Agent may reasonably request (at the direction of the Required Lenders) desirable to perfect Agent’s Lien’s in the Collateral; (vii) the results of searches as of a recent date of the Uniform Commercial Code (or equivalent) filings made with respect to the extent required by Agent an inspection of any Loan Parties in all relevant jurisdictions, copies of the locations where Borrower’s financing statements (or similar documents) disclosed by such search and its Subsidiaries’ Inventory is locatedevidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 7.2 or will be released substantially contemporaneously with the closing hereunder (including receipt of duly executed payoff letters and UCC-3 termination statements), together with UCC tax, pending suit, bankruptcy and judgment searches with respect to the Loan Parties in jurisdictions (and the results of which shall be must be) reasonably satisfactory to Agentthe Agent (at the direction of the Required Lenders); (pviii) Borrower shall have received prior (A) a summary of all existing insurance coverage, (B) evidence acceptable to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in (at the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure direction of the Borrower Required Lenders) that the insurance policies required by Section 6.7 have been obtained and its Subsidiaries; are in full force and effect, and (qC) certificates of insurance with respect to all existing insurance coverage, which certificates shall name Agent as an additional insured and/or loss payee and shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party evidence compliance with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementsSection 6.7; and (six) executed (and, if applicable, recorded) copies of all other material documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably reasonable satisfactory to Agent (at the direction of the Required Lenders). (c) [Reserved]; (d) Each Loan Party shall have received all other governmental, regulatory and third party approvals (including shareholder approvals and other consents) necessary to be obtained on or before the Closing Date in its Permitted Discretionconnection with this Agreement and the transactions contemplated by the Loan Documents, which shall all 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 this Agreement, the transactions contemplated by the Loan Documents; and (e) The representations and warranties of the Loan Parties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or Material Adverse Effect in the text thereof) on and as of the Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or Material Adverse Effect in the text thereof) on and as of such earlier date); (f) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the making of the Term Loans on the Closing Date shall have been issued and remain in force by any Governmental Authority against Borrower, Agent or any Lender; (g) After giving effect to the Term Loans as of the Closing Date and the liabilities and obligations of each of the Loan Parties under the Loan Documents, the Loan Parties, on a consolidated basis, shall be Solvent; (h) No material adverse change in the financial condition of the Loan Parties shall have occurred since December 31, 2023; and (i) Agent and each Lender shall have received all fees required to be paid, and all expenses required to be reimbursed hereunder (including the reasonable and documented fees and expenses of legal counsel); provided that, all such amounts may be paid with proceeds of the Term Loans made on the Closing Date.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder), is iswas subject to the fulfillmentfulfillment on or about the Closing Date, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes;; and (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the prior fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Restatement Effective Date shall occur on or before February 20May 15, 2009;2019; 137020431v13 (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;a Notice of Borrowing, (ii) the Fee Disbursement Letter;, (iii) the Officers’ Certificate;Fee Letter, (iv) promissory notes evidencing all Commitments and Loans of the Intellectual Property Security AgreementsLenders, as of the Restatement Effective Date; (v) originals of the Pledged Equity and Pledged Notes;Master Reaffirmation Agreement, (vi) Trademark Security Agreement, (vii) an amended, restated and consolidated mortgage with respect to the Perfection Certificateexisting Mortgages, together with any other documentation Agent deems necessary or desirable to evidence the transfer of all Real Property Collateral owned by FP Foods to Borrower, subject to Agent’s continuing first priority Lien; and (viiviii) with respect to all Real Property Collateral owned by Borrower, or any Subsidiary thereof, on the Pay-Off LetterRestatement Effective Date: (A) a lenders’ policy of title insurance with an insured amount not less than $30,000,000, (B) construction plans and budget for all projects that Borrower or such Subsidiary expect to initiate on any Real Property Collateral, (C) an appraisal evidencing a minimum appraised value of $60,000,000, together in the aggregate, for all such Real Property Collateral, (D) a Phase I environmental site assessment report, along with UCC termination statements a reliance letter in favor of the Agent relating thereto, (E) evidence as to whether any such Real Property Collateral is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” (or a similar designation) and, if it is, evidence that Borrower or such Subsidiary has obtained, with insurance companies as are reasonably satisfactory to Agent, such flood insurance in such reasonable total amount as the Agent may reasonably require, and other documentation evidencing the termination by Existing Lender of its Liens otherwise sufficient to comply with all applicable rules and regulations relating to flood insurance, in form and substance reasonably acceptable to the properties Agent, (F) a survey with respect to Property A, (G) a zoning opinion with respect to Property A, 137020431v13 (H) an Environmental Indemnity, and (I) a legal opinion with respect to each existing Mortgage and assets of Borrower and its Subsidiariesthe documents referred to in Section 3.1(b)(vii) above, delivered by Borrower’s or such Subsidiary’s counsel in the State in which the Real Property Collateral is located, including, without limitation, Pennsylvania; (dix) [Intentionally Omitted]; (x) Joinder Agreement with respect to the Intercompany Subordination Agreement, by the Dutch Subsidiary and acknowledged by the Borrower and the Agent; (xi) Pledged Interests Addendum with respect to the Dutch Subsidiary, by the Borrower; (c) Agent shall have received a certificate from the Secretary of Borrower and each Credit other Loan Party (i) attesting to the resolutions of such Credit PartyPerson’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Person is a party and party, (ii) authorizing specific officers of such Credit Party Person to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Person; (ed) Agent shall have received copies of Borrower’s, each Credit other Loan Party’s and each of their respective Subsidiaries’ Governing Documents, as amended, modified, or supplemented as of to the Closing Restatement Effective Date, certified by the respective Secretary of such Credit PartyPerson; (fe) Agent shall have received a recent certificate of status with respect to Borrower, each Credit Partyother Loan Party and each of their respective Subsidiaries, each dated within 10 days of the Restatement Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyPerson, which certificate shall indicate that the such Credit Party Person is in good standing in such jurisdiction; (gf) Agent shall have received recent certificates of status with respect to Borrower, each Credit Partyother Loan Party and each of their respective Subsidiaries, each dated within 30 days of the Restatement Effective Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyPerson) in which its such Person’s failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Person is in good standing in such jurisdictions; (hg) Agent shall have received a certificate certificates of insurance, together with the insurance and endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be reasonably satisfactory to Agent; (h) Agent shall have received an opinion of Borrower’s counsel in its Permitted Discretionform and substance reasonably satisfactory to Agent; (i) Agent shall have received an opinion satisfactory evidence (including a certificate of counselthe chief financial officer of Borrower) that all tax returns required to be filed by Borrower and 137020431v13 its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including certain local counsel (a) Real Property taxes and sales taxes, which could, individually or in the aggregate, reasonably be expected to result in a liability to Borrower or any of its Subsidiaries in excess of $10,000, and (b) payroll taxes) have been paid prior to delinquency, except such jurisdictions as required by Agent, for taxes that are the Credit Parties, each in form and substance satisfactory to Agent in its subject of a Permitted DiscretionProtest; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this AgreementAgreement and invoiced at least 2 Business Days prior to the Restatement Effective Date; (mk) Each Credit Party Agent shall have received a Beneficial Ownership Certification in relation to any Loan Party, or Subsidiary thereof, requested by the Agent or any Lender at least 2 Business Days prior to the Restatement Effective Date; and (l) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Restatement Closing Date shall occur on or before February 20November 10, 20092004; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall then be in full force and effect: (i) the Disbursement Fee Letter;, (ii) the Fee Letter;Guarantor Security Agreement, (iii) the Officers’ Certificate;Guaranty, (iv) the Intellectual Property Security Agreements;Intercompany Subordination Agreement, (v) originals of the Pledged Equity Intercreditor Agreement (in form and Pledged Notes;substance satisfactory to the Required Lenders), (vi) modifications of the Perfection Certificate; andMortgages, the Collateral Assignments of Key Leases, and the Collateral Assignments of Tower Leases, in form and substance satisfactory to Agent, reflecting the amendment and restatement of the Existing Loan Agreement, the increase in the Maximum Revolver Amount, and confirmation of recordation in all applicable jurisdictions of such modifications, (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesPledge Agreement; (dc) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (ed) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Restatement Closing Date, certified by the respective Secretary of Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date; (e) Agent shall have received a certificate of status with respect to Borrower, dated within 10 days of the Restatement Closing Date, such Credit Partycertificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a recent Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (g) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (h) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Restatement Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor; (i) Agent shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 10 days of the Restatement Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gj) Agent shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 30 days of the Restatement Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)jurisdiction; (k) Agent shall have received Borrower’s an opinion of Obligors’ counsel substantially in the form of the opinion delivered on the Closing Date Business Planand otherwise in form and substance satisfactory to Agent; (l) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower, its Subsidiaries, or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (m) Borrower shall have the Required Availability after giving effect to the initial extensions of credit, if any, hereunder; (n) Agent shall have received a certificate from the chief financial officer of Borrower with a copy of the Projections most recently delivered to the Lenders prior to the Restatement Closing Date attached thereto and certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the Obligors’ future performance for the periods covered thereby; (o) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mp) Each Credit Party Agent shall have received a title insurance date down 1B endorsement on existing title insurance policies for the Real Property Collateral issued by Chicago Title or another title insurance company satisfactory to Agent reflecting the amendment and restatement of the Existing Loan Agreement, the increase in the Maximum Revolver Amount; (q) The Lenders shall have received an updated appraisal of the OLV Value of the Stations, the results of which shall be satisfactory to the Lenders; (r) Agent shall have received copies of each of the Term Loan Documents, each of which shall be in form and substance satisfactory to the Required Lenders, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (s) Agent shall have received satisfactory evidence that all of the conditions precedent to the effectiveness of the Term Loan Documents have been (or concurrently are being) satisfied or waived by the Term Loan Agent and that the proceeds of the Term Loan have been (or concurrently are being) disbursed to pay down outstanding Advances and to pay fees and expenses incurred in connection with this Agreement and the Term Loan Agreement; and (t) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretionthe Lenders, of each of the conditions precedent set forth below, pursuant to the Interim Order: (a) the The Closing Date shall occur on or before February 20June 30, 20092002; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower Borrower, and each GuarantorAgent shall have received UCC, together with appropriate financing statements on Form UCC-1tax lien, title searches and judgment searches, satisfactory to the Lenders (including fixture filings); (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;, (ii) the Fee Due Diligence Letter;, (iii) the Officers’ Certificate;Canadian Guarantee, (iv) the Intellectual Property Canadian General Security Agreements;Agreement and the Hypotec, (v) originals of the Pledged Equity Mortgages and Pledged Notes;all ancillary documents required by or customary under state and local laws in connection therewith, (vi) the Perfection Officers' Certificate; and, (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesBorrower, (viii) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder (except for the stock certificate(s) of ACC Canada which are owned by Borrower), as well as Stock powers with respect thereto endorsed in blank, (ix) the Intellectual Property Security Agreement, and (x) the Interlender Agreement; (d) Agent shall have received a certificate from the Secretary of each Credit Loan Party attesting to the resolutions of such Credit Loan Party’s 's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Post-Petition Loan Documents to which such Credit Loan Party is a party and authorizing specific officers of such Credit Loan Party to execute the same; (e) Agent shall have received copies of each Credit Loan Party’s 's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of each such Credit Loan Party; (f) Agent shall have received a recent certificate of status with respect to each Credit such Loan Party, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of each such Credit Loan Party, which certificate shall indicate that each such Credit Loan Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7SECTION 6.8, the form form, scope and substance of which shall be satisfactory to Agent; (h) Agent and Lenders shall have received an opinion of the Loan Parties' counsel concerning, among other things, corporate existence, due authorization, execution and delivery, and to the effect that the Interim Order has been entered and is in its Permitted Discretionfull force and effect as of the Closing and of ACC Canada's counsel concerning, among other things, corporate existence, enforceability, due authorization, execution and delivery, and perfection of the Agent's security interest, each in form and substance satisfactory to Lenders; (i) Agent shall have received an opinion satisfactory evidence (including a certificate of counselthe chief financial officer of each Loan Party) that all tax returns required to be filed by each Loan Party have been timely filed and all taxes upon each Loan Party or its respective properties, assets, income, and franchises (including certain local counsel in Real Property taxes and payroll taxes) have been paid prior to delinquency, except such jurisdictions as required by Agent, for taxes that are the Credit Parties, each in form and substance satisfactory to Agent in its subject of a Permitted DiscretionProtest; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam collateral audit and review of Borrower’s and its Subsidiaries each Loan Party's books and records and verification of Borrower’s each Loan Party's representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, including, but not limited to, retail locations randomly selected by the Agent, the results of which shall be reasonably satisfactory to Agent, and (iii) satisfactory review of the April 2002 physical inventory results, the results of which are acceptable to Lenders in their sole discretion; (l) Agent shall have received completed reference checks with respect to each Loan Party's senior management, the results of which are satisfactory to the Lenders in their sole discretion; (m) Agent shall have received an appraisal of the Net Liquidation Percentage applicable to the Loan Parties' Inventory, the results of which shall be satisfactory to Agent; (n) Agent shall have received Borrower's Business Plan; (o) The Loan Parties shall have received all licenses, approvals or evidence of other actions, if any, required by any Governmental Authority in connection with the execution and delivery by the Loan Parties of this Agreement or any other Post-Petition Loan Document or with the consummation of the transactions contemplated hereby and thereby; (p) Borrower shall have received provided the Agent with a draft of Borrower's motion seeking entry of the Interim Order prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied filing such motion with the sources Bankruptcy Court, and uses for the transactions contemplated Interim Order shall be acceptable to occur on the Closing Date and with the capital structure of the Borrower and its SubsidiariesLenders in all respects; (q) Agent Borrower shall have received Cash Management Agreements relating delivered to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with Lenders a true and complete copy of the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgreed Budget; (r) Agent shall have received all Credit Card Processor agreements; and (s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to the Lenders; (s) Within five Business Days of the commencement of the Chapter 11 Cases, the Bankruptcy Court shall have entered the Interim Order and the Interim Order shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect (without the Lenders' prior approval) and, in the event that such order is the subject of any pending appeal, the performance of any obligation of any party hereto shall not be the subject of a stay pending appeal; (t) Borrower shall pay all Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (u) All First Day Orders and all other orders entered in the Chapter 11 Cases shall be in form and substance reasonably satisfactory to Agent the Lenders and their counsel; (v) Lenders shall have received a completed Enterprise Value acceptable to the Lenders in its Permitted Discretion.their sole discretion;

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any credit provided for hereunder), Extension of Credit is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each fulfillment of the following conditions precedent set forth belowprecedent: (a) the Closing Date The Administrative Agent shall occur have received, on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each the day of the following documentsinitial Extension of Credit, the following, each dated such day (except where specified otherwise below), in form and substance satisfactory to Agent each Lender (except where otherwise specified below) and (except for any Promissory Notes) in its Permitted Discretion, duly executed, and sufficient copies for each such document shall be in full force and effectLender: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals Certified copies of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s the Board of Directors Directors, or of the Executive Committee of the Board of Directors, of the Borrower authorizing its execution, delivery, and performance of the Borrower to enter into this Agreement and the other Loan Documents to which it is, or is to be, a party, and of all documents evidencing other necessary corporate action and Governmental Approvals, if any, with respect to this Agreement and such Credit Party is a party Loan Documents. (ii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names, true signatures and authorizing specific incumbency of (A) the officers of such Credit Party the Borrower authorized to execute sign this Agreement and the same;other Loan Documents to which it is, or is to be, a party, and the other documents to be delivered hereunder and thereunder and (B) the representatives of the Borrower authorized to sign notices to be provided under this Agreement and the other Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent. (eiii) Copies of the Certificate of Incorporation (or comparable charter document) and by-laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower. (iv) An irrevocable notice from the Borrower requesting termination of the "Commitments" under the Existing Revolving Agreement and the Existing Term Agreement effective automatically on such date upon the satisfaction (or waiver) of the other conditions precedent set forth in this Section 6.01. (v) The Promissory Notes (if requested by any Lender pursuant to Section 3.01(d)), duly executed by the Borrower. (vi) The Cash Collateral Agreement duly executed by the Borrower together with evidence of the completion of all other actions as may be necessary or, in the opinion of the Administrative Agent shall have received copies and counsel for the Administrative Agent, desirable to perfect the security interests and liens created thereby. (vii) A certified copy of Schedule II hereto, in form and substance reasonably satisfactory to the Administrative Agent setting forth: (A) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in each Credit Party’s Governing Documents, such Consolidated Subsidiary; and (B) debt (as amended, modified, or supplemented such term is construed in accordance with GAAP) of Enterprises as of the Closing Date, certified by the respective Secretary of such Credit Party;. (fviii) Favorable opinions of: (A) Micxxxx X. XxxXxxxxx, Xsq., Assistant General Counsel of the Borrower, in substantially the form of Exhibit D and as to such other matters as the Required Lenders, through the Administrative Agent, may reasonably request; and (B) McDxxxxxx, Xill & Emexx, xounsel to the Administrative Agent, in substantially the form of Exhibit E and as to such other matters as the Administrative Agent shall have received a recent certificate may reasonably request. (ix) A letter from The Bank of status Tokyo-Mitsubishi, Ltd., Los Angeles Branch, confirming that the participation obligations of each Existing Bank has been terminated with respect to each Credit Party, such certificate to be issued by the appropriate officer Existing Letter of Credit. (b) Each of the jurisdiction Existing Revolving Agreement and the Existing Term Agreement has been (or will have been, upon the first Extension of organization Credit and the application of such Credit Partythe proceeds thereof) paid in full, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction;the commitments thereunder terminated and all letters of credit issued thereunder either cash collateralized, canceled or replaced. (gc) Agent The following statements shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by true and the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Administrative Agent shall have received a certificate of insurancea duly authorized officer of the Borrower, together with dated the endorsements thereto, as are required by Section 6.7, the form Closing Date and substance of which shall be satisfactory to Agent in its Permitted Discretion;sufficient copies for each Lender stating that: (i) Agent shall have received an opinion the representations and warranties set forth in Section 7.01 of counsel, including certain local counsel in such jurisdictions as required by Agent, for this Agreement and Section 7 of the Credit Parties, each in form Cash Collateral Agreement are true and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated correct on and as of the Closing Date based as though made on the most recent completed fiscal month, and Borrower shall have opening Availability as of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due such date, held checks and overdrafts);and (kii) Agent shall have received Borrower’s Closing Date Business Plan;no event has occurred and is continuing that constitutes a Default or an Event of Default. (ld) The Borrower shall have paid all documented Lender Group Expenses incurred fees under or referenced in Section 2.02 and all expenses referenced in Section 11.04(a), in each case to the extent then due and payable. (e) All Governmental Approvals necessary in connection with the Loan Documents and the transactions evidenced by this Agreement; (m) Each Credit Party contemplated thereby shall have received all licensesbeen obtained and be in full force and effect. All third party approvals necessary or, approvals or evidence in the judgment of other actions required by any Governmental Authority the Administrative Agent, advisable in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of and the transactions contemplated thereby;thereby shall have been obtained and be in full force and effect. (nf) Agent The Lenders shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure unaudited interim consolidated financial statements of the Borrower and its Subsidiaries; Subsidiaries for the fiscal quarter ended March 31, 1997 (q) Agent shall have received Cash Management Agreements relating to which requirement may be satisfied by the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Managementdelivery of the Borrower's quarterly report on Form 10-Q for such quarter). The business, assets, property and financial condition of the Borrower and its Subsidiaries as reflected in accordance with the terms and conditions set forth herein, the form and substance of which such financial statements shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLenders.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make its initial extension of credit hereunder is, in addition to the initial Advances (or otherwise to extend any credit provided for hereunder)conditions set forth in Section 3.2 hereof, is subject to the fulfillment, to the reasonable satisfaction of Agent in and each Lender and its Permitted Discretioncounsel, of each of the following conditions precedent set forth belowon or before the Closing Date: (a) Borrower shall have executed and delivered to Agent the Closing Date Disclosure Statement required under this Agreement. The form and content of the Disclosure Statement shall occur on or before February 20, 2009be reasonably satisfactory to Agent; (b) Agent shall have received a UCC Filing Authorization this Agreement, the Fee Letter, the Guaranty, the Intercompany Subordination Agreement, the Loan Purchase Agreement, and each other Loan Document not previously delivered to it, each duly executed and delivered by Borrower each party thereto (other than Agent or any Lender), each in form and each Guarantor, together with appropriate financing statements on Form UCC-1substance reasonably satisfactory to Agent; (c) Agent shall have received each the written opinions, dated as of the following documentsdate of this Agreement, of counsel to Borrower and the Guarantor, with respect to this Agreement and the other Loan Documents, which written opinions shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiariescounsel; (d) Agent shall have received a certificate from of status with respect to each Loan Party dated within 30 days of the date of this Agreement, or confirmed by telefacsimile, if telefacsimile confirmation is available, such certificate to be issued by the Secretary of State of the jurisdiction of organization of each Credit Party attesting to the resolutions of Loan Party, which certificate shall indicate that such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of in good standing in such Credit Party to execute the sameState; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Loan Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Loan Party) in which its such Loan Party’s failure to be duly qualified or licensed would constitute a Material Adverse ChangeEffect, which certificates shall indicate that such Credit Loan Party is in good standing or duly qualified in such jurisdictions; (f) Agent shall have received a copy of each Loan Party’s Governing Documents, certified by a Responsible Officer with respect to such Loan Party; (g) Agent shall have received a copy of the resolutions or the unanimous written consent with respect to each Loan Party, certified as of the Closing Date by a Responsible Officer of such Loan Party, authorizing (A) the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (B) the execution, delivery and performance by such Loan Party of each Loan Document to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Loan Party in connection herewith and therewith; (h) Agent shall have received a signature and incumbency certificate of insurance, together the Responsible Officer with the endorsements thereto, as are required by Section 6.7respect to Borrower executing this Agreement, the form Fee Letter, and substance of which shall be satisfactory the other Loan Documents not previously delivered to Agent in its Permitted Discretionto which Borrower is a party, certified by a Responsible Officer with respect to Borrower; (i) Agent shall have received an opinion a signature and incumbency certificate of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form Responsible Officer with respect to Guarantor executing the Guaranty and substance satisfactory the other Loan Documents not previously delivered to Agent in its Permitted Discretionto which Guarantor is a party, certified by a Responsible Officer with respect to Guarantor; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of paid all fees and expenses required to be paid by Borrower due on the Closing Date under this Agreement or pursuant to the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Fee Letter; (k) Agent shall have received Borrower’s Closing Date Business Plana certificate executed by a Responsible Officer with respect to each Loan Party to the effect that such Loan Party has obtained all orders, consents, approvals, and other authorizations and has made all filings and other notifications (governmental or otherwise) required in connection with the Loan Documents, other than orders, consents, approvals, authorizations, filings or notifications the failure to obtain or make, as applicable, which could not reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee a certificate executed by a Responsible Officer with respect to real property located in each Loan Party to the states of Pennsylvaniaeffect that no litigation, Washingtoninquiry, West Virginia other action or Texas; proceeding (o) Agent governmental or otherwise), or injunction or other restraining order shall have completed its business, legal, and collateral due diligence, including be pending or overtly threatened that could reasonably be expected to have: (i) a commercial finance exam material adverse effect on the ability of the Loan Parties, taken as a whole, to repay the Loans and review the Letters of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender GroupCredit, the results of which shall be reasonably satisfactory to Agent, or (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur Material Adverse Effect on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury ManagementLoan Parties, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementstaken as a whole; and (sm) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, delivered or executed or recorded and shall be in form and substance reasonably satisfactory to Agent in and its Permitted Discretioncounsel.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 21, 20092001; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate all financing statements on Form UCC-1required by Agent, and Agent shall have received endorsed filed copies from the appropriate governmental agencies reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Second Amended Fee Letter; (iii) the Officers’ CertificateBank of America Termination Agreement; (iv) the Intellectual Property Security AgreementsFoothill Termination Agreement; (v) originals of the Pledged Equity and Pledged NotesFee Split Letters; (vi) second amendment to the Perfection Certificate; andMortgage with respect to MFI's Medford, Oregon facility, in form and substance satisfactory to the Agent; (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and second amendment to the properties Mortgage with respect to GCI's Hollywood, California Retail Store, in form and assets of Borrower and its Subsidiariessubstance satisfactory to the Agent; (dviii) the Resignation and Appointment Agreement; (ix) Agent shall have received a certificate from the Secretary of each Credit Party GCI attesting to the resolutions of such Credit Party’s Board each Borrower's Boards of Directors authorizing its their execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is they are a party and authorizing specific officers of such Credit Party each Borrower to execute the same; (ed) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit Partyeach Borrower; (fe) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 14 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Partyeach Borrower, which certificate shall indicate that such Credit Party each Borrower is in good standing in such jurisdiction; (gf) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 21 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party each Borrower is in good standing in such jurisdictions; (hg) Agent shall have received a certificate from the Secretary of insuranceGuarantor attesting to the resolutions of Guarantor's Board of Directors authorizing Guarantor's execution, together with delivery, and performance of the endorsements theretoLoan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same; (h) Agent shall have received copies of Guarantor's Governing Documents, as are required amended, modified, or supplemented to the Closing Date, certified by Section 6.7, the Secretary of Guarantor; (i) Agent shall have received an opinion of Obligors' counsel in form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion satisfactory evidence (including a certificate of counselthe chief financial officer of Administrative Borrower) that all tax returns required to be filed and all taxes upon Borrowers or their respective properties, assets, income and franchises (including certain local counsel in Real Property taxes and payroll taxes) have been paid, whether prior to delinquency or subsequent to delinquency, except such jurisdictions as required by Agent, for taxes that are the Credit Parties, each in form and substance satisfactory to Agent in its subject of a Permitted DiscretionProtest; (j) Borrower Borrowers shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of pay all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred by Agent or any other Lender in connection with the transactions evidenced by entry of Agent and the Lenders into this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sk) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in and its Permitted Discretioncounsel.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20October 10, 20092003; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Affiliate Subordination Agreement, (ii) the Fee Letter;this Agreement, (iii) the Officers’ Certificate;Control Agreements, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals of the Pledged Equity and Pledged Notes;(intentionally omitted), (vi) the Perfection Certificate; andGuarantor Security Agreement, (vii) the Guaranty, (viii) the Holding Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (ix) the Intercompany Subordination Agreement, (x) the Intercreditor Agreement, (xi) the Temecula Mortgage, (xii) (intentionally omitted), (xiii) the Patent Security Agreement, (xiv) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesSubsidiaries (or an agreement by the Existing Agent to deliver such documentation upon receipt of payment in full of the Indebtedness under the Existing Credit Agreement or, in the case of UCC termination statements, authorization for Agent to file UCC termination statements upon receipt of such payment), (xv) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and (xvi) the Trademark Security Agreement; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the state of Illinois and the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gk) Agent shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (hl) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (im) Agent shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated therebyAgent; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center satisfactory evidence (including a certificate of the Credit Parties chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texasa Permitted Protest; (o) [Intentionally Omitted]. (p) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam collateral audit and review of Borrower’s 's and its Subsidiaries books and records and verification of Borrower’s 's representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, and (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any each of the locations where Borrower’s 's and its Subsidiaries’ ' Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating completed reference checks with respect to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth hereinBorrower's senior management, the form and substance results of which shall be are satisfactory to Agent in its Permitted Discretionsole discretion; (r) Agent shall have received an appraisal of the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory and an appraisal of Borrower's and its Subsidiaries' Equipment, the results of which shall be satisfactory to Agent; (s) Agent shall have received Borrower's Closing Date Business Plan; (t) Borrower shall have paid all Credit Card Processor agreementsLender Group Expenses incurred and billed in connection with the transactions evidenced by this Agreement; (u) Agent shall have received (i) an appraisal of the Real Property Collateral reasonably satisfactory to Agent, and (ii) a mortgagee title insurance policy (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent ("Mortgage Policy") in an amount not to exceed the fair market value of the Real Property Collateral assuring Agent that the Temecula Mortgage is a valid and enforceable mortgage Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policy otherwise shall be in form and substance reasonably satisfactory to Agent; (v) Agent shall have received a phase-I environmental report with respect to each parcel composing the Real Property Collateral; the environmental consultants retained for such reports, the scope of the reports, and the results thereof shall be reasonably acceptable to Agent; (w) The Subordinated Convertible Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower; (x) The Senior Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower; (y) The HRC Notes shall have been amended or re-issued to extend the maturity date thereof to March 31, 2008, and Agent shall have received copies of such amendments or re-issued notes certified by the chief financial officer of Borrower; (z) The agreements governing the Borrower Preferred Stock and the Holding Preferred Stock shall have been amended to extend the period of time within which cash dividends are not paid thereunder in a manner satisfactory to Agent, and Agent shall have received copies of such amendments certified by the chief financial officer of Borrower; (aa) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Govern mentalAuthority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (bb) The conditions to the initial extension of credit set forth in Section 3.1 of the WFF Loan Agreement shall have been satisfied, and the lenders under the WFF Loan Agreement shall have concurrently funded the initial loans thereunder; and (scc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 206, 20092003; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate filed all financing statements on Form UCC-1required by Agent and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (ii) the Fee Letter;Guaranty, (iii) the Officers’ Certificate;Copyright Security Agreement, (iv) the Intellectual Property Trademark Security Agreements;Agreement, (v) originals of the Pledged Equity and Pledged Notes;Cash Management Agreements, (vi) the Perfection Certificate; andCredit Card Agreements, (vii) Control Agreements with respect to each DDA (executed by each applicable Borrower and Agent), other than the Excluded DDAs, (viii) the Pay-Off Letter, together with which shall authorize Agent to file all required UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower in the name and its Subsidiarieson behalf of the Existing Lender, (ix) the Disbursement Letter, (x) the Perfection Certificate of each Borrower, (xi) the Due Diligence Letter, (xii) the Guarantor Security Agreement, and (xiii) such additional documents as Agent may reasonably request; (d) Agent shall have received Collateral Access Agreements with respect to each location set forth on Schedule E-1 or such number of such locations as Agent may require in its Permitted Discretion. (e) Agent shall have received Bailee Acknowledgments or Processor Agreement with respect to each of the following locations: (i) Craft Cutting, 000 X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000; and (ii) Safeguard Warehouse, 000 Xxxxxx Xxxxxx, Jersey City, New Jersey, 07306. (f) Agent shall have received a pro forma Compliance Certificate dated as of the Closing Date; (g) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (eh) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (fi) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (gj) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (hk) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (l) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (m) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (n) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (o) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (ip) Agent shall have received an opinion opinions of counsel, including certain local Borrowers' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jq) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and Borrower franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (r) Borrowers shall have opening (i) an Excess Availability of not less than $15,000,000 1,500,000 after giving effect to the initial extensions Minimum Availability Reserve and (ii) provided to Agent evidence satisfactory to Agent that not less than $5,000,000 in cash has been contributed as equity to the capital of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Parent; (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (os) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam collateral audit and review of Borrower’s and its Subsidiaries Borrowers' books and records and verification of Borrower’s Borrowers' representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, and (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (qt) Agent shall have received Cash Management Agreements relating completed reference checks with respect to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth hereinBorrowers' senior management, the form results of which are satisfactory to Agent in its sole discretion; (u) Agent shall have received an appraisal of the Net Retail Liquidation Value and substance Net Liquidation Percentage applicable to Borrowers' Inventory, the results of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (rv) Agent shall have received the Closing Date Business Plan; (w) Borrowers shall pay all Credit Card Processor agreementsLender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (x) Agent shall have received evidence satisfactory in Agent's Permitted Discretion that Borrowers have received all consents, licenses, approvals or evidence of other actions required by any Person, including any Governmental Authority, in connection with the execution and delivery by Borrowers of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; and (sy) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any credit provided for hereunder), Extension of Credit is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each fulfillment of the following conditions precedent set forth belowprecedent: (a) the Closing Date The Administrative Agent shall occur have received, on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each the day of the following documentsinitial Extension of Credit, the following, each dated such day (except where specified otherwise below), in form and substance satisfactory to Agent each Lender (except where otherwise specified below) and (except for any Promissory Notes) in its Permitted Discretion, duly executed, and sufficient copies for each such document shall be in full force and effectLender: (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals Certified copies of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s the Board of Directors Directors, or of the Executive Committee of the Board of Directors, of the Borrower authorizing its execution, delivery, and performance of the Borrower to enter into this Agreement and the other Loan Documents to which it is, or is to be, a party, and of all documents evidencing other necessary corporate action and Governmental Approvals, if any, with respect to this Agreement and such Credit Party is a party Loan Documents. (ii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names, true signatures and authorizing specific incumbency of (A) the officers of such Credit Party the Borrower authorized to execute sign this Agreement and the same;other Loan Documents to which it is, or is to be, a party, and the other documents to be delivered hereunder and thereunder and (B) the representatives of the Borrower authorized to sign notices to be provided under this Agreement and the other Loan Documents to which it is, or is to be, a party, which representatives shall be acceptable to the Administrative Agent. (eiii) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as Copies of the Closing DateCertificate of Incorporation (or comparable charter document) and by-laws of the Borrower, together with all amendments thereto, certified by the respective Secretary or an Assistant Secretary of such Credit Party;the Borrower. (fiv) Agent shall have received a recent certificate An irrevocable notice from the Borrower requesting termination of status with respect the "Commitments" under the Existing Credit Agreement effective automatically on such date upon the satisfaction (or waiver) of the other conditions precedent set forth in this Section 6.01. (v) The Promissory Notes (if requested by any Lender pursuant to each Credit PartySection 3.01(d)), such certificate to be issued duly executed by the appropriate officer Borrower. (vi) The Cash Collateral Agreement duly executed by the Borrower together with evidence of the jurisdiction completion of organization all other actions as may be necessary or, in the opinion of such Credit Partythe Administrative Agent and counsel for the Administrative Agent, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction;desirable to perfect the security interests and liens created thereby. (gvii) Agent shall have received recent certificates A certified copy of status with respect to each Credit PartySchedule II hereto, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to the Administrative Agent setting forth: 37 43 (A) all Project Finance Debt of the Consolidated Subsidiaries, together with the Borrower's Ownership Interest in its Permitted Discretion.each such Consolidated Subsidiary; and

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 19, 20092002; (b) Agent shall have received (i) a UCC Filing Authorization Letterletter authorizing Agent to pre-file the financing statements required hereunder and under the Purchase Agreement, duly executed by Borrower Borrower, Servicer and each GuarantorOriginator, together with appropriate (ii) all financing statements on Form UCC-1required by Agent, naming Borrower as debtor and Agent as secured party, (iii) all financing statements required by Agent, naming each Originator as debtor, Borrower as secured party and Agent as assignee, and (iii) evidence satisfactory to Agent of the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Control Agreements, (ii) the Fee Disbursement Letter;, (iii) the Officers’ Certificate;Fee Letter, (iv) the Intellectual Property Security Agreements;Guaranty, (v) originals of the Pledged Equity and Pledged Notes;Cash Management Agreements, (vi) the Perfection Officers' Certificate; and, (vii) the Pay-Off LetterPurchase Agreement, together with UCC termination statements and other documentation evidencing and (viii) the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesServicing Agreement; (d) Agent shall have received a certificate from the Secretary of Borrower, Servicer and each Credit Party Originator (i) attesting to the resolutions of such Credit Party’s Person's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Transaction Documents to which such Credit Party Person is a party and authorizing specific officers of such Credit Party Person to execute the same, and (ii) certifying the names and true signatures of the officers of such Person authorized to sign each Transaction Document to which such Person is a party; (e) Agent shall have received copies of Borrower's, Servicer's and each Credit Party’s Originator's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyPerson; (f) Agent shall have received a recent certificate of status with respect to Borrower, Servicer and each Credit PartyOriginator, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyPerson, which certificate shall indicate that such Credit Party Person is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to Borrower, Servicer and each Credit PartyOriginator, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which each such Person maintains its chief executive office (but only to the extent that such Person's failure to be duly qualified or licensed in such jurisdiction would constitute a Material Adverse Change), which certificates shall indicate that such Credit Party Person is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of insuranceGuarantor (i) attesting to the resolutions of Guarantor's Board of Directors authorizing its execution, together with delivery, and performance of the endorsements theretoLoan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same, as are required by Section 6.7, and (ii) certifying the form names and substance true signatures of the officers of Guarantor authorized to sign each Loan Document to which shall be satisfactory to Agent in its Permitted DiscretionGuarantor is a party; (i) Agent shall have received an opinion copies of counselGuarantor's Governing Documents, including certain local counsel in such jurisdictions as required amended, modified, or supplemented to the Closing Date, certified by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionSecretary of Guarantor; (j) Borrower Agent shall have delivered received a Borrowing Base Certificatecertificate of status with respect to Guarantor, dated as within 10 days of the Closing Date based on the most recent completed fiscal monthDate, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required such certificate to be paid issued by Borrower on the Closing Date under this Agreement or appropriate officer of the other Loan Documents and net jurisdiction of accounts payable aged organization of Guarantor, which certificate shall indicate that Guarantor is in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdiction in which each Guarantor maintains its chief executive office (but only to the extent that Guarantor's failure to be duly qualified or licensed in such jurisdiction would constitute a Material Adverse Change), which certificates shall indicate that Guarantor is in good standing in such jurisdictions; (l) [INTENTIONALLY OMITTED] (m) [INTENTIONALLY OMITTED] (n) Agent shall have received an opinion of Borrower’s 's counsel in form and substance satisfactory to the Lenders, such opinion to include, without limitation, an opinion that the Transactions will be deemed a "true sale" under the Bankruptcy Code and other applicable law; (o) Agent shall be satisfied with the Companies' cash management systems, including as to the absence of commingling of funds among Borrower and the other Companies; (p) the Lenders shall have completed their business, legal, and collateral due diligence, including a takeover audit, a roll-forward of accounts receivable, the senior-sponsor visit and review of Borrower's, Servicer's and each Originator's books and records and verification of Borrower's, Servicer's and each Originator's representations and warranties to the Lender Group, the results of which shall in each case be satisfactory to the Lenders; (q) Agent shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion; (r) the Lenders shall have received the Closing Date Business Plan; (ls) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreementthe Transaction Documents, PROVIDED that Borrower has received invoices, each in reasonable detail, with respect thereto; (mt) Each Credit Party Agent shall have received copies of each Material Contract, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (u) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower of the Loan Documents this Agreement or any other Transaction Document or with the consummation of the transactions contemplated hereby and thereby; (nv) Agent any consent, waiver or other approval required to be obtained from any Person under any of the Debt Documents in order to permit the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties been duly executed and of any landlord or bailee with respect to real property located in the states of Pennsylvaniadelivered by such Person, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably in form and substance satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any a copy of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which same shall be reasonably satisfactory have been delivered to Agent, together with a certificate of the Secretary of Borrower certifying each such consent, waiver or other approval as being a true, correct and complete copy thereof; (pw) Borrower the parties to the Existing Credit Agreement shall have received prior to entered into the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Existing Credit Party with Xxxxx Fargo Treasury ManagementAgreement, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent, and a copy of the same shall have been delivered to Agent, together with a certificate of the Secretary of Borrower certifying such agreement as being a true, correct and complete copy thereof; (rx) Agent and its counsel shall be satisfied that upon the execution and delivery of the documents referred to in clauses (v) and (w) above, no other waivers, consents or other approvals shall be required under any Material Contract in order to permit the execution, delivery and performance of the Transaction Documents and the consummation of the Transactions; (y) Borrower, Servicer and the Originators shall have duly executed and delivered the Purchase Agreement and the following transactions shall have been consummated pursuant to the terms of the Purchase Agreement (the "Initial Transactions"): (i) the Originators shall have contributed to Borrower Subject Accounts in an aggregate amount of not less than $190,094,197.30; (ii) Borrower shall have issued to the Originators shares of its capital Stock in exchange therefore; (iii) concurrently with the making of the initial Advance hereunder, Borrower shall have purchased additional Subject Accounts from the Originators in an aggregate principal amount of not less than $25,880,874.61, shall have paid to the Originators cash consideration of at least $21,998,743.42 and shall have delivered to the Originators the Subordinated Note; and (iv) after giving effect to the preceding clauses (i) and (iii), Borrower shall have acquired good and marketable title to all Subject Accounts then in existence, free and clear of any Lien other than Permitted Liens; (z) Borrower shall have Availability in an amount of not less than $5,000,000 after giving effect to the initial Advances hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement and the other Loan Documents; (aa) Borrower shall have implemented a system of electronic collateral reporting, satisfactory to Agent in all respects, in order to provide electronic reporting of the Borrowing Base in accordance with SECTION 6.2(F); (bb) the Lenders shall have received all Credit Card Processor agreementsand be satisfied with the preliminary financial statements of Parent and its Subsidiaries for the fiscal quarter ending June 30, 2002; and (scc) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20March 31, 20092006; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed authorized by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1the applicable Borrowers; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;, (ii) the Fee Letter;, and (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries;Reaffirmation Agreement. (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit PartyBorrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit PartyBorrower’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated as of a recent date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated as of a recent date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate opinions of insurance, together with the endorsements thereto, as are required by Section 6.7, the Borrowers’ counsel in form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received an opinion satisfactory evidence (including a certificate of counselthe chief financial officer of each Borrower) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including certain local counsel in Real Property taxes and payroll taxes) have been paid prior to delinquency, except such jurisdictions as required by Agent, for taxes that are the Credit Parties, each in form and substance satisfactory to Agent in its subject of a Permitted DiscretionProtest; (j) Borrower Agent shall have delivered a Borrowing Base Certificatereceived copies of Borrowers’ audited consolidated and consolidating financial statements for the fiscal year ended November 30, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)2005; (k) Agent Borrowers shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (l) Agent shall have received Borrowers’ Closing Date Business Plan; (m) Each Credit Party Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sn) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 5, 20092001; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed authorized by Borrower and each Guarantorthe Guarantors, together with appropriate and Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) [intentionally omitted]; (ii) the Disbursement Letter; (iiiii) the Fee Notes; (iv) the Fee Letter; (iiiv) the Officers’ Certificate; (iv) the Intellectual Property Security Cash Management Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; andMortgages; (vii) the Pay-Off LetterOfficers' Certificate; (viii) the Subsidiary Documents; (ix) Sun Capital Management Agreement; (x) the Trademark Security Agreement; (xi) the Terminating Bank Group Documents, together with UCC termination statements and other documentation evidencing the termination by Existing Lender the Terminating Bank Group of its Liens in and to the properties and assets of Borrower Borrower, (xii) the Warrants; (xiii) the Continuing Bank Group Intercreditor Agreement and its Subsidiariesthe Equitable Intercreditor Agreement; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of Guarantor attesting to the resolutions of Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which Guarantor is a party and authorizing specific officers of Guarantor to execute the same; (i) Agent shall have received copies of Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Guarantor; (j) Agent shall have received a certificate of status with respect to Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Guarantor, which certificate shall indicate that Guarantor is in good standing in such jurisdiction; (k) Agent shall have received certificates of status with respect to Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Guarantor is in good standing in such jurisdictions; (l) Agent shall have received the original Cliffstar Note and any related documents as Agent may request, in its sole discretion, including without limitation, a Note Pledge Agreement and a certificate from an officer of Borrower satisfactory to Agent that, except as set forth on Schedule 3.1(l), no payment default has occurred on account of the Cliffstar Note and that, to Borrower's knowledge, no event of default has occurred under Cliffstar Corporation's existing bank credit facility; (m) Agent shall have received copies of the fully executed Continuing Bank Group Documents and such documents shall be in full force and effect, and no event of default shall have occurred thereunder; (n) Agent shall have received from Borrower a written analysis of the tax consequences to Borrower of the refinancing of Borrower's existing Indebtedness to the Bank Group from Borrower's independent accountants with respect to the foregoing, all of which shall be satisfactory to Agent in its sole discretion. (o) Agent shall have received from Borrower copies of all written agreements with its Farm Product Sellers, and with its other material vendors and material customers, as well as Borrower's written analysis of any arrangements with such vendors or customers, which may not be memorialized in writing, all of which shall be satisfactory to Agent, in Agent's sole discretion. (p) No Default or Event of Default exists as of the Closing Date; (q) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (ir) Agent shall have received Collateral Access Agreements from Wood County National Bank, Congress Financial Corporation and such other parties as Lender may require in its sole discretion with respect to, without limitation, the following locations: 2321 West Grand Avenue, Wisxxxxxx Xxxxxx, Xxxxxxxxx 00000, xxx Xxxxxxxxx, Xxxxxx; (s) [Intentionally omitted]; (t) Agent shall have received from Borrower a written analysis of Borrower's preferential wage claims and related Liens, along with an opinion of counselcounsel to Borrower with respect to the foregoing, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance all of which shall be satisfactory to Agent in its Permitted Discretionsole discretion; (ju) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that, except as listed on Schedule 3.1(u), all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (v) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (kw) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's books and records and verification of Borrower's representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent; (x) Agent shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Agent in its sole discretion; (y) Agent shall have received an appraisal of the Liquidation Percentage applicable to Borrower's Inventory and an appraisal of Borrower's Equipment, the results of which shall be satisfactory to Agent and an analysis by a third party industry expert satisfactory to Agent of the Hilco Appraisal Services LLC Inventory Appraisal dated November, 2000, in form and substance satisfactory to Agent; (z) Agent shall have received a testing, satisfactory to Agent in all respects from a market expert satisfactory to Agent, of the Borrower's Inventory, including the concentrate Inventory, verifying that Inventory is in good and saleable condition. (aa) Agent shall have received Borrower’s 's Closing Date Business PlanPlan together with a certificate of the chief executive officer of Borrower stating that the Closing Date Business Plan has been prepared on a reasonable basis and in good faith and is based on assumptions believed by Borrower to be reasonable at the time made and from the best information then available to Borrower; (lbb) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mcc) Each Credit Party Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance satisfactory to Agent; (dd) Agent shall have received a phase-I environmental report and a real estate survey with respect to each parcel composing the Real Property Collateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Agent; (ee) [Intentionally deleted]; (ff) Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (pgg) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent from Sun Capital in an amount not less than $20,000,000 from Sponsor 6,300,000, net of all fees paid or a Sponsor Affiliate which cash payable to Sun Capital at closing of such equity investment shall remain in the Borrower investment, on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent Agent, in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementssole discretion; and (shh) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent. (ii) Agent shall have received from Borrower a written analysis identifying all crops which it purchases from agricultural producers, all states in which it conducts processing operations or receives its product for processing, and all states in which the crops purchased by Borrower have been grown, along with an opinion from Borrower's counsel with respect to the applicability of any state or federal statutory agricultural liens or trust rights with respect to 90% or more of the crops subject to Borrower's purchases, all of which shall be satisfactory to Agent, in its Permitted Discretionsole discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 31, 20092005; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 and PPSA financing statements to be duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect Agent’s Liens in and to the Collateral; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i1) this Agreement, (2) the Security Agreement, (3) the Control Agreements, (4) the Credit Card Agreements, (5) the Disbursement Letter;, (ii6) the Perfection Certificate, (7) the Fee Letter;, (iii) 8) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; , and (vii9) the Pay-Off Letter, together with UCC and PPSA termination statements and other documentation evidencing the termination by Existing Lender Lenders of its their Liens in and to the properties and assets of Borrower Loan Parties and its their Subsidiaries;. (d) Agent shall have received a certificate from the Secretary of each Credit Loan Party attesting to the resolutions of such Credit Loan Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Loan Party is a party and authorizing specific officers of such Credit Loan Party to execute the same; (e) Agent shall have received copies of each Credit Party’s the Loan Parties’ Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit Loan Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Loan Party, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Loan Party, which certificate shall indicate that such Credit Loan Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Loan Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Loan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Loan Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received an opinion Collateral Access Agreements with respect to each warehouse and distribution center, and the corporate headquarters in the United States and Canada, if any, (other than a retail store location) leased by each member of counsel, including certain local the Borrowing Group; (j) Agent shall have received opinions from the Loan Parties’ counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jk) Borrower Borrowers shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Certificate demonstrating Availability of in an amount no less than $15,000,000 35,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business PlanDocuments; (l) Borrower Borrowers shall have paid all documented reasonable Lender Group Expenses incurred by the Agent in connection with the transactions evidenced by this Agreement, including, without limitation, all reasonable fees and expenses of counsel to Agent; (m) Each Credit Party Borrowers shall have paid all fees then due and payable as set forth in the Fee Letter; (n) Agent shall have received evidence satisfactory to Agent in Agent’s Permitted Discretion that each Loan Party has received all consents, all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Loan Party of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (so) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 16, 20092011; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretion, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee LetterClosing Compliance Certificate; (iii) the Officers’ Certificate;Fee Letter; and (iv) a reaffirmation of the Intellectual Property Collateral Documents, together with each of the following: (A) evidence reasonably satisfactory to the Agent that, upon the filing and recording of instruments delivered on or before the Closing Date, the Agent, for the benefit of the Secured Parties (as defined in the Pledge and Security AgreementsAgreement) shall have a valid and perfected security interest (having the priority set forth in the Intercreditor Agreement) in the Collateral, including (x) the filing of financing statements under the Code (y) copies of search reports as of a recent date listing all effective financing statements that name any Credit Party as debtor, together with copies of such financing statements, none of which shall cover the Collateral except for those that shall be terminated on the Closing Date or are otherwise permitted hereunder and (z) such other such documents duly executed by each Credit Party as the Agent may reasonably request with respect to the perfection of its security interests in the Collateral (including patent, trademark and copyright security agreements suitable for filing with the Patent and Trademark Office or the Copyright Office, as the case may be, and other applicable documents under the laws of any jurisdiction with respect to the perfection of Liens created by the Pledge and Security Agreement); (vB) originals of all Deposit Account Control Agreements not previously delivered to the Pledged Equity Agent, duly executed by the corresponding Deposit Account Bank and Pledged Notes; (vi) the Perfection Certificateapplicable Credit Party; and (viiC) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and all Securities Account Control Agreements not previously delivered to the properties Agent, duly executed by the applicable Credit Party and assets (1) all “securities intermediaries” (as defined in the Code) with respect to all Securities Accounts (as defined in the Code) and securities entitlements of the Borrower and its Subsidiarieseach Guarantor and (2) all “commodities intermediaries” (as defined in the UCC) with respect to all commodities contracts and commodities accounts held by the Borrower and each Guarantor; (d) Mortgages for all of the Real Property of the Credit Parties (except as may be agreed to by the Agent) identified on Schedule 3.1(d) to the Closing Compliance Certificate, together with all Mortgage Supporting Documents relating thereto; (e) Agent shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (ig) Agent shall have received an opinion opinions of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (jh) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening the Required Closing Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (k) Agent shall have received Borrower’s Closing Date Business Plan; (li) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; provided that Agent shall have given notice to Borrower at least two days prior to the Closing Date with respect thereto; (mj) Each each Credit Party shall have received all licenses, approvals or evidence of other actions required by any material Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby, and all applicable governmental filings have been made and all applicable waiting periods shall have expired without, in either case, any action being taken by any competent authority, all applicable appeal periods shall have expired and there shall be no action by any Governmental Authority that would reasonably be expected to restrain, prevent or impose burdensome conditions on such transactions; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sk) all other documents and legal matters required in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion; (l) Agent shall have received the Borrower’s Closing Date Business Plan; (m) the representations and warranties contained in Article V shall be true and complete in all material respects; and (n) there shall not have occurred any Material Adverse Effect since January 29, 2011.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20May 15, 20092002; (b) Agent shall have received a UCC Filing Authorization Letterfiled all financing statements required by Agent, duly executed by Borrower Borrower, and each Guarantor, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Guarantor Pledge and Security Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (ii) the Fee Letter;Guaranty, (iii) the Officers’ Certificate;Intellectual Property Security Agreement, (iv) the Intellectual Property Security Cash Management Agreements;, (v) originals of the Pledged Equity and Pledged Notes;Credit Card Agreements, (vi) the Perfection Certificate; andSubordination Agreement, (vii) the Fee Letter, (viii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower, (ix) the Disbursement Letter, and (x) the Perfection Certificates of each of Borrower and its Subsidiaries;Guarantor. (d) Agent shall have received a Collateral Access Agreement with respect to Borrower's corporate headquarters and distribution center located at 2727 Diehl Road, Naperville, Illinois; (e) Agent shall xxxx xxxxxxxx x certificate from the Secretary an officer of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance and the Term Loan (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20December 22, 20092000; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower Obligors, and each Guarantor, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Canadian Loan Documents, (ii) the Fee Letter;Intellectual Property Security Agreement, (iii) the Officers’ Certificate;Disbursement Letter, (iv) the Intellectual Property Security Agreements;Intercreditor Agreement, (v) originals of the Pledged Equity and Pledged Notes;[INTENTIONALLY LEFT BLANK], (vi) the Perfection Guaranty, (vii) the Cash Management Agreements, (viii) the Mortgages, except as otherwise provided in Sections 3.2(b) and (c), (ix) the Officers' Certificate; , (x) the Foreign Guaranties, (xi) the Stock Pledge Agreements, together with all certificates representing the shares of Stock pledged thereunder, as well as undated Stock powers with respect thereto signed in blank, (xii) the Environmental Indemnity Agreement, and (viixiii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries;Obligors. (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to Borrower, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gk) Agent shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyObligor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (hl) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (m) Agent shall have received Collateral Access Agreements with respect to the following locations: (i) 3120 Xxxxxx Xxx, Palo Alto, California; and (ii) the San Carlxx Xxxperty; (n) Agent shall have received an opinion of counsel, Obligors' (including certain local CPI Canada's) counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionLenders; (jo) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Obligors have been timely filed and all taxes upon Obligors or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (kq) Lenders shall have completed their business, legal, and collateral due diligence, including (i) a collateral audit and review of Obligors' books and records and verification of Obligors' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent; (r) Agent shall have received completed reference checks with respect to Obligors' senior management, the results of which are satisfactory to Agent in its sole discretion; (s) Agent shall have received an appraisal of Borrower's Equipment, the results of which shall be satisfactory to Agent; (t) Agent shall have received Borrower’s 's Closing Date Business Plan; (lu) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mv) Each Credit Party Except as provided in Sections 3.2(b) and (c), Agent shall have received (i) appraisals of the Real Property Collateral satisfactory to Agent, and (ii) mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral (other than the Bevexxx Xxxl Property Collateral and the Canadian Real Property Collateral) issued by a title insurance company satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; (w) Agent shall have received a phase-I environmental report with respect to each parcel composing the Real Property Collateral (other than the Bevexxx Xxxl Property Collateral and the Canadian Real Property Collateral); the environmental consultants retained for such reports, the scope of the reports or surveys, and the results thereof shall be reasonably acceptable to Agent; (x) Agent shall have received copies of each of the Senior Subordinated Debt Documents, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (y) Obligors shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party -55- 57 Obligors of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (nz) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center satisfactory evidence of the Credit Parties and completion of any landlord or bailee with respect the following on terms satisfactory to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including Agent: (i) a commercial finance exam and review the sale of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties the San Carlxx Xxxperty to the Lender Group, the results of which shall be reasonably satisfactory to Agent, Parent; (ii) an appraisal conducted by an appraisal firm selected by Agent the results lease of which shall be reasonably satisfactory the San Carlxx Xxxperty to Agent Borrower; and (iii) the financing by Wellx Xxxgo to Parent to enable Borrower and Parent to complete the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agenttransaction described in clause (i) above; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (qaa) Agent shall have received Cash Management Agreements relating a copy of an amendment to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with lease of the terms and conditions set forth herein, the form and substance of which shall be Palo Alto Real Property Collateral reasonably satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementsAgent; and (sbb) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in Lender (the making of such initial extension of credit by Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20May 14, 20092004; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender shall have received customary searches reflecting the filing of all such financing statements and evidencing the absence of any other Liens on Form UCC-1the Collateral, other than Liens on the Floor Plan Collateral in favor of the Floor Plan Finance Lenders and other Liens acceptable to Lender; (c) Agent Lender shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Copyright Security Agreement, (ii) the Fee Disbursement Letter;, (iii) the Officers’ Certificate;Fee Letter, (iv) the Intellectual Property Guarantor Security Agreements;Agreement, (v) originals of the Pledged Equity and Pledged Notes;Guaranty, (vi) the Perfection Certificate; andIntercompany Subordination Agreement, (vii) the Mortgage, (viii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries, (ix) the Pledge Agreement, together with (A) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank and (B) all promissory notes (including, without limitation, any intercompany promissory notes issued by any Subsidiary of a Loan Party) pledged thereunder, as well as allonges thereto or other appropriate instruments of transfer endorsed in blank, (x) the Trademark Security Agreement, (xi) the Collateral Assignment, and (xii) the Intercreditor Agreement; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Loan Party (i) attesting to the resolutions of such Credit Loan Party’s Board board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Loan Party is a party and party, (ii) authorizing specific officers of such Credit Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party; (e) Agent Lender shall have received copies of each Credit Loan Party’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit Loan Party, and, as of a recent date, by an appropriate official of the jurisdiction of organization of such Loan Party; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit Loan Party, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Loan Party, which certificate shall indicate that such Credit Loan Party is in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates of status with respect to each Credit Loan Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Loan Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Loan Party is in good standing in such jurisdictions; (h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be reasonably satisfactory to Agent in its Permitted DiscretionLender; (i) Agent Lender shall have received the Landlord’s Agreement; (j) Lender shall have received an opinion of counsel, including certain local Borrower’s counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender; (jk) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Parent and its Subsidiaries have been timely filed and all taxes upon Parent and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Lender shall have received a certificate from the chief financial officer of each Loan Party certifying (i) as to the truth and accuracy of the representations and warranties of each Loan Party contained in Section 5, (ii) the absence of any Defaults or Events of Default, and (iii) that after giving effect to the incurrence of Indebtedness under this Agreement, each Loan Party is Solvent; (m) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder hereunder, the consummation of the LDH Acquisition and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or Agreement, the other Loan Documents, the Senior Note Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Floor Plan Financing Documents; (kn) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Loan Parties’ books and records and verification of Loan Parties’ representations and warranties to Lender, the results of which shall be satisfactory to Lender, and (ii) an inspection of each of the locations where Borrower’s Inventory is located, the results of which shall be satisfactory to Lender; (o) Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion; (p) Lender shall have received Borrower’s Closing Date Business PlanPlan and the Financial Statements, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct and complete copy thereof, in each case, in form and substance satisfactory to Lender; (lq) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mr) Each Credit Lender shall have received and reviewed copies of each of the Senior Note Documents, the Floor Plan Financing Documents and the other Material Contracts, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof and that such agreements remain in full force and effect and that no Loan Party is in breach or default in any of its obligations under such agreements; (s) Loan Parties shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Loan Parties of the Loan Documents or with the consummation of the transactions contemplated thereby; (nt) Agent Lender shall have received Collateral Access Agreements from fully executed copies of each landlord or bailee of any distribution center of the Credit LDH Purchase Documents, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct and complete copy thereof and that such agreements remain in full force and effect and that none of the Loan Parties and is in breach or default in any of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texasits obligations under such agreements; (ou) Agent Lender shall have completed its businessreceived a copy of each legal opinion delivered in connection with the LDH Acquisition, legalwhich opinions shall either be addressed to Lender, or be delivered together with a letter permitting Lender to rely on such opinion; (v) Lender shall have received the Final Balance Sheet and collateral due diligence, including the Final Schedule (as such terms are defined in the LDH Purchase Agreement) delivered in accordance with terms of the LDH Purchase Agreement; (i) a commercial finance exam the LDH Acquisition, including all of the terms and review conditions thereof, shall have been duly authorized by the board of Borrower’s directors and its Subsidiaries books (if required by applicable law) the shareholders or members of the parties to the LDH Purchase Agreement and records all LDH Purchase Documents shall have been duly executed and verification delivered by the parties thereto and shall be in full force and effect as if made on and as of Borrower’s the Closing Date; (ii) the representations and warranties set forth in the LDH Purchase Documents shall be true and correct in all material respects as if made on and as of the Closing Date; (iii) each of the conditions precedent to the obligations of each of the parties to the LDH Purchase Documents to consummate the LDH Acquisition as set forth in the LDH Purchase Documents shall have been satisfied (or waived with the consent of Lender) and the LDH Acquisition shall have been consummated in accordance with the LDH Purchase Documents and all applicable law; (iv) the consideration to be paid by Parent on the Closing Date in respect of the LDH Acquisition shall not exceed $215,000,000; (v) Lender Groupshall have received evidence reasonably satisfactory to it as to the foregoing, as to the results receipt by all parties to the LDH Purchase Documents of all necessary regulatory, creditor, lessor, and other third-party approvals (including Xxxx-Xxxxx Xxxxxx), and as to compliance with all laws applicable to any of such parties; and (vi) prior to or concurrently with the making of the initial Advance (A) Parent shall purchase pursuant to the LDH Purchase Agreement (no material provision of which shall be reasonably satisfactory to Agenthave been amended or otherwise modified or waived without the prior written consent of Lender), (ii) an appraisal conducted by an appraisal firm selected by Agent and shall become the results owner of which shall be reasonably satisfactory to Agent all of the LDH Stock, free and clear of all Liens, and (iiiB) to the extent required by Agent an inspection of any each of the locations where Borrower’s LDH Sellers and its Subsidiaries’ Inventory is located, Parent shall have fully performed all of the results of which shall obligations to be reasonably satisfactory to Agentperformed by it under the LDH Purchase Documents; (px) Borrower shall have received prior to gross cash proceeds of $150,000,000 from the issuance of the Senior Notes, and on the Closing Date a cash equity investment Date, Borrower shall have the Required Availability, after giving effect to (1) the initial Advances made and Letters of Credit issued on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date Date, (2) the repayment in full of all indebtedness owing to Existing Lender, and Agent shall otherwise be satisfied (3) the payment of all fees, costs, and expenses incurred in connection with this Agreement, the sources other Loan Documents, the LDH Purchase Documents, the Senior Note Documents, the Floor Plan Financing Documents and uses for the transactions contemplated hereby and thereby and Borrower shall deliver to occur on the Closing Date and with the capital structure Lender a certificate of the chief financial officer of Borrower certifying as to the matters set forth above and its Subsidiariescontaining the calculation of Required Availability; (qy) Agent the Senior Note Documents and the Floor Plan Financing Documents shall be reasonably satisfactory, in form and substance, to Lender; (z) Lender shall have received Cash Management Agreements relating a certificate of the chief financial officer of Borrower certifying as to a detailed calculation of the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreementsBorrowing Base; and (saa) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of each Lender or Issuing Bank, as the Lender Group (or any member thereof) case may be, to make the its initial Advances (or otherwise to extend any credit provided for hereunder), Extension of Credit is subject to the fulfillment, to the satisfaction of Agent in its Permitted Discretion, of each fulfillment of the following conditions precedent set forth belowprecedent: (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Closing Date shall occur on or before February 20, 2009;Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received a UCC Filing Authorization Letter(i) Issuing Bank Agreements, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documentsBorrowers and Union Bank, in form and substance satisfactory to Agent in its Permitted Discretionthe Administrative Agent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Fee Letter; , duly executed by the Borrowers, in form and substance satisfactory to the Administrative Agent, and (iii) the Officers’ Certificate;Promissory Notes (if requested by any Lender pursuant to Section 3.01(d)), duly executed by the applicable Borrower. (ivc) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) The Administrative Agent shall have received a certificate from the Secretary of each Credit Party attesting favorable written opinion (addressed to the resolutions Administrative Agent, the Issuing Banks and the Lenders and dated the Closing Date) of such Credit Party’s Board (i) Thelen Reid & Priest LLP, New York counsel for the Obligors, xxxxxxxxxally in the form of Directors authorizing its execution, deliveryExhibit C, and performance (ii) Vincent Nitido, Jr., Esq., General Counsel for the Guarantor and xxxxxxx xxx xhe Borrowers, substantially in the form of Exhibit D. The Obligors hereby request such counsel to deliver such opinions. (d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Obligors, the authorization of the Transactions and any other legal matters relating to the Obligors, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel. (e) The representations and warranties of the Obligors set forth in this Agreement and the other Loan Documents to which such Credit Party is a party shall be true and authorizing specific officers correct, no Default or Event of such Credit Party to execute Default shall have occurred and be continuing, and the same; (e) Administrative Agent shall have received copies a certificate, dated the Closing Date and signed by the President, a Vice President or a Senior Financial Officer of each Credit Party’s Governing DocumentsObligor, as amended, modified, or supplemented confirming the same as of the Closing Date, certified by the respective Secretary of such Credit Party;. (f) The Administrative Agent shall have received a recent certificate of status with respect to each Credit Partycertificate, such certificate to be issued dated the Closing Date and signed by the appropriate officer President, a Vice President or a Senior Financial Officer of each Obligor, confirming compliance with the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is conditions set forth in good standing in such jurisdiction;this Section 6.01. (g) The Administrative Agent and the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation the Patriot Act, with respect to the Obligors. (h) The Administrative Agent shall have received recent certificates all fees and other amounts due and payable on or prior to the Closing Date, including all up-front fees and, to the extent invoiced, reimbursement or payment of status with respect to each Credit Party, such certificates all out-of-pocket expenses required to be issued reimbursed or paid by the appropriate officer of the jurisdictions (Borrowers hereunder or under any other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions;Loan Document. (hi) All requisite Governmental Authorities and third parties, if any, shall have approved or consented to this Agreement, the other Loan Documents and the Transactions to the extent required and material (and the Administrative Agent shall have received a certificate certified copies of insuranceall such approvals and consents, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to the Administrative Agent in its Permitted Discretion;and the Lenders), no stay of any applicable regulatory approval shall have been issued and there shall be no litigation, governmental, administrative or judicial action, actual or, to the knowledge of the Obligors, threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on this Agreement, the other Loan Documents or the Transactions. (j) Borrower The Administrative Agent shall have delivered a Borrowing Base Certificatereceived true, dated correct and complete copies, certified as to authenticity by the applicable Borrower, of the Closing Date based on the most recent completed fiscal month, and Note Purchase Agreement to which such Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts);is a party. (k) The Administrative Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with such other approvals, opinions and documents as any Lender, through the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Administrative Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be may reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretionrequest.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent in its Permitted Discretionand each of the Lenders, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20April 7, 20092000; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower the Obligors, and each Guarantor, together with appropriate Agent shall have received confirmation of the filing of all (or as many as is acceptable to Agent) of such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted Discretionand each of the Lenders, duly executed, and each such document shall be in full force and effect: (i) this Agreement; (ii) the Security Agreement, together with the U.S. motor vehicle registrations requested by Agent; (iii) tri-party blocked account agreements governing the Collection Accounts and the Lockbox Accounts; (iv) the Disbursement Letter; (iiv) the Fee Letter; (iii) Stock Pledge Agreement, and, as to each Obligor, all certificates representing shares of Stock that are pledged under the Officers’ Certificate; (iv) Stock Pledge Agreement, together with undated and executed Stock powers with respect to such Stock endorsed in blank, all promissory notes that are pledged under the Intellectual Property Security Agreements; (v) originals Stock Pledge Agreement, together with executed endorsements in blank of such promissory notes, and any appropriate control agreements referenced in the Pledged Equity and Pledged NotesStock Pledge Agreement governing the pledge of uncertificated equity interests owned by Obligors; (vi) the Perfection Certificate; andTrademark Security Agreement; (vii) the Patent Security Agreement; (viii) the Copyright Security Agreement; (ix) the Rolling Stock Security Agreement; (x) the Canadian Guaranty; (xi) the Canadian Security Agreement; (xii) the Guaranty; (xiii) the Hypothec; (xiv) the Guarantor Security Agreement; (xv) the Suretyship Agreement; (xvi) the Mortgages; (xvii) the Fee Split Letters; (xviii) the Pay-Off Letter, together with UCC termination statements statements, mortgage lien releases, U.S. motor vehicle registrations and lien releases relating to the same, and other documentation evidencing the termination by Existing Lender DIP Agent of its Liens in and to the properties and assets of Borrower and its Subsidiariesthe Obligors; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower (other than Oneida Asbestos Removal Inc.), dated within 20 Business Days of the Closing Date or such other date as is acceptable to Agent, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower (other than Oneida Asbestos Removal Inc. and such other Borrowers as may be agreed to by Agent), each dated within 25 Business Days of the Closing Date or such other date as is acceptable to Agent, such certificates to be issued by the appropriate officer of the jurisdictions (other than jurisdiction in which the jurisdiction of organization Chief Executive Office of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse ChangeBorrower is located, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Agent shall have received a certificate of status or equivalent document satisfactory to Agent with respect to each Canadian Guarantor, dated within 20 Business Days of the Closing Date or such other date as is acceptable to Agent, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Canadian Guarantor; (k) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.9, the form and substance of which shall be satisfactory to Agent in and its Permitted Discretioncounsel; (il) Agent shall have received an opinion fully executed and delivered originals of counsel(i) the Collateral Agency and Intercreditor Agreement, including certain local counsel in such jurisdictions as required by (ii) the Prepetition Lien Subordination and Intercreditor Agreement, and (iii) the Bonding Lien Intercreditor Agreement, the form and substance of each of which shall be satisfactory to Agent, for the Credit PartiesLenders, each and their respective counsel; (m) Agent shall have received opinions of Obligors' United States and Canadian counsel in form and substance satisfactory to Agent in its Permitted Discretion; (jn) Borrower Borrowers shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texascredit; (o) Agent shall have completed its businessreceived copies of the Junior Secured Debt Documents, legalas amended, modified, or supplemented to the Closing Date, certified by the Secretary of Parent, and collateral due diligence, including (i) a commercial finance exam such agreement and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which documents shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent in form and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory substance to Agent; (p) Borrower Agent shall have received prior copies of the PIK Unsecured Debt Indenture and the forms of each of the notes and related agreements and documents, as amended, modified, or supplemented to the Closing Date a cash equity investment on terms reasonably Date, certified by the Secretary of Parent, and such agreement and documents shall be satisfactory in form and substance to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its SubsidiariesAgent; (q) Agent shall have received Cash Management Agreements relating copies of the Unsecured Convertible Debt Indenture and the forms of each of the notes and related agreements and documents, as amended, modified, or supplemented to the Concentration Account maintained Closing Date, certified by the Secretary of Parent, and such agreement and documents shall be satisfactory in form and substance to Agent; (r) the Confirmation Order shall have been entered by the Bankruptcy Court and shall be in full force and effect, shall be final and non-appealable, and no appeal of the Confirmation Order shall be pending, (s) the Stipulation and Order shall have been entered by the Bankruptcy Court and shall be in full force and effect, (t) the Canadian Confirmation Order and the Canadian Vesting Order each Credit Party with Xxxxx Fargo Treasury Managementshall have been entered by the Canadian Bankruptcy Court and shall be in full force and effect, shall be final and non-appealable, and no appeal of either of such orders shall be pending, (u) the Plan of Reorganization shall have become effective pursuant to its terms and the terms and conditions of the Confirmation Order and Agent shall have received evidence satisfactory to it that each of the conditions to effectiveness were satisfied; (v) the Canadian Transactions shall have been fully consummated in accordance with the terms and conditions set forth herein, of the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionCanadian Confirmation Order; (rw) the Pre-Closing Restructuring Transactions shall have been fully consummated; (x) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably evidence satisfactory to Agent in it that (i) Parent has changed its Permitted Discretion.name from "Philxx Xxxvices (Delaware), Inc." to "Philxx Xxxvices Corporation", (ii) "1381648 Ontario Inc." has changed its name to "Philxx Xxxvices Inc.", and (iii) "1381649 Ontario Inc." has changed its name to "Philxx Xxxlytical Services Inc.";

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any initial credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20September 30, 20092002; (b) Agent shall have received a UCC the UCC/PPSA Filing Authorization Letter, Letter duly executed by Borrower each Loan Party and each Guarantor, together with appropriate Agent shall have received satisfactory evidence of the filing of all financing statements on Form UCC-1UCC-1 and all PPSA registration statements in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the security interests purported to be created by each applicable Loan Document; (c) Agent shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Canadian Guarantee, (ii) the Fee Letter;Canadian Security Agreement, (iii) the Officers’ Certificate;Cash Management Agreements, (iv) the Intellectual Property Security Agreements;Contribution Agreement, (v) originals of the Pledged Equity and Pledged Notes;Control Agreements, (vi) the Perfection Certificate; andDisbursement Letter, (vii) the Due Diligence Letter, (viii) the Fee Letter, (ix) the Guarantor Security Agreement, (x) the Guaranty, (xi) the Mortgages, (xii) the Officers' Certificate, (xiii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower the Loan Parties, (xiv) the Patent Security Agreement, (xv) the Pledge Agreement, together with (A) all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and its Subsidiaries;(B) all promissory notes pledged thereunder, as well as allonges thereto or other appropriate transfer certificates endorsed in blank, (xvi) the Trademark Security Agreement, (xvii) the Intercompany Subordination Agreement, (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit Party’s Board Borrower's board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the samesame and (ii) certifying the names and true signatures of the officers of such Borrower authorized to sign each Loan Document to which such Borrower is a party; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower and, as of a recent date, by an appropriate official of the state of organization of such Borrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each Loan Document to which such Guarantor is a party; (i) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor and, as of a recent date, by an appropriate official of the state of organization of such Guarantor; (j) Agent shall have received a recent certificate of status with respect to each Guarantor, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (k) Agent shall have received recent certificates of status with respect to each Guarantor, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (l) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be reasonably satisfactory to Agent in its Permitted DiscretionAgent; (im) Agent shall have received an opinion a certificate from the chief financial officer of counsel, including certain local counsel in such jurisdictions Parent certifying as required to (i) the optional and mandatory payments and prepayments made by Agent, for the Credit Loan Parties, each and the reductions of the commitments, under the loan documents between the Loan Parties and the Existing Lender and (ii) such other matters regarding the Indenture Documents as Agent may reasonably request; (n) Agent shall have received opinions of counsel to the Loan Parties in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent; (jo) Borrower Agent shall have delivered received reasonably satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Parent and its Subsidiaries have been timely filed and all taxes upon Parent and its Subsidiaries or their properties, assets, income, and Borrower franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of Permitted Protests; (p) Agent shall have opening received a certificate from the chief financial officer of each Loan Party certifying (i) in the case of each Borrower, as to (A) the truth and accuracy of the representations and warranties of Borrowers contained in Article 5, (B) the absence of any Defaults or Events of Default and (C) compliance with Section 7.20(b) after giving effect to the incurrence of Indebtedness under this Agreement and (ii) in the case of each Loan Party, that after giving effect to the incurrence of Indebtedness under this Agreement, each Loan Party is Solvent; (q) Borrowers shall have the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or and the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (kr) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of the Loan Parties' books and records and verification of the Loan Parties' representations and warranties to the Lender Group, (ii) a test count of Inventory located at Iron Age's Crafton, PA location, (iii) a review of Parent's unaudited financial statements for its Fiscal Month and fiscal quarter ended July 27, 2002, and (iv) receipt and review of a "takeover audit" of Parent and its Subsidiaries; (s) Agent shall have received Borrower’s completed reference checks with respect to the Loan Parties' senior management, the results of which are satisfactory to Agent in its reasonable discretion; (t) Agent shall have received an appraisal of the Net Liquidation Percentage applicable to Borrowers' Inventory and Loan Parties' Equipment, the results of which shall be reasonably satisfactory to Agent; (u) Agent shall have received the Closing Date Business Plan; (lv) Borrower Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mw) Each Credit Party Agent shall have received mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral listed on Schedule 3.1(w) (the "Appraised Real Property") issued by a title insurance company reasonably satisfactory to Agent (each a "Mortgage Policy" and, collectively, the "Mortgage Policies") in amounts reasonably satisfactory to Agent assuring Agent for the benefit of Lenders that the Mortgages on such Appraised Real Property are valid and enforceable first priority mortgage Liens on such Appraised Real Property free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agent; (x) Agent shall have received a phase-I environmental report with respect to each parcel composing the Appraised Real Property; the environmental consultants retained for such reports, the scope of the reports, the consultant's certification with respect to such reports and the substantive information reflected in such reports shall be acceptable to Agent in its Permitted Discretion; (y) Agent shall have received copies of each of the Material Contracts, together with a certificate of the Secretary of the Parent certifying each such document as being a true, correct, and complete copy thereof; (z) Agent shall have received (i) fully executed copies of each of the Indenture Documents, together with a certificate of the Secretary of Parent certifying each such document as being a true, correct, and complete copy thereof and that such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements and (ii) a letter agreement between Parent and Agent, pursuant to which Parent agrees to use its best efforts to repurchase its Parent Notes in a face amount separately agreed in writing between the Agent and the Administrative Borrower (subject to the conditions set forth in this Agreement); (aa) The Loan Parties shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents Parties of this Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sbb) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation obligations of Lender on the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any credit provided for hereunder)Closing Date, is are subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionXxxxxx, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower this Agreement and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documentsother Financing Documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executedexecuted by each Person party thereto, and each such document shall be in full force and effect: (i) , and no Default or Event of Default shall exist as of the Disbursement Letterexecution of such documents; (iib) Lender shall have received confirmation that the Fee LetterSecurity Documents (to the extent applicable) have been registered in the applicable jurisdictions so as to result in perfected of security in all jurisdictions required by the Lender on the Closing Date; (iiic) Lender shall have received the Officers’ Certificate; (iv) Warrants on the Intellectual Property Security Agreements; (v) originals of terms described in the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off LetterTerm Sheet, together with UCC termination statements all necessary TSX and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesNASDAQ approvals as required for such Warrants; (d) Agent Lender shall have received the applicable fees outlined in Section 2.03 together with any other fees contemplated by this Agreement and payable on the Closing Date; (e) Lender shall have received a certificate from the Secretary an officer of each Credit Loan Party attesting to (i) the resolutions of such Credit Loan Party’s applicable Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Financing Documents to which such Credit Party it is a party and authorizing specific officers party, (ii) the resolutions of such Credit Party Loan Party’s stockholders, shareholders or members, as applicable, to execute the same; (e) Agent shall have received copies of each Credit extent required pursuant to such Loan Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date(iii) such Loan Party’s Governing Documents, certified by the respective Secretary applicable jurisdiction of organization, and (iv) to the extent applicable in the relevant jurisdiction of incorporation, incumbency of the officers of such Credit Loan Party; (f) Agent to the extent applicable in the relevant jurisdiction of incorporation, Lender shall have received a recent certificate of status existence or good standing (or equivalent) with respect to each Credit Loan Party, such certificate to be issued by the appropriate officer dated within 10 days of the jurisdiction of organization of such Credit PartyClosing Date, which certificate shall indicate that such Credit Party is in the good standing in such jurisdictionthe applicable jurisdiction of organization; (g) Agent Lender shall have received recent certificates a legal opinion letter of status with respect Xxxxxxxx’s counsel in Canada and the United States of America, the form and substance of which shall be satisfactory to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictionsLender; (h) Agent Each of the Loan Parties shall have received a certificate all licenses, approvals, consents or evidence of other actions required by any Person in connection with the execution and delivery by such Loan Party of this Agreement or any other Financing Document or with the consummation of the transactions contemplated hereby and thereby; (i) Lender shall have received one or more certificates of insurance, together with the endorsements thereto, as are required by Section 6.76.08, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionLender; (j) Borrower No action, suit, investigation, litigation or proceeding before any arbitrator or Tribunal that could reasonably be expected to have a Material Adverse Effect if adversely determined shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement pending or the other threatened against any Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date Party or 45 days from the due date, held checks and overdrafts)any Subsidiary; (k) Agent Lender shall have received completed its business, legal, and Collateral due diligence, including receipt of the latest Board approved Budget, management and investor interviews, and customer verification, to be coordinated with the Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender in its sole discretion; (l) Borrower Lender shall have received all documentation and other information required with respect to the Loan Parties under applicable “know-your-customer” and anti-money laundering rules and regulation; (m) No Material Adverse Effect shall have occurred; (n) The Borrower’s Deposit Accounts with the Lender shall have been opened as required by Section 6.13; (o) No Material Adverse Change shall have occurred since the date of the Term Sheet. (p) The Loan Parties shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries;; and (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all All other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionLender, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20, 2009[Intentionally omitted]; (b) Agent Lender shall have received a UCC Filing Authorization Letterall financing statements required by Lender, duly executed by Borrower Guarantors and each GuarantorBorrower, together with appropriate and Lender shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Control Agreements, (ii) the Fee Letter;Copyright Security Agreement, (iii) the Officers’ Certificate;Disbursement Letter, (iv) the Intellectual Property Security Agreements;Due Diligence Letter, (v) originals the Parent Stock Pledge Agreement, together with all certificates, if any, representing the shares of the Pledged Equity and Pledged Notes;Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (vi) the Perfection Certificate; andGuaranty, (vii) the Pay-Off LetterIntercompany Subordination Agreement, (viii) the Patent Security Agreement, (ix) the Guarantor Security Agreement, (x) the Guarantor Copyright Security Agreement, (xi) the Guarantor Patent Security Agreement, (xii) the Guarantor Trademark Security Agreement, (xiii) the UK Guaranty, (xiv) the Borrower Stock Pledge Agreement, together with UCC termination statements and other documentation evidencing all certificates representing the termination by Existing Lender shares of its Liens Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in and to blank, (xv) the properties and assets of Borrower and its SubsidiariesCash Management Agreements, (xvi) the Officer's Certificate, and (xvii) the Trademark Security Agreement; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent Lender shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as to the date of the Closing Datethis Agreement, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to Borrower, dated within 45 days of the date of this Agreement, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Lender shall have received certificates of status with respect to Borrower, each dated within 45 days of the date of this Agreement, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Lender shall have received a certificate from the Secretary of each Guarantor attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the date of this Agreement, certified by the Secretary of such Guarantor; (j) Lender shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 45 days of the date of this Agreement, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gk) Agent Lender shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 45 days of the date of this Agreement, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLender; (im) Agent Lender shall have received an opinion Collateral Access Agreements with respect to the following locations: 8540 000xx Xxxxxx X., Xxxxx, Xxxxxxx 00000; (n) Lender shall have received opinions of counsel, including certain local domestic Guarantors' and Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender; (jo) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (p) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions extension of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (kq) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's books and records and verification of Borrower's representations and warranties to Lender, the results of which shall be satisfactory to Lender, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Lender; (r) Lender shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Lender in its sole discretion; (s) Lender shall have received an appraisal of the Net Liquidation Percentage applicable to Borrower's Inventory, and an appraisal of Borrower's trademarks and Equipment, the results of which shall be satisfactory to Lender; (t) Lender shall have received Borrower’s Closing Date 's Business Plan; (lu) Borrower shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mv) Each Credit Party Borrower shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sw) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionLender, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 3, 20092004; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1UCC-1 (or such applicable PPSA filings in respect of the Canadian Obligor) duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect Lender's Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements; (c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Canadian Security Documents, (ii) the Fee Letter;Cash Management Agreements, (iii) the Officers’ Certificate;Control Agreements, (iv) the Intellectual Property Copyright Security Agreements;Agreement, (v) originals of the Pledged Equity and Pledged Notes;Disbursement Letter, (vi) the Perfection Certificate; andDue Diligence Letter, (vii) the Fee Letter, (viii) the Intercompany Subordination Agreement, (ix) the Officers' Certificate, (x) the Patent Security Agreement, (xi) the Pay-Off Letter, together with UCC and PPSA termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries, (xii) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, and (xiii) the Trademark Security Agreement; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; and (ii) attesting to the incumbency and signatures of such specific officers of Borrower; (e) Agent Lender shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Lender shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party, and authorizing specific officers of such Guarantor to execute the same, and (ii) attesting to the incumbency and signatures of such specific officers of Guarantor; (i) Lender shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (j) Lender shall have received a certificate of status with respect to each Credit PartyGuarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyGuarantor, which certificate shall indicate that such Credit Party Guarantor is in good standing in such jurisdiction; (gk) Agent Lender shall have received recent certificates of status with respect to each Credit PartyGuarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyGuarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Guarantor is in good standing in such jurisdictions; (hl) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLender; (im) Agent Lender shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionLender; (jn) Lender shall have received a certificate of the chief financial officer of Borrower in form and substance satisfactory to Lender, that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (o) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (kp) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's and its Subsidiaries books and records and verification of Borrower's representations and warranties to Lender, (ii) a review of the customer contracts relative to the document imaging services, supply services and vendor services provided by Borrower and Canadian Obligor, (iii) review of financial statements for May 2004 and June 2004, and (iv) searches regarding copyrights, patents and trademarks owned by Borrower and Canadian Obligor; in each case, the results of which shall be satisfactory to Lender; (q) Lender shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Lender in its sole discretion; (r) Lender shall have received an appraisal of (i) Borrower's and its Subsidiaries' enterprise value, and (ii) the Recurring Contract Revenue, each prepared by an appraiser selected by Lender and the results of which shall be consistent with any draft appraisals received by Lender and otherwise satisfactory to Lender; (s) Lender shall have received Borrower’s 's Closing Date Business Plan; (lt) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mu) Each Credit Party Lender shall have received copies of the top 5 contracts (as determined by the total fees and revenue payable to Borrower thereunder) for each of Borrower's business segments, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (v) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (nw) Agent Lender shall either have received duly executed Collateral Access Agreements with respect to each Material Location or established a Landlord Reserve with respect to such Material Location; (x) Lender shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located evidence in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent Lender that the financing statement bearing number 0000000000 filed by Com Lease, Inc. with the Secretary of the State of California and the financing statements bearing the numbers 142978628 and 14077299 filed by Com Lease Inc. with the Secretary of the State of Maryland shall have received all Credit Card Processor agreementsbeen terminated; and (sy) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 2016, 20092001; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower the applicable Borrowers, and each Guarantor, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Control Agreements; (ii) the Disbursement Letter; (iiiii) the Due Diligence Letter; (iv) the Fee Letter; (iiiv) the Officers’ ' Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; andIntellectual Property Security Agreement; (vii) the Pay-Off LetterStock Pledge Agreement, together with UCC termination statements and other documentation evidencing all certificates representing the termination by Existing Lender shares of its Liens Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in and to the properties and assets of Borrower and its Subsidiariesblank; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received an opinion Collateral Access Agreements with respect to the following locations: 000 Xxxx Xxx Xxxxx, Xxxxx, Xxxxxxxxx 00000 and 000 Xxxx Xxxxxxx Xxxx, Xxxxx, Minnesota 55121; (j) Agent shall have received opinions of counsel, including certain local Borrowers' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jk) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and Borrower franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (km) Agent shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent, and (ii) an inspection of each of the locations where Inventory is located, the results of which shall be satisfactory to Agent; (n) Agent shall have received Borrower’s completed reference checks with respect to Borrowers' senior management, the results of which are satisfactory to Agent in its sole discretion; (o) Agent shall have received the appraisal of Borrowers' Enterprise Value, the results of which shall be satisfactory to Agent; (p) Agent shall have received Borrowers' Closing Date Business Plan; (lq) Borrower Borrowers shall have paid pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mr) Each Credit Party Agent shall have received satisfactory reference checks for Borrowers' key management and stockholders; (s) Agent shall have received an audit of Borrowers' books and records, the results of which shall be satisfactory to Agent; (t) Wam!Net Government Services, Inc. shall have entered into a definitive subcontractor agreement with EDS regarding the Navy Marine Corps Intranet (NMCI) Program and Agent shall have received an executed copy thereof; (u) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sv) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 2028, 20092004; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed authorized by Borrower the applicable Loan Parties, and each Guarantor, together with appropriate Agent shall have received confirmation of the filing of all such financing statements on Form UCC-1statements; (c) Agent Lenders shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLenders, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Control Agreements, (iii) the Officers’ Certificate;Copyright Security Agreement, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals the Amended and Restated of the Pledged Equity and Pledged Notes;Guaranty, (vi) Amended and Restated General Security Agreements securing the Perfection Certificate; andobligations of the Guarantors to the Agent and the Lender Group in form and substance satisfactory to Agent, (vii) the Pay-Off LetterMortgages and any amendments thereto as required by Lender, (viii) the Officers' Certificates, (ix) the Patent Security Agreement, (x) the Stock Pledge Agreement, together with UCC termination statements all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (xi) the Trademark Security Agreement, (xii) the Intercompany Subordination Agreement, (xiii) the Export Credit Agreement and other documentation the written approval by EXIM of the transactions contemplated hereunder, (xiv) Collateral Assignments of the Xxxxxxx Note and the Ruud Notes, together with the originals of such Xxxxxxx Note and Ruud Notes, (xv) Collateral Assignments of the notes evidencing the termination by Existing Lender Canadian Intercompany Loan and the UK Intercompany Loan, and (xvi) the original key man life insurance policy and Absolute Assignment of its Liens the key man life insurance described in and to the properties and assets of Borrower and its SubsidiariesSection 6.8(d); (d) No trustee, examiner, receiver or the like shall have been appointed or designated with respect to any Borrower or its businesses, properties or assets, including, without limitation, the Collateral and any other property which is security for the Obligations; (e) Agent shall have received a certified copy of the Confirmation Order which shall conform to the Plan in all respects and shall include provisions affecting this Agreement and the other Loan Documents and the transactions contemplated hereunder and thereunder as Agent may request, which Confirmation Order shall have been entered by the Bankruptcy Court after due notice to all creditors and other parties-in-interest, shall not have been stayed by the Bankruptcy Court (or by any other court of competent jurisdiction) or reversed, vacated, amended, supplemented or modified in any respect, and the time to appeal the Confirmation Order shall have expired, no appeal or petition for review, rehearing or certiorari with respect to the Confirmation Order shall be pending and the Confirmation Order shall be in full force and effect. (f) To the extent that the Plan is confirmed by the Bankruptcy Court, Agent shall have received evidence, in form and content satisfactory to Agent, that prior to the date hereof or concurrently herewith the Effective Date shall have occurred and the Plan has been Substantially Consummated; (g) Agent shall have received a certificate from the Secretary of each Credit Loan Party (i) attesting to the resolutions of such Credit Loan Party’s Board 's board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Loan Party is a party and authorizing specific officers of such Credit Loan Party to execute the samesame and (ii) certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which such Loan Party is a party; (eh) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (fi) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (gj) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (hk) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting to the resolutions of such Guarantor's Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same and (ii) certifying the names and true signatures of the officers of such Guarantor authorized to sign each Loan Document to which such Guarantor is a party; (l) Agent shall have received copies of each Guarantor's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor; (m) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (n) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdictions; (o) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (ip) Agent shall have received an opinion Collateral Access Agreements with respect to all locations leased by any Loan Party or owned by any third party and at which Collateral is located as identified on Schedule 5.5; (q) Agent shall have received opinions of counsel, including certain local Borrowers' and Guarantors' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent Lenders, which opinions shall include an opinion regarding the validity and enforceability of Lenders' application of Guarantor Collateral located in its Permitted DiscretionCanada and UK to the Obligations; (jr) Borrower Agent shall have delivered received satisfactory evidence (including a Borrowing Base Certificate, dated as certificate of the Closing Date based on the most recent completed fiscal monthchief financial officer of Parent) that all tax returns required to be filed by Loan Parties have been timely filed and all taxes upon Loan Parties or their properties, assets, income, and Borrower franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of Permitted Protests; (s) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)hereunder; (kt) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent Lenders shall have completed its their business, legal, and collateral due diligence, including (i) a commercial finance exam collateral audit and review of Borrower’s and its Subsidiaries Borrowers' books and records and verification of Borrower’s Borrowers' representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to AgentLenders, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any each of the locations where Borrower’s and its Subsidiaries’ Eligible Inventory is located, the results of which shall be reasonably satisfactory to Agent, (iii) satisfactory review of perfection and tax lien issues in Canada and the United Kingdom, and (iv) a satisfactory takeover audit of such matters as Agent shall deem appropriate in its sole discretion, including, without limitation, a testing of all eligible Collateral located in the United Kingdom, a review of taxes payable by Borrowers (including excise taxes), insurance, rents, inventory reconciliations, transfer pricing and contra account activity, the Export Borrowing Base and the structure and documentation of the indebtedness owing by DSI to Parent; (pu) Borrower Lenders shall have received prior completed reference checks with respect to Borrowers' senior management, the Closing Date a cash equity investment on terms reasonably results of which are satisfactory to Agent Lenders in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiariestheir sole discretion; (qv) Agent Lenders shall have received Cash Management Agreements relating an appraisal of the Net Liquidation Percentage applicable to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury ManagementBorrowers', in accordance with the terms and conditions set forth hereinCanadian Guarantor's Eligible Inventory and an appraisal of Loan Parties' Equipment, the form and substance results of which shall be satisfactory to Agent in its Permitted DiscretionLenders; (rw) Agent Lenders shall have received all Credit Card Processor agreements; andthe Plan, the Closing Date Business Plan, and Borrowers' pro forma balance sheet reflecting the consummation of the transactions hereunder, including without limitation, the transactions under the Plan; (sx) The capitalization and capital structure of Borrowers and the subsidiaries of Borrowers shall in all respects be satisfactory to Lenders; (y) The existing and projected liquidity of Borrowers and their ability to fund ongoing working capital, the cash management structure, flow of funds and other documents and legal matters cash requirements shall be satisfactory to Lenders; (aa) No Material Adverse Change shall have occurred in connection Borrowers' business, assets, financial condition, performance or prospects, in the value of the Collateral, in the ability of Borrowers to operate in accordance with the transactions contemplated by this Agreement shall have been delivered, executedprojections for the period after the Closing Date most recently delivered to Agent prior to the Closing Date, or recorded and shall be in form and substance reasonably satisfactory the ability of Borrowers to Agent comply with the financial covenants set forth in its Permitted Discretion.Section 7.20;

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make its initial extension of credit hereunder shall be deemed to be effective as of the initial Advances (or otherwise to extend any credit provided for hereunder), is subject to Closing Date upon the fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Fee LetterClosing Certificates; (iii) the Officers’ CertificateSale and Servicing Agreement; (iv) the Intellectual Property Security Agreements;Collateral Custodian Agreement, (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Borrowing Base Certificate; and (viivi) the Pay-Off Letter, together with UCC termination statements and each other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesLoan Document; (db) Agent the Existing Loan Agreement Debt shall have received a certificate from the Secretary of each Credit Party attesting to the resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement be paid in full and the other Existing Loan Documents to which such Credit Party is a party and authorizing specific officers of such Credit Party to execute the sameAgreement terminated; (ec) Agent shall have received copies of each Credit PartyBorrower’s and HCI’s Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary or Assistant Secretary of such Credit PartyPerson or the Manager of such Person, as applicable; (fd) Agent shall have received a recent certificate certificates of status on or before the Closing Date with respect to each Credit Party, such certificate to be Borrower and HCI issued by the appropriate officer of the jurisdiction of organization of such Credit PartyPerson, which certificate shall indicate that such Credit Party Person is in good standing in such jurisdiction; (ge) Agent shall have received recent certificates of status on or before the Closing Date with respect to each Credit Party, such certificates to be Borrower and HCI issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyPerson) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Person is in good standing in such jurisdictions; (hf) [Reserved]; (g) Agent shall have received a certificate from the chief financial officer or chief executive officer of insuranceBorrower, together certifying (i) as to the truth and accuracy in all material respects of the representations and warranties of Borrower contained in Section 5 of this Agreement (other than those representations and warranties already qualified by “Material Adverse Change” or a similar materiality qualifier, in which cash such certification shall certify as to the truth and accuracy in all respect of the representations and warranties of Borrower contained in Section 5 of this Agreement), (ii) the absence of any Defaults or Events of Default, and (iii) that after giving effect to the incurrence of Indebtedness under this Agreement and the other transactions contemplated by this Agreement, both HCI and Borrower are Solvent; (h) Agent shall have completed any business, legal, and collateral due diligence requested by it, including a review of the legal structure of Borrower, HCI and their Affiliates, a collateral audit and review of the books and records of Borrower and HCI and any of their Affiliates with business operations similar to those of Borrower, a review of their collateral valuation methods, verification of each of such Person’s representations and warranties to the endorsements theretoLender Group, as are required by Section 6.7and verification of third-party service providers, in each case, the form and substance results of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of pay all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (j) with respect to each Eligible Note Receivable as of the making of the initial Revolving Advance, Agent or Collateral Custodian shall be in possession of all of the Required Asset Documents; (k) Agent shall have received and approved Borrower’s Required Procedures, which Borrower’s Required Procedures shall be consistent with those previously represented to Agent and shall be acceptable to Agent in its sole discretion; (l) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens, if any) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Advances to be made on the Closing Date; (m) Each Credit Party Borrower and HCI shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or HCI of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas[Reserved]; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably received evidence satisfactory to Agent, (ii) it that Borrower has appointed an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory Independent Manager who is acceptable to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and in its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agentreasonable discretion; (p) Borrower there shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in an amount not less than $20,000,000 from Sponsor any court or a Sponsor Affiliate which cash equity investment shall remain before any arbitrator or Governmental Authority that, in the Borrower on and after reasonable discretion of Agent, singly or in the Closing Date and Agent shall otherwise be satisfied with the sources and uses for aggregate, materially impairs any of the transactions contemplated by the Loan Documents or that would reasonably be expected to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiariesresult in a Material Adverse Change; (q) Agent and counsel to Agent shall have received Cash Management Agreements relating executed copies of the written enforceability, corporate UCC, true sale and non-consolidation opinions of Dechert LLP, counsel for Borrower and HCI, as to such matters as Agent may reasonably request, dated as of the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, Closing Date and otherwise in accordance with the terms and conditions set forth herein, the form and substance of which shall be reasonably satisfactory to Agent in its Permitted Discretion(and Borrower hereby instructs, and HCI shall instruct, such counsel to deliver such opinions to Agent and Lenders); (r) in order to create in favor of Agent, for the benefit of the Lender Group, a valid, perfected first priority security interest in the Collateral, Borrower shall deliver: (i) evidence satisfactory to Agent shall have received of the compliance by Borrower of its obligations under Section 4 of this Agreement and any other collateral documents to which Borrower is a party (including, without limitation, its obligations to authorize or execute, as the case may be, and deliver Code financing statements, originals of securities, instruments and chattel paper); and (ii) the results of a recent search, by a Person satisfactory to Agent, of all Credit Card Processor agreementseffective Code financing statements (or equivalent filings) made with respect to any personal or mixed property of Borrower and HCI in the jurisdictions reasonably specified by Agent, together with copies of all such filings disclosed by such search, and Code termination statements (or similar documents) duly authorized by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective Code financing statements (or equivalent filings) disclosed in such search and required by Agent to be terminated; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The ------------------------------------------------------- obligation of the Lender Group (or any member thereof) to make the initial Advances Advance, the Term Loan A, the Term Loan B, or issue the initial Letters of Credit (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent in its Permitted Discretionand the Lenders, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20August 31, 20091999; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower the Obligors, and each Guarantor, together with appropriate Agent shall have received searches reflecting the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Fee Letter; (iii) the Officers’ CertificateLockbox Agreements; (iv) the Intellectual Property Security AgreementsDisbursement Letter; (v) originals of the Pledged Equity and Pledged NotesCopyright Security Agreement; (vi) the Perfection Certificate; andTrademark Security Agreement; (vii) the Guaranty; (viii) the Security Agreement; (ix) the Suretyship Agreement; (x) the Pledge Agreement, together with all originals of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreement, as well as Stock powers with respect thereto endorsed in blank; (xi) the Intercompany Subordination Agreement; (xii) the Pay-Off Letter, Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of Borrower the Obligors, and its Subsidiaries(z) such other documentation evidencing the termination of Liens (including the UK Lien in respect of Lloyds Bank but excluding Permitted Liens) in and to the properties and assets of the Obligors outside the United States; (xiii) the Closing Date Assignments; (xiv) the Registration Rights Agreement; and (xv) the Control Agreement. (d) Agent shall have received a certificate from the Secretary of each Credit Party Obligor attesting to the resolutions of such Credit Party’s Obligor's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Obligor is a party and authorizing specific officers of such Credit Party Obligor to execute the same; (e) Agent shall have received copies of each Credit Party’s Obligor's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit Partythe applicable Obligor; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyObligor, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyObligor, which certificate shall indicate that such Credit Party Obligor is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyObligor, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Obligor is in good standing in such jurisdictions; (h) Agent shall have received such Collateral Access Agreements respecting those locations identified on Schedule 3.1(h); --------------- (i) Agent shall have received satisfactory evidence that not less than the Required Library of all existing copyrights of Borrower required to be registered under Section 6(a) of the Copyright Security Agreement have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement which has been filed with the United States Copyright Office; (j) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.76.9, the form and substance of which shall be satisfactory to Agent in and ----------- its Permitted Discretioncounsel; (ik) Agent shall have received an opinion evidence that the Stock Purchase Agreement has been amended, the form and substance of such amendment to be satisfactory to Agent and its counsel, including certain local ; (l) Agent shall have received opinions of the Specified Obligors' counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (km) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with evidence that the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licensesPermitted Subordinated Debt has been subordinated, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretionsole discretion, to the payment of the Obligations; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance, the Term Loan, or issue the initial Letters of Credit or F/X Undertakings (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the reasonable satisfaction of Agent in its Permitted Discretionand the Lenders, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20June 15, 20091999; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower the Obligors, and Agent shall have received searches reflecting the filing of such financing statements in the jurisdictions in which the chief executive office of Xxxxxx and each Guarantor, together with appropriate financing statements on Form UCC-1Borrower is located); (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letterthis Agreement; (ii) the Fee Letter; (iii) the Officers’ CertificateLockbox Agreements; (iv) the Intellectual Property Security AgreementsDisbursement Letter; (v) originals the Copyright Security Agreement; together with (y) satisfactory evidence that all existing copyrights of Borrower relative to its proprietary computer software that are capable of being registered pursuant to Section 6(a) of the Pledged Equity Copyright Security Agreement have been promptly filed for registration with the United States Copyright Office, and Pledged Notesthat all such copyrights and any proceeds thereof are specifically encumbered by the Copyright Security Agreement, or (z) a letter of advice from Borrower's intellectual property counsel, in form and substance satisfactory to Agent, that all existing copyrights of Borrower relative to its proprietary computer software are not registerable under the United States Copyright Act of 1976 (as amended); (vi) the Perfection Certificate; andTrademark Security Agreement; (vii) the Guaranty; (viii) the Suretyship Agreement; (ix) the Pledge Agreement, together with all originals of certificates or other instruments (if any) evidencing the Stock pledged pursuant to the Pledge Agreement, as well as Stock powers with respect thereto endorsed in blank; (x) the Intercompany Subordination Agreement; (xi) the Pay-Off Letter, Letters; together with (y) UCC termination statements and other documentation evidencing the termination by each Existing Lender of its Liens in and to the properties and assets of the Obligors, and (z) (1) UCC termination statements and other documentation evidencing the termination of Liens (other than Permitted Liens) in and to the properties and assets of the Obligors, and (2) a certificate of an authorized officer of Borrower, together with supporting evidence satisfactory to Agent in its Permitted Discretion, that certain tax or judgment Liens (which Liens shall not constitute Permitted Liens) reflected in searches do not relate to Borrower and or its Subsidiariesassets; (xii) the Closing Date Assignments; (d) Agent shall have received a certificate from the Secretary of each Credit Party Obligor attesting to the resolutions of such Credit Party’s Obligor's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Obligor is a party and authorizing specific officers of such Credit Party Obligor to execute the same; (e) Agent shall have received copies of each Credit Party’s Obligor's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit Partythe applicable Obligor; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyObligor, dated or "brought down" (via so-called "bring down certificates") to a date on or before the Closing Date acceptable to Agent in its Permitted Discretion, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyObligor, which certificate shall indicate that such Credit Party Obligor is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyObligor, each dated or "brought down" (via so-called "bring down certificates") to a date on or before the Closing Date acceptable to Agent in its Permitted Discretion, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified such Obligor conducts a material amount of business or licensed would constitute has a Material Adverse Changematerial amount of assets, which certificates shall indicate that such Credit Party Obligor is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, in each case, as are required by Section 6.7SECTION 6.9, the form and substance of which shall be reasonably satisfactory to Agent in and its Permitted Discretioncounsel; (i) Agent shall have received an opinion of counsel(1) Consent to Assignment Agreements from such third persons as Agent may require, including certain local counsel with respect to the Billing Service Agreement with HBS (and acknowledged in such jurisdictions writing by its secured creditor), the Billing Service Agreement with Billing Concepts, Inc. (dba U.S. Billing or USBI), and each other Billing Service Agreement that Borrower wishes to submit for qualification as required by an Approved Billing Services Agreement, and (2) a notice of collateral assignment to Qwest Communications, in form and substance satisfactory to Agent, for duly executed by Agent and Xxxxxx relative to the Credit Parties, each IRU granted by Qwest Communications to Xxxxxx; (j) Agent shall have received opinions of the Obligors' counsel in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received a certificate from the chief financial officer of Administrative Borrower’s Closing Date Business Plan, certifying that all tax returns required to be filed by each Obligor have been timely filed and all taxes upon such Obligor or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with unrestricted cash or Excess Availability after giving effect to the transactions evidenced by this Agreementinitial Revolver Usage, of at least $20,000,000; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution Agent and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam collateral audit and review of Borrower’s and its Subsidiaries books and records the Obligors' Books and verification of Borrower’s the Obligors' representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agenteach Lender, and (ii) an appraisal conducted by an appraisal firm selected by Agent the results a review of which shall be reasonably satisfactory to Agent and (iii) all regulatory matters relative to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is locatedObligors' business, the results of which shall be reasonably satisfactory to Agenteach Lender; (n) Agent shall have completed reference checks with respect to the Obligors' senior management, the results of which are satisfactory to Agent and each Lender in their sole discretion; (o) Agent and each Lender with a Term Loan Commitment shall have received a Liquidation Value appraisal of the Obligors' international long distance business, the results of which are satisfactory to Agent and such Lenders in their sole discretion; (p) Borrower Agent shall have received prior to the Borrower's Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its SubsidiariesBusiness Plan; (q) Agent Borrower shall have received Cash Management Agreements relating pay all Lender Group Expenses, if and to the Concentration Account maintained extent invoiced as of the Closing Date, incurred by each Credit Party with Xxxxx Fargo Treasury Management, Agent or any other Lender in accordance connection with the terms consummation of the transactions contemplated in this Agreement and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretionother Loan Documents; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent and each Lender in its their Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20May 7, 20092004; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorCompany, together with appropriate financing statements on Form UCC-1duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (c) Agent shall have received title searches with respect to the Real Property identified on Schedule 5.21, the results of which shall be reasonably satisfactory to Agent; (d) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Aircraft Mortgage, (ii) the Fee Letter;Cash Management Agreements, (iii) the Officers’ Certificate;Control Agreements, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Certificate; andGuaranty, (vii) the Intercompany Subordination Agreement, (viii) the Intercreditor Agreement between Agent and the holders of the Subordinated Debt, (ix) the Mortgages with respect to the Real Properties identified on SCHEDULE R-1, (x) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesCompanies (other than Liens on cash collateral in an amount not to exceed $8,258,205.30 securing the Companies' obligations under the Wachovia L/Cs), and (xi) the Stock Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank; (de) Agent shall have received a certificate from the Secretary of each Credit Party Company (i) attesting to the resolutions of such Credit Party’s Board Company's board of Directors directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Company is a party and party, (ii) authorizing specific officers of such Credit Party Company to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Company; (ef) Agent shall have received copies of each Credit Party’s Company's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyCompany; (fg) Agent shall have received a recent certificate of status with respect to each Credit PartyCompany, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyCompany, which certificate shall indicate that such Credit Party Company is in good standing in such jurisdiction; (gh) Agent shall have received recent certificates of status with respect to each Credit PartyCompany, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyCompany) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Company is in good standing in such jurisdictions; (hi) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7SECTION 6.8, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20November 7, 20092003; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorBorrower, together with appropriate financing statements on Form UCC-1UCC-1 in form appropriate for filing in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent's Liens in and to the Collateral; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) Cash Management Agreements with respect to the Disbursement Letter;Check Clearance Collection Account and the Multicurrency Account, (ii) the Fee Letter;[Intentionally omitted], (iii) the Officers’ Certificate;Disbursement Letter, (iv) the Intellectual Property Security Agreements;Due Diligence Letter, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Officers' Certificate; and, (vii) the Patent Security Agreement, (viii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries, (ix) the Trademark Security Agreement, and (x) [Intentionally Omitted]; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate satisfactory evidence as to the existence of insurance, together with the endorsements thereto, as are insurance policies required by pursuant to Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion6.8 hereof; (i) [Intentionally Omitted]; (j) [Intentionally Omitted]; (k) [Intentionally Omitted]; (l) Agent shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionAgent; (jm) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all material tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) shown to be due and payable on such returns have been paid prior to delinquency, except (i) to the extent that such taxes are the subject of Permitted Protests, (ii) as to any sales taxes (but not use taxes) or state or federal income taxes, to the extent the aggregate unpaid past due (taking into account any applicable extension) amount thereof is less than $500,000, and (iii) as to any taxes (other than with respect to sales taxes or state or federal income taxes), to the extent that such failure to pay such taxes, could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change; (n) Borrower shall have delivered a the Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of not less than $15,000,000 20,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or TexasDocuments; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam audit of Borrower's business prepared by Spain, Price, Reader & Thompson, the results of which shall be satisfactory to Agent, (xx) x retail inventory appraisal (including as to the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory) conducted by Great American Appraisal & Valuation Services, L.L.C., the results of which shall be satisfactory to Agent, (iii) such additional collateral audit and review of Borrower’s 's and its Subsidiaries books and records and verification of Borrower’s 's representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by all as Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is locatedmay deem appropriate, the results of which shall be reasonably satisfactory to Agent, and (iv) an inspection of each of the locations where Borrower's and its Subsidiaries' Inventory is located (to the extent Agent determines in its sole discretion that such inspection is appropriate), the results of which shall be satisfactory to Agent; (p) Borrower Agent shall have received prior completed reference checks with respect to Borrower's senior management, the Closing Date a cash equity investment on terms reasonably results of which are satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiariessole discretion; (q) Agent Borrower shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, paid all documented and invoiced Lender Group Expenses incurred in accordance connection with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretiontransactions evidenced by this Agreement; (r) Agent [Intentionally Omitted]; (s) Borrower and each of its Subsidiaries shall have received all Credit Card Processor agreementslicenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (t) [Intentionally Omitted]; and (su) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgent.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the initial Advances Initial Extension of Credit shall not become effective until the date on which each of the following conditions, and each of the conditions set forth in Section 3.02, is satisfied (or otherwise waived in accordance with Section 11.02); provided that each of the conditions set forth in this Section 3.01 shall be satisfied or waived no later than the Initial Credit Event Date. (a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to extend any the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Lenders, the Administrative Agent, the Arrangers and each other Person entitled to the payment of fees or the reimbursement or payment of expenses, pursuant hereto or to that certain fee letter dated March 1, 2001, executed and delivered with respect to the credit facility provided for hereunder)herein, is subject shall have received all fees required to be paid by the fulfillmentInitial Credit Event Date, to and all expenses for which invoices have been presented on or before the satisfaction Initial Credit Event Date. (c) The Administrative Agent shall have received certified copies of Agent in its Permitted Discretion, the resolutions of the Board of Directors of each of the conditions precedent set forth below:Guarantor and the Borrower approving this Agreement, and of all documents evidencing other necessary corporate action and governmental and regulatory approvals with respect to this Agreement. (ad) the Closing Date shall occur on or before February 20, 2009; (b) The Administrative Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each Guarantor, together with appropriate financing statements on Form UCC-1; (c) Agent shall have received from each of the following documentsBorrower and the Guarantor, to the extent generally available in form and substance satisfactory to Agent in the relevant jurisdiction, a copy of a certificate or certificates of the Secretary of State (or other appropriate public official) of the jurisdiction of its Permitted Discretionincorporation, duly executeddated reasonably near the Initial Credit Event Date, (i) listing the charters of the Borrower or the Guarantor, as the case may be, and each amendment thereto on file in such document shall be office and certifying that such amendments are the only amendments to the Borrower's or the Guarantor's charter, as the case may be, on file in full force such office, and effect:(ii) stating that the Borrower, or the Guarantor, as the case may be, is duly incorporated and in good standing under the laws of the jurisdiction of its place of incorporation. (i) the Disbursement Letter; (ii) the Fee Letter; (iii) the Officers’ Certificate; (iv) the Intellectual Property Security Agreements; (v) originals of the Pledged Equity and Pledged Notes; (vi) the Perfection Certificate; and (vii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its Subsidiaries; (d) The Administrative Agent shall have received a certificate from the Secretary or certificates of each of the Borrower and the Guarantor, signed on behalf of the Borrower and the Guarantor respectively, by a the Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Initial Credit Party attesting Event Date, certifying as to (A) the absence of any amendments to the resolutions charter of such the Borrower or the Guarantor, as the case may be, since the date of the certificates referred to in paragraph (d) above, (B) a true and correct copy of the bylaws of each of the Borrower or the Guarantor, as the case may be, as in effect on the Initial Credit Party’s Board Event Date, (C) the absence of Directors authorizing its executionany proceeding for the dissolution or liquidation of the Borrower or the Guarantor, deliveryas the case may be, (D) the truth, in all material respects, of the representations and performance of this Agreement and warranties contained in the other Loan Credit Documents to which such Credit Party the Borrower or the Guarantor is a party and authorizing specific officers of such Credit Party to execute the same; (e) Agent shall have received copies of each Credit Party’s Governing Documentsparty, as amendedthe case may be, modified, or supplemented as though made on and as of the Closing Initial Credit Event Date, certified by and (E) the respective Secretary absence, as of the Initial Credit Event Date, of any Default or Event of Default; and (ii) each of such Credit Party;certifications shall be true. (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) The Administrative Agent shall have received a certificate of insurance, together with the endorsements theretoSecretary or an Assistant Secretary of each of the Guarantor and the Borrower certifying the names and true signatures of the officers of Guarantor or the Borrower, as are required by Section 6.7the case may be, authorized to sign, and signing, this Agreement and the form and substance of which shall other Credit Documents to be satisfactory to Agent in its Permitted Discretion;delivered hereunder on or before the Initial Credit Event Date. (ig) The Administrative Agent shall have received an opinion of counselfrom Schiff Hardin & Waite, including certain local counsel in such jurisdictions as required by Agent, for the Credit PartiesGuarantor and the Borrower, each a xxxxxxxxx xxxniox, xxbstantially in the form of Exhibit B hereto and substance satisfactory as to such other matters as any Lender through the Administrative Agent in its Permitted Discretion;may reasonably request. (jh) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) The Administrative Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or such evidence of other actions required by any Governmental Authority in connection with the execution as it and delivery by each such Credit Party its counsel may reasonably require of the Loan Documents or with the consummation termination and payment in full of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAcquisition Facility.

Conditions Precedent to the Initial Extension of Credit. The obligation of the each Lender Group (or any member thereof) to make the its initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in and each Lender (the making of such initial extension of credit by a Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20, 2009; (b) Agent shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorBorrower, together with appropriate financing statements on Form UCC-1duly filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches reflecting the filing of all such financing statements; (cb) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Closing Certificates, (iii) the Officers’ Certificate;Control Agreements, (iv) the Intellectual Property Security Agreements;Disbursement Letter for the initial Advance, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Certificate; andSale and Servicing Agreement, (vii) the Pay-Off Collateral Custodian Fee Letter, together and (viii) a file-stamped copy of a UCC-1 financing statement naming Horizon as seller and Borrower as buyer, filed with UCC termination statements the Delaware Secretary of State to perfect the transfer and other documentation evidencing the termination by Existing Lender sale of its Liens in and Notes Receivable to Borrower from time to time pursuant to the properties Sale and assets of Borrower and its Subsidiaries;Servicing Agreement. (dc) Agent shall have received a certificate Secretary’s Certificates from the Secretary (or equivalent) of each Credit Party attesting of (a) Borrower, (b) Horizon, and (c) Horizon Management, dated as of the Closing Date, in form and substance satisfactory to the resolutions Agent, certifying that (i) a copy of such Credit PartyPerson’s Board Certificate of Directors Formation and Operating Agreement or Certificate or Articles of Incorporation (as applicable) and any other Governing Documents, as well as all amendments thereto, are attached, (ii) other than as reflected by the documents delivered pursuant to (i) above, no action or proceeding for the amendment of such Person’s Governing Documents has been taken or is presently contemplated, (iii) attached is a complete and correct copy of an authorization by or resolution of such Person’s members, managers or board of directors (as applicable) authorizing its such Person’s execution, delivery, delivery and performance of this the Loan Agreement and the other Loan Documents to which such Credit Party it is a party and authorizing specific officers the transactions contemplated thereby, and (iv) a specimen signature of each manager, member or officer of such Credit Party Person who is authorized to execute the same; (e) Agent shall have received copies Loan Documents on behalf of such Person is included and that each Credit Party’s Governing Documents, as amended, modified, or supplemented of such individuals is duly qualified as of the Closing Date, certified by the respective Secretary of such Credit Party; (f) Agent shall have received a recent certificate of status with respect to each Credit Party, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit Party, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (i) Agent shall have received an opinion of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts); (k) Agent shall have received Borrower’s Closing Date Business Plan; (l) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (m) Each Credit Party shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgent, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20July 31, 20092001; (b) Agent shall have received a UCC Filing Authorization Letterall financing statements required by Agent, duly executed by Borrower the applicable Borrowers, and each Guarantor, together with appropriate Agent shall have received confirmation of the filing of all such financing statements on Form UCC-1statements; (c) Agent shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionAgent, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Intellectual Property Security Agreement, (ii) the Fee Disbursement Letter;, (iii) the Officers’ Certificate;Due Diligence Letter, (iv) the Intellectual Property Security Agreements;Fee Letter, (v) originals of the Pledged Equity and Pledged Notes;Officers' Certificate, (vi) the Perfection Certificate; Stock Pledge Agreement, (vii) Stock pledge agreements, in form and content satisfactory to Agent in its Permitted Discretion, executed by the appropriate Borrowers or Domestic Subsidiaries, pledging 65% of the Stock of the Foreign Subsidiaries as collateral for the Obligations, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank, (viii) a general continuing guaranty of the Obligations executed and delivered by 3D Holdings, LLC, a Delaware limited liability company, to Agent and a security agreement executed and delivered by 3D Holdings, LLC, and Agent pursuant to which 3D Holdings, LLC, shall grant to Agent, for the benefit of the Lender group, a security interest in substantially all of its assets, as well as appropriate documents to perfect the security interests granted by 3D Holdings, LLC, (ix) the Intercompany Subordination Agreement, and (viix) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by Existing Lender of its Liens in and to the properties and assets of Borrower and its SubsidiariesBorrowers; (d) Agent shall have received a certificate from the Secretary of each Credit Party Borrower attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and Agreement, the other Loan Documents to which such Credit Party Borrower is a party and the interest rate swap agreement required in Section 3.1(k) and authorizing specific officers of such Credit Party Borrower to execute the same; (e) Agent shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent shall have received recent certificates of status with respect to each Credit PartyBorrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionAgent; (i) Agent shall have received Collateral Access Agreements with respect to Borrowers' location in Grand Junction, Colorado; (j) Agent shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretion; (j) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Agent; (k) Agent shall have received Borrower’s Closing Date Business Plansatisfactory evidence that Borrowers have entered into an interest rate swap agreement for an amount equal to $7,500,000 for a term of not less than 3 years with a financial institution acceptable to the Agent, in its Permitted Discretion; (l) Borrower Agent shall have paid received satisfactory evidence that Borrowers have obtained foreign credit insurance issued by insurance companies, and containing terms and conditions, acceptable to Agent, in its Permitted Discretion; (m) Agent's legal counsel shall have received the searches listed on Schedule 3.1(m); (n) Borrowers shall pay all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mo) Each Credit Party Agent shall have received a certificate of the chief executive officer or chief financial officer of Parent and Tiger Deals, Inc., dated the Closing Date, certifying that (i) the Tender Offer shall have expired and there shall have been validly tendered thereunder and not withdrawn not less than 67% of the common Stock of DTM Corporation and that Tiger, subject to receipt of the financing contemplated herein, will purchase such shares of common stock in accordance with applicable law and the terms of the Merger Agreement and the other documentation related to the Acquisition previously approved by Agent, without modification or waiver of any material term (except to the extent such waiver or modification would not materially impair the prospects of repayment of the Obligations by Borrowers or not materially impair the total amount of Collateral which is to secure the Obligations), and (ii) all conditions to the consummation of the Tender Offer as set forth in the Merger Agreement have been (or upon the making of the initial Advance and Term Loan hereunder will concurrently be) fulfilled or waived by the parties thereto, which waiver, in the case of any waiver by Parent or Tiger Deals, Inc., shall be given with the reasonable consent of Agent in the event that the waiver would materially impair the prospects of repayment of the Obligations by Borrowers or materially impair the total amount of Collateral which is to secure the Obligations, and which conditions, in the case of conditions to be fulfilled to the satisfaction of the Parent and with respect to which the failure to fulfill the condition would materially impair the prospects of repayment of the Obligations by Borrowers or materially impair the total amount of Collateral which is to secure the Obligations, shall be fulfilled to the satisfaction of Agent, in its Permitted Discretion; (p) Agent shall have received a certificate of the chief executive officer or chief financial officer of Parent, dated the Closing Date, certifying that (i) the cash portion of the purchase price paid by Tiger in the Tender Offer will not exceed $5.80 per share and (ii) the fees and expenses relating to the Tender Offer and Merger will be substantially consistent with the amount set forth in the table of sources and uses heretofore furnished to the Agent; (q) The chief executive officer or chief financial officer of Parent shall deliver to Agent (i) a true and complete copy of the Merger Agreement (which shall include copies of all amendments, schedules, exhibits and other attachments thereto), together with true and complete copies of each material document, certificate and opinion referred to in or delivered in connection therewith, and (ii) a certificate of the chief executive officer or chief financial officer of Parent, dated the Closing Date certifying that (x) the Merger Agreement and all related documentation have been duly executed and delivered by each of the parties thereto and are in full force and effect on the Closing Date, and (y) the provisions of the Merger Agreement and such related documentation have not been amended, waived or otherwise modified, or executed and delivered in forms other than the forms delivered to the Agent prior to the date hereof, other than amendments, waivers, modifications of alternative forms that do not materially impair the prospects of repayment of the Obligations or materially impair the total amount of Collateral which is to secure the Obligations; (r) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrowers of the this Agreement or any other Loan Documents Document or with the consummation of the transactions contemplated hereby and thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (s) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted Discretion.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances Advance, issue Letters of Credit (or otherwise to extend any credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in its Permitted DiscretionAgents, of each of the conditions precedent set forth below: (a) the Closing Date shall occur on or before February 20March 25, 20092005; (b) Collateral Agent shall have received a UCC Filing Authorization Letter, duly executed by each Borrower and each GuarantorParty, together with appropriate initial financing statements on Form UCC-1duly filed in such office or offices as may be necessary or, in the opinion of any Agent, desirable to perfect the Collateral Agent’s Liens in and to the Collateral; (c) Agent Agents shall have received each of the following documents, in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgents, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Control Agreements, (ii) the Fee Disbursement Letter;, (iii) the Officers’ Certificate;Fee Letter, (iv) the Intellectual Property Security Agreements;Foreign Loan Documents, (v) originals of the Pledged Equity Pledge and Pledged Notes;Security Agreement, together with such possessory collateral and other documents (including perfection certificates) as shall be required to be delivered thereunder, (vi) the Perfection Certificate; andIntellectual Property Security Agreement (vii) the Intercompany Subordination Agreement, (viii) the Intercreditor Agreement, (ix) the Lender Side Letter Agreements, (x) the Mortgages, (xi) the Officers’ Certificate, (xii) the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination by such documents as shall be necessary to release all liens in favor of Existing Agent or any Existing Lender of its Liens in and to the properties and assets of Borrower Parties and its their Subsidiaries, (xiii) issuer control agreements in form and substance satisfactory to Agents, with respect to all Stock pledged to Collateral Agent which is uncertificated, and; (xiv) amendments to certain security documents executed and delivered by Borrower Parties in favor of Indenture Trustee and subordination agreements with respect to mortgages executed in favor of Indenture Trustee, in each case, in form and substance satisfactory to Agents; (d) Agent Agents shall have received a certificate from the Secretary of each Credit Borrower Party (i) attesting to the resolutions of such Credit Borrower Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Borrower Party is a party and authorizing specific officers of such Credit Borrower Party to execute the samesame and (ii) certifying the names and true signatures of the officers of such Borrower Party who have signed each such Loan Document; (e) Agent Agents shall have received copies of each Credit Borrower Party’s Governing Documents, as amended, modified, or supplemented as of the Closing Date, certified by the respective Secretary of such Credit Borrower Party; (f) Agent Agents shall have received a recent certificate of status with respect to each Credit Borrower Party, dated within 10 Business Days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit Borrower Party, which certificate shall indicate that such Credit Borrower Party is in good standing or similar status in such jurisdiction; (g) Agent Agents shall have received recent certificates of status with respect to each Credit Borrower Party, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit Borrower Party) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Borrower Party is in good standing or similar status in such jurisdictions; (h) Collateral Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.7, the form and substance of which shall be reasonably satisfactory to Agent in its Permitted DiscretionAgents; (i) Collateral Agent shall have received an opinion Collateral Access Agreements with respect to each of counsel, including certain local counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted Discretionlocations set forth on Schedule 3.1(i); (j) Borrower Agents shall have delivered received opinions of Borrower Parties’ counsel (including foreign counsel with respect to the Foreign Loan Documents) in form and substance reasonably satisfactory to Agents; (k) Agents shall have received satisfactory evidence (including a Borrowing Base Certificatecertificate of a Responsible Financial Officer of HoldCo) that all tax returns required to be filed by Borrower Parties and their Subsidiaries have been timely filed (giving effect to any applicable statute of limitations) and all taxes upon Borrower Parties and their Subsidiaries or their properties, dated as of the Closing Date based on the most recent completed fiscal monthassets, income, and Borrower franchises (including Real Property taxes, sales taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (l) Borrowers shall have opening the Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower Borrowers on the Closing Date under this Agreement or the other Loan Documents Documents; (m) Agents shall have completed their business, legal, and net collateral due diligence, including a collateral audit and review of Borrower Parties’ and their Subsidiaries’ books and records and verification of Borrower Parties’ representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agents; (n) Agents shall have reviewed and shall be reasonably satisfied with all material agreements and customer contracts of Borrower Parties and their Subsidiaries; (o) Agents shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be reasonably satisfactory to Agents and Agents shall have received evidence satisfactory to them that the judgment referred to in Section 3.2(c) has been paid in full; (p) Agents shall have received completed reference checks with respect to Borrower Parties’ senior management, the results of which are reasonably satisfactory to Agents; (q) Agents shall have received real estate appraisals on the Real Property Collateral performed by a valuation firm acceptable to Agents, the results of each of which are reasonably satisfactory to Agents; (r) Agents shall be satisfied that Borrower Parties’ accounts payable aged in excess and unpaid expenses are at a level consistent with Borrower Parties’ historical practice; (s) Agents shall have received Borrower Parties’ Closing Date Business Plan, the results of 75 days from which shall be satisfactory to Agents; (t) Borrowers shall have delivered to Agents a report listing all Collateral and the invoice date or 45 days from value thereof as of December 31, 2004, and such report shall be satisfactory to Agents; (u) Agents shall have received and be satisfied with the due dateaudited financial statements of the Consolidated Group for the fiscal year ended December 26, held checks and overdrafts2003, together with an unqualified auditors opinion (without explanatory paragraphs); (kv) Agent Agents shall have received Borrower’s Closing Date Business Planand be satisfied with (i) the unaudited financial statements of the Consolidated Group for the fiscal quarter ended September 24, 2004 and (ii) the preliminary income statement and statement of cash flows of the Consolidated Group for the 2004 fiscal year and the balance sheet of the Consolidated Group as of the last day of the 2004 fiscal year; (li) Except as specifically described on Schedule 5.11, (A) no Material Adverse Change shall have occurred since December 26, 2003; and (B) Agents shall not have become aware after December 26, 2003 of any information or other matter affecting Borrower Parties and their Subsidiaries, the assumptions relating to projected financial performance of Borrower Parties and their Subsidiaries or the transactions contemplated hereby that in the judgment of Agents is inconsistent in a material and adverse manner with any information (including any matter relating to financial models and underlying assumptions relating to the projected financial performance of Borrower Parties and their Subsidiaries) or other matter disclosed to Agents prior to December 26, 2003; and (ii) there shall not have occurred a material disruption of or material adverse change in financial, banking or capital market conditions; (x) Borrowers shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (my) Each Credit Party Collateral Agent shall have received mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property Collateral listed on Schedule R-1 issued by a title insurance company satisfactory to Agents (each a “Mortgage Policy” and one or more the “Mortgage Policies”) in amounts satisfactory to Agents assuring Agents that the Mortgages on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies otherwise shall be in form and substance reasonably satisfactory to Agents. In addition, Borrowers shall have paid to said title insurance company all expenses and premiums of said title insurance company in connection with the issuance of the Mortgage Policies and in addition shall, to the extent required, have paid to said title insurance company an amount equal to the recording, stamp, mortgage and/or intangibles taxes payable in connection with the recording of the Mortgages in the appropriate county recording offices; (z) Agents shall have (1) received such documents as required under Section 5.14 hereof, and (2) had the opportunity to conduct such environmental due diligence which they in their sole discretion deem necessary and the results thereof shall be reasonably acceptable to Agents; (aa) Agents shall have received evidence that all Liens created by the Borrower Parties (other than pursuant to the Loan Documents and Permitted Liens) have been discharged or, to the extent not discharged, Agents shall have received appropriate executed Uniform Commercial Code termination statements or other documents terminating such Liens; (bb) There shall exist no claim, action, suit, investigation, litigation or proceeding, pending or threatened in any court or before any Governmental Authority which relates to the transactions contemplated by the Loan Documents, or which would reasonably be expected to adversely affect (A) the ability of Borrower Parties to execute, deliver and perform their respective obligations under the Loan Documents, or (B) the ability of Lenders to enforce the Loan Documents; (cc) Agents shall have received satisfactory evidence that the following entities shall have been dissolved: Chirllu, Inc., Xxxxxx Xxxxxxx Capital & Finance Corporation, Xxxxxx Xxxxxxx China, Inc., Xxxxxx Xxxxxxx Energy India, Inc., Xxxxxx Xxxxxxx Vietnam Private Ltd., Xxxxxx Xxxxxxx Enviresponse, Inc., FW Mortshal, Inc., Xxxxxxx Consulting Corporation, FW Technologies Holding, LLC, and New Ashford, Inc.; (dd) Borrowers and each of their Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower Parties of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (see) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionAgents.

Conditions Precedent to the Initial Extension of Credit. The obligation of the Lender Group (or any member thereof) to make the initial Advances (or otherwise to extend any extension of credit provided for hereunder), is subject to the fulfillment, to the satisfaction of Agent in Lender (the making of such initial extension of credit by Lender being conclusively deemed to be its Permitted Discretionsatisfaction or waiver of the following), of each of the following conditions precedent set forth belowprecedent: (a) the Closing Date shall occur on or before February 20May 6, 20092004; (b) Agent Lender shall have received a UCC Filing Authorization Letter, duly executed by Borrower and each GuarantorBorrower, together with appropriate financing statements on Form UCC-1duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender's Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements; (c) Agent Lender shall have received each of the following documents, in form and substance satisfactory to Agent in its Permitted DiscretionLender, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter;Cash Management Agreements, (ii) the Fee Letter;Control Agreements, (iii) the Officers’ Certificate;Copyright Security Agreement, (iv) the Intellectual Property Security Agreements;Disbursement Letter, (v) originals of the Pledged Equity and Pledged Notes;Fee Letter, (vi) the Perfection Officers' Certificate; and, (vii) the Pay-Off LetterPatent Security Agreement, (viii) the Securities Pledge Agreement, together with UCC termination statements and other documentation evidencing all certificates representing the termination by Existing Lender shares of its Liens Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in and to blank (or equivalent, in the properties and assets case of Borrower and its Subsidiariesany non-U.S. Subsidiary whose Stock is pledged), and (ix) the Trademark Security Agreement; (d) Agent Lender shall have received a certificate from the Secretary of each Credit Party Borrower (i) attesting to the resolutions of such Credit Party’s Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party Borrower is a party and party, (ii) authorizing specific officers of such Credit Party Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower; (e) Agent Lender shall have received copies of each Credit Party’s Borrower's Governing Documents, as amended, modified, or supplemented as of to the Closing Date, certified by the respective Secretary of such Credit PartyBorrower; (f) Agent Lender shall have received a recent certificate of status with respect to each Credit PartyBorrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Credit PartyBorrower, which certificate shall indicate that such Credit Party Borrower is in good standing in such jurisdiction; (g) Agent Lender shall have received recent certificates of status with respect to Borrower, each Credit Partydated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Credit PartyBorrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Credit Party Borrower is in good standing in such jurisdictions; (h) Agent Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.76.8, the form and substance of which shall be satisfactory to Agent in its Permitted DiscretionLender; (i) Agent [Intentionally Omitted]; (j) Lender shall have received Collateral Access Agreements with respect to the following locations: (i) 0000 Xxxxx 0000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000 and (ii) 000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, XX 00000; (k) Lender shall have received an opinion of counsel, including certain local Borrower's counsel in such jurisdictions as required by Agent, for the Credit Parties, each in form and substance satisfactory to Agent in its Permitted DiscretionLender; (jl) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (m) Borrower shall have delivered a Borrowing Base Certificate, dated as of the Closing Date based on the most recent completed fiscal month, and Borrower shall have opening Required Availability of $15,000,000 after giving effect to the initial extensions of credit hereunder and the payment of all fees and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents and net of accounts payable aged in excess of 75 days from the invoice date or 45 days from the due date, held checks and overdrafts)Documents; (kn) Agent Lender shall have completed its business, legal, and collateral due diligence, including (i) a collateral audit and review of Borrower's and its Subsidiaries' books and records and verification of Borrower's representations and warranties to Lender, the results of which shall be satisfactory to Lender, and (ii) an inspection of each of the locations where Borrower's and its Subsidiaries' Inventory is located, the results of which shall be satisfactory to Lender; (o) Lender shall have received completed reference checks with respect to Borrower's senior management, the results of which are satisfactory to Lender in its sole discretion; (p) Lender shall have received an appraisal of the Liquidation Percentage applicable to Borrower's and its Subsidiaries' Inventory, the results of which shall be satisfactory to Lender; (q) A takeover audit shall have been conducted by or on behalf of Lender, the results of which shall be reasonably satisfactory to Lender; (r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender; (s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements; (t) Lender shall have satisfactorily reconciled Borrower's projected cash flow statement for 2004; (u) Lender shall have received Borrower’s 's Closing Date Business Plan, the results of which shall be satisfactory to Lender; (lv) Borrower shall have paid all documented Lender Group Expenses incurred in connection with the transactions evidenced by this Agreement; (mw) Each Credit Party Lender shall have received satisfactory evidence of the dissolution of Xxxx.xxx, Inc., a Washington corporation; (x) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by each such Credit Party Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; (n) Agent shall have received Collateral Access Agreements from each landlord or bailee of any distribution center of the Credit Parties and of any landlord or bailee with respect to real property located in the states of Pennsylvania, Washington, West Virginia or Texas; (o) Agent shall have completed its business, legal, and collateral due diligence, including (i) a commercial finance exam and review of Borrower’s and its Subsidiaries books and records and verification of Borrower’s representations and warranties to the Lender Group, the results of which shall be reasonably satisfactory to Agent, (ii) an appraisal conducted by an appraisal firm selected by Agent the results of which shall be reasonably satisfactory to Agent and (iii) to the extent required by Agent an inspection of any of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be reasonably satisfactory to Agent; (p) Borrower shall have received prior to the Closing Date a cash equity investment on terms reasonably satisfactory to Agent in an amount not less than $20,000,000 from Sponsor or a Sponsor Affiliate which cash equity investment shall remain in the Borrower on and after the Closing Date and Agent shall otherwise be satisfied with the sources and uses for the transactions contemplated to occur on the Closing Date and with the capital structure of the Borrower and its Subsidiaries; (q) Agent shall have received Cash Management Agreements relating to the Concentration Account maintained by each Credit Party with Xxxxx Fargo Treasury Management, in accordance with the terms and conditions set forth herein, the form and substance of which shall be satisfactory to Agent in its Permitted Discretion; (r) Agent shall have received all Credit Card Processor agreements; and (sy) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent in its Permitted DiscretionLender.