Common use of First Borrowing Clause in Contracts

First Borrowing. On the Closing Date: (a) The Agent shall have received a favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.

First Borrowing. On The obligations of the Closing DateLenders to make the initial Loans and of the Issuing Banks to issue the initial Letters of Credit hereunder shall be subject to the satisfaction of the following conditions: (a) The Administrative Agent shall have received a favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, certificate dated the Closing Effective Date and addressed to signed by a Financial Officer of Millennium America, confirming compliance with the Banks, to the effect conditions precedent set forth in Exhibit D heretoparagraphs (b), (c) and the Borrower hereby instructs such counsel to deliver such opinion to the Agent(d) of Section 4.01. (b) All legal matters incident to this Agreement The Administrative Agent shall have received for the benefit of each Lender a signed copy of the favorable written opinion of (i) C. Xxxxxxx Xxxxxxx, Vice President--Legal of Millennium America and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx for Millennium, (ii) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for Millennium America and Millennium and (iii) local counsel in each jurisdiction in which any material Foreign Subsidiary whose Equity Interests are to be pledged under the Pledge Agreements is located, each dated the Effective Date and addressed to the Lenders and substantially in the forms set forth in Exhibits C-1, C-2 and C-3 respectively, and satisfactory to Cravath, Swaine & Xxxxx, counsel for the Administrative Agent. (c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments theretoas amended through the Effective Date, of each of Millennium America, Millennium, MICL and the Borrowerother Loan Parties, certified as of a recent date by the relevant Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower each such corporation dated the Closing Effective Date and certifying (AA)(1) that attached thereto is a true and complete copy of the code by-laws of regulations of the Borrower such corporation, as in effect on the Closing Date date of such certificate and at all times (2) that the certificate or articles of incorporation of such corporation have not been amended since a date prior to the date of the resolutions described in certification thereto furnished pursuant to clause (Bi) belowabove and (3) as to the incumbency and specimen signature of each officer of such corporation executing this Agreement, the other Loan Documents or any other instrument or document delivered in connection herewith and a certification by another officer of such Loan Party as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii), and (B) that attached thereto is a true true, correct and complete copy of resolutions duly adopted by the Board of Directors of the Borrower such corporation authorizing the execution, delivery and performance of this Agreement and the other Loan Documents and the borrowings hereunder, Transactions and that such said resolutions have not been modified, rescinded amended or amended revoked and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since effect on the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) abovesuch certificate; and (iviii) such other documents as the Banks Administrative Agent or their counsel or Xxxxxxx Xxxxxxx Cravath, Swaine & XxxxxxxxXxxxx, counsel for the Administrative Agent, may reasonably request. (d) The Administrative Agent shall have received a certificate from counterparts of this Agreement which, when taken together, bear the Borrower, dated signatures of all the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01parties hereto. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Administrative Agent shall have received all Fees fees and other amounts due and payable on or prior to the Closing DateEffective Date as provided in the fee letter agreement dated May 11, 2001, between Millennium America and the Administrative Agent, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or any other Loan Document. (f) The Administrative Agent shall have received copies of the Senior Unsecured Note Indenture, certified by a Financial Officer as complete and correct. (g) The issuance and sale of the Senior Unsecured Notes shall have been, or shall simultaneously with the initial borrowing under this Agreement be, completed and Millennium America shall have received gross cash proceeds of not less than $200,000,000 therefrom. (h) The Collateral Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Effective Date and signed by a Financial Officer of Millennium America, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.01 or have been released. (i) All legal matters incidental to this Agreement and the borrowings hereunder shall be satisfactory to the Lenders and to Cravath, Swaine & Xxxxx, counsel for the Administrative Agent. (j) The commitments of the lenders under the Existing Credit Agreement shall have been terminated and the principal of and interest on all loans and all other obligations accrued or owing thereunder shall have been, or shall simultaneously with the initial Credit Event hereunder be, paid in full.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State (or in the case of the Parent, a Responsible Officer), Provincial Registrar or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower or constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above (or in the case of a person organized under the Federal or state laws of Canada, since the date of the certified articles of incorporation furnished pursuant to (i) above), and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) Each Lender shall have received its Revolving Credit Note and Term Note duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Agent shall have received the Security Documents including, without limitation, the Mortgages together with title insurance (or, as appropriate, title opinions) in form, scope and warranties amount satisfactory in all respects to the Agent and certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors. (f) The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the Lenders of a UCC Reporter Service (or similar service in Canada), listing all effective financing statements which name as debtor any Borrower, any Guarantor or any Grantor and which are filed in the appropriate offices in the states or other applicable jurisdictions in which are located the chief executive office and other operating offices of such person, together with copies of such financing statements or of the security agreements to which such filings relate. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have received termination statements in form and substance satisfactory to it. (g) Each document (including, without limitation, each Uniform Commercial Code financing statement or statement under the Personal Property Security Law) required by law or reasonably requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority perfected Lien in the Collateral (subject to the Liens permitted by Section 7.01) shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation. (h) The Agent shall have received the results of a search of tax and other Liens, and judgments and of the Uniform Commercial Code or Personal Property Security Law or comparable filings made with respect to each of the Borrowers and each Grantor in the jurisdictions in which the Borrowers are doing business and/or in which any Collateral is located, and in which Uniform Commercial Code or Personal Property Security Law filings have been made against each Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above. (i) The Lenders and the Agent shall have received and determined to be in form and substance satisfactory to them: (i) the most recent (dated within seven (7) days of the Closing Date) schedule and aging of accounts receivable and inventory designations of the Borrowers; (ii) evidence that the Borrowers have combined availability (that is, the sum of (x) Availability and (y) availability under the Canadian Credit Agreement) after giving effect to both the Revolving Credit Loans made on the Closing Date and extensions of credit under the Canadian Credit Agreement on the Closing Date of not less than $16,000,000; (iii) evidence that there has been entered a final non-appealable order of confirmation consistent with the Plan of Reorganization and that unless waived by the Agent all conditions precedent to the effectiveness of the Plan of Reorganization have been satisfied; (iv) a copy of a field examination of the Borrowers' books and records; (v) evidence of the compliance by the Borrowers with Sec tion 6.03 hereof; (vi) the financial statements described in Section 4.07 hereof, together with a draft of the audited financial statements for the Fiscal Year ended December 31, 1996; (vii) evidence that the Transactions are in material compliance with all material applicable laws and regulations; (viii) the Guarantees (Canadian) and the Guarantee of the Obligations by Trademark U.S.; (ix) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement, the Commitment Letter or otherwise; (x) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each of the Grantors and Guarantors) to the Transactions have been received; (xi) copies of all major customer, supplier contracts and employment agreements with respect to each Borrower; (xii) except as set forth in Section 3.06 Schedule 4.05 annexed hereto, evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Parent and subsidiaries since December 31, 1995; (xiii) evidence of the repayment in full of exiting credit arrangements and the termination of all commitments to lend thereunder, and the termination of all security interests securing such indebtedness as required under paragraph (f) above, all as set forth in the Plan of Reorganization; and (xiv) evidence that except as disclosed in the schedule delivered pursuant to (k)(i) below there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or to the knowledge of the Loan Parties threatened against or affecting any of the Loan Parties or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions. (j) The Agent and the Lenders shall be true have had the opportunity, if they so choose, to examine the books of account and correct other records and files of the Borrowers, subsidiaries, the Grantors and the Guarantors and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables, payment of payroll taxes and accounts payable and formulation of an opening Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Agent and Lenders in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (gk) The Agent shall have received and had the opportunity to review and determine to be in form and substance satisfactory to it: (i) a schedule of disputed claims relating to the Plan of Reorganization and an analysis of the expected disposition thereof; (ii) copies of all Fees real property lease agreements entered into by any of the Borrowers and Guarantors, together with appropriate landlord and/or mortgagee waivers or rent escrow arrangements with the Agent (covering at least six months rent); and (iii) copies of all loan agreements, notes and other amounts due and payable on documentation evidencing Indebtedness for borrowed money of any of the Borrowers, their subsidiaries, Grantors or prior Guarantors which is to remain outstanding pursuant to the Closing DatePlan of Reorganization, including the Senior Secured Notes.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of EXHIBIT C hereto, dated the Closing Date and Date, addressed to the Banks, Lenders and satisfactory to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Administrative Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from such Secretary of State or other official and from the Borrower Secretary of State or other official of each state in which it is qualified to do business, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Administrative Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Administrative Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) Each Lender shall have received its Revolving Credit Note, each duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Administrative Agent shall have received (i) such amendments to, or confirmations of (as requested by the Agents), the Security Documents existing on the Closing Date, (ii) such additional Security Documents (as requested by the Agents, including, without limitation, an Assignment of Contract with respect to each Management Agreement and warranties set forth Shares Acquisition Agreement in Section 3.06 shall be true effect on the Closing Date (to the extent not previously delivered to the Administrative Agent)), (iii) to the extent not previously delivered to the Administrative Agent, certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors and correct in all material respects(iv) confirmations of the Guarantees, including, without limitation, the Holdings Guarantee. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Syndication Agent shall have received duly executed documentation either evidencing certified copies of requests for copies or necessary for (i) information on Form UCC-11 or certificates satisfactory to the Syndication Agent of a UCC Reporter Service from April, 1999, listing all effective financing statements which name as debtor DCA, or any Guarantor or any Grantor, in California or Florida, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Syndication Agent shall have received termination of the Existing Credit Agreement statements in form and each other agreement related thereto and (ii) the cancelation of all commitments thereundersubstance satisfactory to it. (g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or requested by the Syndication Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for its own benefit and for the benefit of the Lenders a first priority perfected security interest in the Collateral acquired after the closing under the 1999 Credit Agreement shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Syndication Agent shall have received all Fees an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation. (h) The Syndication Agent shall have received the results of a search of tax and other amounts due Liens, and payable on or prior judgments and of the Uniform Commercial Code filings made with respect to DCA and each Grantor from April, 1999 in which Uniform Commercial Code filings, if any, have been made against DCA, each Guarantor and each Grantor pursuant to paragraph (g) above. (i) The Lenders and the Agents shall have received and determined to be in form and substance satisfactory to them: (i) the financial statements described in Section 4.07 hereof; (ii) evidence that the Transactions are in compliance with all applicable laws and regulations; (iii) evidence of payment of all fees owed to the Closing DateAdministrative Agent and Syndication Agent and the Lenders by the Borrowers under this Agreement or otherwise; (iv) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each of the Grantors and Guarantors) to the Transactions have been received; (v) evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Borrowers and subsidiaries since December 31, 1998; and (vi) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting any Borrowers or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions. (j) Each Agent shall have received and had the opportunity to review and determine to be in form and substance satisfactory to it, if applicable, copies of an amendment to the terms and provisions of the Convertible Subordinated Note in form and substance satisfactory to the Agents.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder are subject to the following additional conditions precedent: (a1) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrower and Holdings substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c2) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or other constitutive documents, including all amendments theretoin each case as amended to date, of each of the Borrower, the corporate or partnership Grantors certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each of the Borrower and the corporate Grantors, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.specimen

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion opinions of Xxxxx Paul, Hastings, Janoxxxx & Xxxxxxxxx LLPXalkxx XXX, counsel for the BorrowerLoan Parties, and of special Colorado and Illinois counsel for the Loan Parties, each dated the Closing Date and Date, addressed to the Banks, to the effect set forth Lenders and in Exhibit D hereto, form and the Borrower hereby instructs such counsel to deliver such opinion substance reasonably satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the Borrower, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower Borrower, each Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower or constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.1 hereof and the conditions set forth in this Section 5.2. (d) Each Lender shall have received its Revolving Credit Note duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.4 hereof. (e) The representations Agent shall have received the Security Documents in form, scope and warranties set forth in Section 3.06 shall be true and correct amount satisfactory in all material respectsrespects to the Agent and certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors. (f) Concurrently with The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the transactions contemplated hereby on the Closing DateLenders of a UCC Reporter Service, listing all effective financing statements which name as debtor the Borrower, any Guarantor or any Grantor and which are filed in the appropriate offices in the states or other applicable Banks jurisdictions in which are located the chief executive office and other operating offices of such person, together with copies of such financing statements or of the security agreements to which such filings relate. With respect to any Liens not permitted pursuant to Section 7.2 hereof, the Agent shall have executed a side letter whereby all competitive loans under received termination statements in form and substance satisfactory to it. (g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or reasonably requested by the Existing Credit Agreement shall be deemed Agent to be Competitive Loans hereunderfiled, registered or recorded in order to create in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority perfected Lien in the Collateral (subject to the Liens permitted by Section 7.2) shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Borrower Agent shall have repaid received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation. (h) The Agent shall have received the results of a search of tax and other Liens, and judgments and of the Uniform Commercial Code filings made with respect to the Borrower and each Grantor in full all other amounts due under the Existing Credit Agreement jurisdictions in which the Borrower and under each other agreement related theretoGrantor are doing business and/or in which any Collateral is located, and in which Uniform Commercial Code filings have been made against the Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above. (i) The Lenders and the Agent shall have received duly executed documentation either evidencing or necessary for and determined to be in form and substance satisfactory to them: (i) the termination a schedule and aging of accounts receivable of the Existing Credit Agreement and each other agreement related thereto and (ii) Borrower dated as of the cancelation most recent end of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or month prior to the Closing Date; (ii) evidence that the Borrower has Availability after giving effect to the Revolving Credit Loans made on the Closing Date of not less than $25,000,000 (without giving effect to the Aetna Letters of Credit and that the reimbursement exposure under such Aetna Letters of Credit does not exceed $21,000,000); (iii) a copy of a field examination of the Borrower's books and records; (iv) a copy of, or a certificate as to coverage under, the insurance policies required by Section 6.3 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a "standard" or "New York" lender's loss payable endorsement and to name the Agent as additional insured, in form and substance satisfactory to the Agent; (v) the financial statements described in Section 4.7 hereof; (vi) evidence of payment of all fees owed to the Agent, the Lenders by the Borrower under this Agreement, the Securities Exchange Agreement or otherwise; (vii) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrower and each of the Grantors and Guarantors) to the Transactions have been received; (viii) copies of all material customer, supplier contracts and employment and non-compete agreements with respect to the Parent, the Borrower and the Subsidiaries which are material to the Parent's, the Borrower's and such Subsidiaries' business taken as a whole; (ix) a certificate of the Chief Financial Officer of the Borrower, dated the Closing Date, stating that there has been no material adverse change in the business, assets, operations or financial condition of the Parent and its Subsidiaries since December 31, 1997; and (x) evidence of the repayment in full of existing senior credit arrangements and the termination of all commitments to lend thereunder, and the termination of all security interests securing such indebtedness (other than the Bridge Notes) as required under paragraph (f) above. (j) The Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files of the Borrower, its Subsidiaries, the Grantors and the Guarantors and to make copies thereof, to conduct customer, payor and supplier checkings and to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables, payment of payroll taxes and accounts payable and formulation of an opening Borrowing Base, and the results of such examination, checkings and audit shall have been satisfactory to the Agent and Lenders in all material respects.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of EXHIBIT C hereto, dated the Closing Date and Date, addressed to the Banks, Lenders and satisfactory to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Administrative Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from such Secretary of State or other official and from the Borrower Secretary of State or other official of each state in which it is qualified to do business, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Administrative Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Administrative Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) Each Lender shall have received its Revolving Credit Note (which Note shall replace the "Revolving Credit Note" issued in connection with the Original Credit Agreement, such replaced Notes to be no longer of any force or effect and to be returned to the Borrowers by the Lenders holding same, marked "canceled" promptly after the Closing Date), each duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Administrative Agent shall have received (i) such amendments to, or confirmations of (as requested by the Agents), the Security Documents existing on the Closing Date, (ii) such additional Security Documents (as requested by the Agents, including, without limitation, an Assignment of Contract with respect to each Management Agreement and warranties set forth Shares Acquisition Agreement in Section 3.06 shall be true effect on the Closing Date (to the extent not previously delivered to the Administrative Agent)), (iii) to the extent not previously delivered to the Administrative Agent, certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors and correct in all material respects(iv) confirmations of the Guarantees, including, without limitation, the Holdings Guarantee. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Syndication Agent shall have received duly executed documentation either evidencing certified copies of requests for copies or necessary for (i) information on Form UCC-11 or certificates satisfactory to the termination Syndication Agent of a UCC Reporter Service, listing all effective financing statements which name as debtor DCA, or any Guarantor or any Grantor, in each case, not in existence as of the Existing Credit Agreement Original Closing Date, and each which are filed in the appropriate offices in the States in which are located the chief executive office and other agreement related thereto operating offices of such person, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Syndication Agent shall have received termination statements in form and (ii) the cancelation of all commitments thereundersubstance satisfactory to it. (g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or requested by the Syndication Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for its own benefit and for the benefit of the Lenders a first priority perfected security interest in the Collateral acquired after the Original Closing Date shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Syndication Agent shall have received all Fees an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation. (h) The Syndication Agent shall have received the results of a search of tax and other Liens, and judgments and of the Uniform Commercial Code filings made with respect to DCA and each Grantor (not in existence as of the Original Closing Date) in the jurisdictions in which DCA and such Grantors are doing business and/or in which any Collateral is located, and in which Uniform Commercial Code filings have been made against DCA, each Guarantor (not in existence as of the Original Closing Date) and each Grantor (not in existence as of the Original Closing Date) pursuant to paragraph (g) above. (i) The Lenders and the Agents shall have received and determined to be in form and substance satisfactory to them: (i) a copy of a field examination of DCA's books and records; (ii) evidence of the compliance by the Borrowers with Section 6.03 hereof; (iii) the financial statements described in Section 4.07 hereof; (iv) evidence that the Transactions are in compliance with all applicable laws and regulations; (v) evidence of payment of all fees owed to the Administrative Agent and Syndication Agent and the Lenders by the Borrowers under this Agreement, the Letter of Interest or otherwise; (vi) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each of the Grantors and Guarantors) to the Transactions have been received; (vii) evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Borrowers and subsidiaries since December 31, 1998; (viii) evidence of the repayment of all amounts due owing under or in connection with, and payable the termination of, all security interest filings relating to, the exiting credit facility of DCA with NationsBank, N.A.; (ix) evidence that all dental practices affiliated with any of the Borrowers have entered into a Management Agreement (and a Shares Acquisition Agreement if the Management Agreement is in the form of EXHIBIT J-1 annexed hereto) (and except for (i) Serra Park Dental Group, Xxxxxx X. Xxxxxx, D.D.S. & Associates, Dental Corporation, (ii) Xxxxxxx Xxxxxx D.D.S., Dental Corporation and (iii) Xxxx X. Xxxxxx D.D.S., Dental Corporation an Assignment of Contract has been executed and delivered in connection thereto); (x) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting any Borrowers or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions; and (xi) evidence that all of the Uniform Commercial Code financing statements described on Schedule II have been properly executed and recorded. (j) Each Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers, subsidiaries of the Borrowers, the Grantors and the Guarantors and to make copies thereof, and to conduct customer checkings and checkings with suppliers, insurance companies and dentists affiliated with the Borrowers, and the results of such examination and checkings shall have been satisfactory to the Agents and Lenders in all respects. (k) Each Agent shall have received and had the opportunity to review and determine to be in form and substance satisfactory to it: (i) copies of all real property lease agreements entered into by any of the Borrowers and their subsidiaries (to the extent not delivered on the Original Closing Date); (ii) copies of all loan agreements, notes and other documentation evidencing Indebtedness for borrowed money of any of the Borrowers or prior their subsidiaries which are not to be repaid on the Closing Date; (iii) copies of all Management Agreements, Share Acquisition Agreements, Purchase Agreements and earn-out agreements to which any Loan Party is a party as of the Closing Date (to the extent not delivered on the Original Closing Date); and (iv) if applicable, copies of an amendment to the terms and provisions of the Convertible Subordinated Note in form and substance satisfactory to the Agents.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event under the First Amended and Restated Credit Agreement were subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the First Amended and Restated Closing Date and Date, addressed to the Banks, Lenders and the Agent and satisfactory to the effect set forth in Exhibit D hereto, Agent and the Borrower hereby instructs such counsel to deliver such opinion to the AgentLenders. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the agreement of limited partnership, certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the First Amended and Restated Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the general partner of each Borrower which is a partnership, and by each corporate Borrower's Board of Directors of the Borrower Directors, authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's agreement of limited partnership, certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as appli- cable; (iiiii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the its Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iviii) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the First Amended and Restated Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) Each Lender shall have received its Revolving Credit Note and Term Note duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations and warranties Agent shall have received the Security Documents including, without limitation, the Mortgages (except as set forth in Section 3.06 shall be true 6.21(a) hereof) (together with policies of title insurance in form, scope and correct amount satisfactory in all material respectsrespects to the Agent), and certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors, and including evidence satisfactory to the Agent that each Notice to Broker executed by Chock in connection with the Pledge Agreement (Investment Account) was delivered to and received by the broker named therein. (f) Concurrently with The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the transactions contemplated hereby on the Closing DateLenders of a UCC Reporter Service, the listing all effective financing statements which name as debtor any Borrower, any Guarantor or any Grantor and which are filed in the applicable Banks appropriate offices in the States in which are located the chief executive office and other operating offices of such person, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have executed received termination statements in form and substance satisfactory to it. (g) Each document (including, without limitation, each Uniform Commercial Code financing statement and each real property mortgage or deed of trust and each leasehold mortgage) required by law or requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for the benefit of the Lenders a side letter whereby all competitive loans under first priority perfected security interest in the Existing Credit Agreement Collateral shall have been, or shall be deemed to be Competitive Loans hereunderin a form such that it can promptly be, properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Borrower Agent shall have repaid received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation which has been completed before the First Amended and Restated Closing Date. (h) The Agent shall have received the results of a search of tax and other liens, judgments and of Uniform Commercial Code filings made with respect to each Borrower and each Grantor in full all other amounts due under each jurisdiction requested by the Existing Credit Agreement and under each other agreement related theretoAgent and/or in which any Borrower, Grantor or Guarantor is doing business or in which any Collateral is located. (i) The Lenders and the Agent shall have received duly executed documentation either evidencing or necessary for and determined to be in form and substance satisfactory to them: (i) the termination schedule and aging of accounts receivable of Chock and its subsidiaries (other than Cxxx'x) as at October 31, 1992, and of Cxxx'x as at the Existing Credit Agreement end of October, 1992, and each inventory designations of Chock and its subsidiaries (other agreement related thereto than Cxxx'x) as at October 31, 1992, and of Cxxx'x as at the end of October, 1992; (ii) evidence that after giving effect to the cancelation Loans to be made on the First Amended and Restated Closing Date together with payment of all commitments thereunderfees and expenses in connection with the Acquisition, there shall be not less than $8,000,000 of Undrawn Availability; (iii) evidence that the Borrowers have at least $95,000,000 of Subordinated Indebtedness outstanding on the First Amended and Restated Closing Date, excluding any conversions of such Subordinated Indebtedness to common stock since July 31, 1992; (iv) a copy of a field examination of the Borrowers' books and records; (v) evidence of the compliance by the Borrowers with Section 6.03 hereof including, without limitation, title insurance with respect to all real property of the Borrowers; (vi) the financial statements described in Section 4.07 hereof, and, in addition, the Agent shall have determined to its satisfaction that such statements do not differ in any material respect from drafts previously delivered to the Agent; (vii) evidence that the Transactions are in compliance with all applicable laws and regulations; (viii) the results of an environmental audit with respect to the Borrowers' and subsidiaries' properties and operations conducted by a firm satisfactory to the Agent and the Lenders, and the scope, methodology and results of such environmental audit shall be satisfactory to the Agent and Lenders in all respects; (ix) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement, the Commitment Letters or otherwise; (x) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each of the Grantors and Guarantors) to the Transactions have been received; (xi) the results of appraisals of the Borrowers' and subsidiaries' real property and personal property; (xii) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting any Borrower or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions; (xiii) the September 30, 1992 statement of income and balance sheet of Chock and its subsidiaries (other than Cxxx'x), including data regarding Capital Expenditures, depreciation and amortization; (xiv) landlord waiver and consent agreements for all leased premises, and warehousemen letters with respect to each warehouse, of Chock and its subsidiaries (other than such locations of Cxxx'x and all locations of Hillside as are listed in Schedule 6.19 hereto); (xv) a Form U-1 for each of the Borrowers; and (xvi) if issued, management letters of Chock for Fiscal Years 1989, 1990 and 1991. (gj) The Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers, subsidiaries, the Grantors and the Guarantors and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables, payment of payroll taxes and accounts payable and formulation of an opening Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Agent and Lenders in all respects. (k) The Agent and Lenders shall have received and had the opportunity to review and determine to be in form and substance satisfactory: (i) copies of all Fees lease agreements entered into by any of the Borrowers and their subsidiaries; and (ii) copies of all loan agreements, notes and other amounts due and payable on documentation evidencing Indebtedness for borrowed money of any of the Borrowers, their subsidiaries, Grantors or prior to the Closing DateGuarantors.

First Borrowing. On the Closing Date: (a) The Agent shall have received a favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & XxxxxxxxXxxxxxxx LLP, counsel for the Agent. (c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & XxxxxxxxXxxxxxxx LLP, counsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement Agreements shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement Agreements and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement Agreements and each other agreement related thereto and (ii) the cancelation cancellation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.

First Borrowing. On the Closing Date: (a) The Administrative Agent shall have received received, on behalf of itself and the Lenders, a favorable written opinion of Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxxx LLP, counsel for the Borrower, (A) dated the Closing Date and Date, (B) addressed to the Banks, Administrative Agent and the Lenders and (C) covering such other matters relating to the effect set forth in Exhibit D heretoLoan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby instructs requests such counsel to deliver such opinion to the Agentopinions. (b) All legal matters incident to this Agreement Agreement, the Borrowings and extensions of credit hereunder and the borrowings hereunder other Loan Documents shall be satisfactory to the Banks Lenders and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent. (c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrowereach Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws of regulations of the Borrower such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower such Loan Party authorizing the execution, delivery and performance of the Loan Documents and to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of the Borrower such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to sub-clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowersuch Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to sub-clause (ii) above; and (iv) such other documents as the Banks Lenders or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, Administrative Agent may reasonably request. (d) The Administrative Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs clauses (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. (f) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document. (g) The Administrative Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated. (h) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which (i) shall be reasonably acceptable to the Administrative Agent and (ii) except as otherwise agreed by the Administrative Agent in its sole discretion, shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Administrative Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. (i) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement, and (b) Indebtedness set forth on Schedule 6.01. (j) The Lenders shall have received the financial statements and opinion referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of the Borrower from (and shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Lenders. (k) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is solvent. (l) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, a management rights letter in favor of the Lenders. (m) All requisite Governmental Authorities (including any Applicable Insurance Regulatory Authority) and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby. (n) The Administrative Agent and the Lenders shall have received, to the extent requested, at least five Business Days prior to the Closing Date, all documentation, including the applicable IRS Form W-9, an appropriate IRS Form W-8 or such other documentation, and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, Lenders and the Agent and satisfactory to the effect set forth in Exhibit D hereto, Agent and the Borrower hereby instructs such counsel to deliver such opinion to the AgentLenders. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of each amendment, if any, since the First Amended and Restated Closing Date to the agreement of limited partnership, certificate or articles of incorporation, including all amendments theretoincorporation or constitutive documents, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the general partner of each Borrower which is a partnership, and by each corporate Borrower's Board of Directors of the Borrower Directors, authorizing the execution, delivery and performance of this Agreement, the Notes, the other Loan Documents to be executed and delivered on the Closing Date and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's agreement of limited partnership, certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iiiii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the its Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iviii) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.03. (d) Each Lender shall have received its Revolving Credit Note duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Each document (including, without limitation, each Uniform Commercial Code financing statement, each real property mortgage or deed of trust and warranties set forth each amendment thereto, and each leasehold mortgage) required by law or requested by the Agent to be filed, registered or recorded in Section 3.06 order to create in favor of the Agent for the benefit of the Lenders a first priority perfected security interest in the Collateral shall have been, or shall be true and correct in all material respectsa form such that it can promptly be, properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation which has been completed before the Closing Date. (f) Concurrently with the transactions contemplated hereby on the Closing DateIf requested, the Borrower, the applicable Banks and the Agent shall have executed received the results of a side letter whereby all competitive loans under search of tax and other liens, judgments and of Uniform Commercial Code filings made with respect to each Borrower and each Grantor in each jurisdiction requested by the Existing Credit Agreement shall be deemed Agent and/or in which any Borrower, Grantor or Guarantor is doing business or in which any Collateral is located. With respect to be Competitive Loans hereunder. The Borrower any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have repaid received termination statements in full all other amounts due under the Existing Credit Agreement form and under each other agreement related thereto, substance satisfactory to it. (g) The Lenders and the Agent shall have received duly executed documentation either evidencing or necessary for and determined to be in form and substance satisfactory to them: (i) the termination schedule and aging of the Existing Credit Agreement accounts receivable and each other agreement related thereto inventory designations of Chock and its subsidiaries as at November 30, 1995; (ii) evidence of the cancelation compliance by the Borrowers with Section 6.03 hereof including, without limitation, title insurance with respect to all real property of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.Borrowers;

First Borrowing. On the Closing Datedate hereof: (a) Each Bank shall have received a duly executed Note complying with the provisions of Section 2.04. (b) The Agent shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLPFranx X. Xxxxxxx, counsel for Xxunsel to the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder hereto which shall be satisfactory dated the date hereof, addressed to the Banks and their counsel and satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the AgentBanks. (c) The Agent shall have received (i) a copy of the certificate of incorporation or articles of incorporation, including all amendments theretoas the case may be, as amended, of the Borrower, Borrower certified as of a recent date by the Secretary of State of the state of its organizationincorporation as of a recent date, and a certificate as to the good standing of and charter documents filed by the Borrower from such Secretary of State, dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower Borrower, dated the Closing Date date hereof and certifying (A) that attached thereto is a true and complete copy of the code of regulations By-laws of the Borrower as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions of such corporation described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of all Loan Documents, the Loan Documents and Borrowings by the borrowings Borrower hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation or articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing certification thereof furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowertherewith; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or such Assistant Secretary executing of the certificate pursuant to (ii) aboveBorrower; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx Cravath, Swaine & XxxxxxxxMoorx, counsel for or the Agent, may reasonably request. (d) The Agent shall have received a certificate from Revolving Credit Commitment (as defined in the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (cExisting Credit Agreement) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans each bank under the Existing Credit Agreement shall be deemed to be Competitive have been terminated on the date hereof, all Revolving Credit Loans hereunder. The Borrower shall have repaid (as defined in full all other amounts due under the Existing Credit Agreement Agreement) outstanding and under each other agreement related thereto, and amounts owed to the Agent shall have received duly executed documentation either evidencing or necessary for banks thereunder (i) the termination of including Term Loans (as defined in the Existing Credit Agreement and each other agreement related thereto and (iiAgreement) outstanding) shall have been paid in full on the cancelation of all commitments thereunderdate hereof. (ge) The Agent shall have received all Fees and other amounts due and payable on or prior All legal matters incident to the Closing DateLoan Documents, the Loans to be made on such date and the Transactions shall be satisfactory from a legal point of view to Cravath, Swaine & Moorx, counsel for the Agent.

First Borrowing. On the Closing Amendment Effective Date: (a) The Agent shall have received a favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks Lenders and their counsel and to Xxxxxxx Xxxxxxx Cravath, Swaine & XxxxxxxxXxxxx, counsel for the Agent. (cb) The Agent shall have received (i) a copy of all amendments to the certificate or articles of incorporation, including all amendments thereto, incorporation (or analogous documents) of each of the BorrowerBorrowers, since December 1, 1994, certified as of a recent date by the Secretary of State (or other appropriate Governmental Authority) of the state (or country) of its organization, and organization or such other evidence as is reasonably satisfactory to the Agent; (ii) a certificate certif- icate as to the good standing (or other analogous certification to the extent available) of each of the Borrower Borrowers as of a recent date, from such the appropriate Secretary of StateState (or other appropriate Governmental Authority) or such other evidence as is reasonably satisfactory to the Agent; (iiiii) a certificate of the Secretary or Assistant Secretary of each of the Borrower Borrowers dated the Closing Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws (or such other analogous documents to the extent available) of regulations of the such Borrower as in effect on the Closing Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the such Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or analogous documents) of the such Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or other analogous certification or such other evidence reasonably satisfactory to the Agent) furnished pursuant to clause (i) or (ii) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the such Borrower; (iiiiv) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (iiiii) above; and (ivv) such other documents as the Banks Lenders or their counsel or Xxxxxxx Xxxxxxx Cravath, Swaine & XxxxxxxxXxxxx, counsel for the Agent, may reasonably request. (dc) The Agent shall have received a certificate from of each of the BorrowerBorrowers, dated the Closing Amendment Effective Date and signed signed, in the case of the Company, by a Financial Officer thereofof the Company, and, in the case of each Borrower other than the Company, a Responsible Officer of such Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (gd) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Amendment Effective Date. (e) The amendment agreement dated as of the date hereof among the Borrowers, the Agent and the lenders named therein, shall have been executed and delivered to the Agent.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrower and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the Borrower, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each of the Borrower Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the 50 57 execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) Each Lender shall have received its Revolving Credit Note (which Notes shall replace the Revolving Credit Notes issued in connection with the Original Credit Agreement, such replaced Notes, together with the Term Notes issued in connection with the Original Credit Agreement, to be returned to the Borrower by the Lenders holding same, marked "cancelled" promptly after the Closing Date), each duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Agent shall have received (x) such amendments or confirmations (as requested by the Agent) of the Security Documents existing as of the Closing Date, and warranties set forth (y) such additional Security Documents (as requested by the Agent, including, but not limited to, an Assignment of Contract relating to the Acquisition Documents) to be executed and delivered in Section 3.06 shall be true and correct in all material respectsconnection with the Transactions, each duly executed by the applicable Grantors. (f) Concurrently with the transactions contemplated hereby on the Closing DateEach document (including, the Borrowerwithout limitation, the applicable Banks and each Uniform Commercial Code financing statement) required by law or reasonably requested by the Agent to be filed, registered or recorded in order to create in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority perfected security interest in the Collateral acquired pursuant to the Acquisition, except to the extent permitted by the Security Documents, shall have executed a side letter whereby all competitive loans under been properly filed, registered or recorded in each jurisdiction in which the Existing Credit Agreement shall be deemed to be Competitive Loans hereunderfiling, registration or recordation thereof is so required or requested. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing an acknowledgment copy, or necessary for (i) the termination other evidence satisfactory to it, of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereundersuch filing, registration or recordation. (g) The Agent shall have received all Fees the results of a search of tax and other amounts due Liens, and payable judgments and of the Uniform Commercial Code filings made with respect to the Borrower and each Grantor in the jurisdictions in which the Borrower is doing business and/or in which any Collateral acquired pursuant to the Acquisition is located, and in which Uniform Commercial Code filings have been made against the Borrower, each Guarantor and each Grantor pursuant to paragraph (f) above. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have received termination statements in form and substance satisfactory to it. (h) The Agent shall have received such Uniform Commercial Code financing statements as reasonably requested by the Agent to be filed, registered or recorded in order to evidence the Borrower's name change. (i) The Lenders and the Agent shall have received and determined to be in form and substance satisfactory to them: (i) schedules listing (w) the stock ownership of Holdings, (x) all contingent liabilities of the Borrower and its subsidiaries, as reportable under GAAP, (y) all pending litigation involving the Borrower or its subsidiaries or any of their respective businesses, assets or rights and (z) all operating and capital leases; (ii) evidence that, immediately after giving effect to the Credit Events on or prior to the Closing Date, the Total Term Loan Commitment is $0; (iii) evidence that the Borrower shall have received not less than $90,000,000 as gross cash proceeds in consideration for the issuance of the Subordinated Notes; (iv) a copy of a field examination of the books and records of Crispaire Corporation; (v) evidence of the compliance by the Borrower with Section 6.03 hereof; (vi) the financial statements described in Section 4.07 hereof; (vii) evidence that the Transactions are in compliance with all applicable laws and regulations; (viii) evidence that the Borrower and its subsidiaries are in compliance with all Environmental Laws; (ix) evidence of payment of all fees owed to the Agent and the Lenders by the Borrower under this Agreement or otherwise; (x) evidence that all requisite third party consents (including, without limitation, consents with respect to the Borrower and each of the Grantors and Guarantors) to the Transactions have been received; (xi) evidence that there has been no material adverse change in the business, assets, operations or financial condition of (x) the Borrower and its subsidiaries since December 31, 1996 or (y) Crispaire Corporation and its subsidiaries since October 31, 1996; and (xii) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting the Borrower or any of its subsidiaries or any of their respective businesses, assets or rights which involve any of the Transactions. (j) The Agent and the Lenders shall have had the opportunity, if they so choose, to examine the books of account and other records and files related to Crispaire Corporation and to make copies thereof, to conduct customer and supplier checkings and to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables related to Crispaire Corporation and formulation of an opening Borrowing Base, and the results of such examination, checkings and audit shall have been satisfactory to the Agent and Lenders in all respects.

First Borrowing. On The obligation of any Lender to make a Loan on the Closing Dateoccasion of the first Borrowing is subject to the satisfaction of the following conditions not later than December 31, 2004: (a) The receipt by the Administrative Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have received been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex, facsimile or other written confirmation from such party of execution of a favorable written counterpart hereof by such party); (b) [Reserved]; (c) receipt by the Administrative Agent of an opinion of Xxxxxx Xxxxxx & Xxxxxxx llp, special U.S. counsel for the Obligors, covering the matters described in Exhibit B hereto; (d) receipt by the Administrative Agent of an opinion of Xxxxxxx xx Xxxxx Abogados, special Spanish counsel for the Obligors, covering the matters described in Exhibit C hereto; (e) receipt by the Administrative Agent of an opinion of Xxxxx Xxxx & Xxxxxxxxx LLPXxxxxxxx, special U.S. counsel for the Agents, substantially in the form of Exhibit D hereto; (f) receipt by the Administrative Agent of an opinion of Xxxx Xxxxxxxx, special Spanish counsel for the Agents, covering the matters described in Exhibit E hereto; (g) receipt by the Administrative Agent of a certificate signed by (i) the Chairman, the President, any Vice President, the Treasurer (or such Treasurer’s designee) or any Assistant Treasurer of the Guarantor and (ii) an individual empowered by notarial deed to sign on behalf of the Borrower, dated the Closing Date and addressed to the BanksDate, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. paragraphs (c) The and (d) of Section 3.02; (h) receipt by the Administrative Agent shall have received of (i) a copy of the articles complete certification (“certificación literal”) of the Borrower from the Mercantile Registry of Madrid and (ii) if such certification is dated more than 21 days prior to the Closing Date, an excerpt (“nota simple informativa”) of the Borrower from the Mercantile Registry of Madrid dated no more than 10 days prior to the Closing Date, containing all of the notations (“inscripciones”) registered between the date of such certification and the date of such excerpt; (i) receipt by the Administrative Agent of a copy of the Guarantor’s certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of Delaware; (j) receipt by the state Administrative Agent of its organization, and a certificate as to the good standing on behalf of the Borrower as of a recent date, from such signed by the Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing with the execution, delivery and performance approval of the Loan Documents Chairman of the Board of Directors satisfactory to the Administrative Agent certifying (i) that no resolutions or steps have been taken that may amend, replace or otherwise modify the contents of the certificación literal issued by the Mercantile Registry and referred to in clause (h) above, (ii) that no proceeding for the borrowings hereunderdissolution or liquidation of the Borrower exists, (iii) that the copy of the By-laws of the Borrower attached to the certificate is true, correct and complete, (iv) that such the copies of the resolutions have not been modified, rescinded or amended of the Borrower’s Board of Directors attached to the certificate are true and are correct and in full force and effect, , (Cv) that the articles of incorporation Borrowings will not breach any restriction in the by-laws or any similar constitutive document of the Borrower have or any contractual obligations binding on the Borrower, (vi) that the Borrower has received the Número de Operación Financiera (“NOF”) from the Bank of Spain, and a copy of the P-1A form with the seal of the Bank of Spain and (vii) as to the authority of the individual who signed this Agreement on behalf of the Borrower; (k) receipt by the Administrative Agent of a certificate on behalf of the Guarantor signed by the Secretary or an Assistant Secretary of the Guarantor or such other authorized officer of the Guarantor satisfactory to the Administrative Agent certifying (i) that the Guarantor’s certificate of incorporation has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant referred to in clause (i) above, (ii) that no proceeding for the dissolution or liquidation of the Guarantor exists, (iii) that the copy of the by-laws of the Guarantor attached to the certificate is true, correct and complete, (Div) that the copies of the resolutions of the Guarantor’s Board of Directors attached to the certificate are true and correct and in full force and effect, and (v) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith of the Guarantor who signed this Agreement on behalf of any Obligor; (l) receipt by the Borrower; Administrative Agent of (iiii) a certificate evidence satisfactory to it that immediately after, but otherwise substantially simultaneously with the making of another officer as the initial Term Loan, the Acquisition shall be consummated on terms provided to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant Administrative Agent prior to (ii) above; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming in compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.applicable laws; and (eii) The representations and warranties set forth in Section 3.06 shall be true an executed copy of the Acquisition Agreement (without any exhibits, schedules or other attachments thereto), certified as of the Closing Date as a true, complete and correct in all material respects.copy thereof by the Secretary or an Assistant Secretary of the Guarantor or such other authorized officer of the Guarantor satisfactory to the Administrative Agent; (fm) Concurrently with receipt by the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Administrative Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed of evidence satisfactory to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for it of approval of (i) the termination of Acquisition by the Existing Credit Agreement and each other agreement related thereto German Federal Cartel Office and (ii) the cancelation of all commitments thereunder.Acquisition Agreement by the European Commission; (gn) The receipt by the Lenders of (i) a balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2003, together with the related statements of income and cash flows for the fiscal year then ended, and (ii) a projected balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2004, prepared as if the Acquisition was consummated on such date; (o) receipt by the Administrative Agent shall have received of evidence satisfactory to it of the appointment by the Borrower of the Process Agent pursuant to Section 10.07(b); (p) the fact that all Fees and other amounts due and fees payable on or prior before the Closing Date by the Borrower for the account of the Lenders and their affiliates in connection with this Agreement have been paid in full on or before such date in the amounts previously agreed upon in writing; and (q) receipt by the Administrative Agent of all other documents that the Agents may reasonably request relating to the Closing Dateexistence of each Obligor, the corporate authority for and the validity of this Agreement and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent.

First Borrowing. On the Closing Datedate hereof: (a) The Agent shall have received a favorable written opinion of Xxxxx & Xxxxxxxxx LLPRichard P. Bruening, counsel for the Borrower, dated the Closing Date Vice-President and addressed to the BanksGeneral Xxxxxxx xx xxx Xxxrower, to the effect set forth in Exhibit D hereto, dated the date hereof and addressed to the Lenders. The Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings Borrowings hereunder shall be satisfactory to the Banks and their counsel Lenders and to Xxxxxxx Xxxxxxx & Xxxxxxxx[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], counsel for the Agent. (c) The Agent shall have received (iI) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state State of its organization, Delaware and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower dated the Closing Date date hereof and certifying (A) that attached thereto is a true and complete copy of the code of regulations by-laws of the Borrower as in effect on the Closing Date date hereof and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (Cc) that the certificate or articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iI) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks Lenders or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], counsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date date hereof and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Datedate hereof. (f) The DST Credit Agreements shall have been, or shall simultaneously be, executed and delivered. (g) The Borrower shall have terminated the Total Commitment under the Credit Agreement dated as of December 8, 1992 (the "1992 Credit Agreement"), between the Borrower, the lenders named therein and [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], in the manner provided therein and any Loans outstanding (other than any Competitive Loans that have been made by any Lenders) thereunder (together with accrued interest on such Loans) and all accrued fees and other amounts due thereunder shall have been paid in full in the manner provided therein (capitalized terms used in this clause (g) having the meanings ascribed to them in the 1992 Credit Agreement). The Borrower shall not have requested any additional Competitive Loans under the 1992 Credit Agreement, and each Competitive Loan that has been made by any Lenders under the 1992 Credit Agreement that remains outstanding after the date hereof shall be deemed to reduce the available Commitments hereunder by the principal amount of such Competitive Loan until the repayment of such Competitive Loan.

First Borrowing. On The obligations of the Closing DateLenders --------------- in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Each Lender shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for each Credit Party, substantially in the Borrowerform of Exhibit B hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion --------- satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Credit Party from the Borrower Secretary of State or other appropriate official of the state or county of its organization or location, as appropriate, in each case dated as of a recent date; provided, from such Secretary however, that with respect to Milgray/Connecticut, Inc., a -------- ------- certificate of Stategood standing certified by an appropriate state official shall be delivered to the Agent by said Guarantor as soon as practicable and in any event within 30 Business Days following the first Credit Event instead of at the time of the first Credit Event; (ii) a certificate of the Secretary, Assistant Secretary or Assistant Secretary a Financial Officer of each Credit Party, dated as of the Borrower dated the Closing Date date hereof and certifying (A) that attached thereto is a true its certificate or articles of incorporation and complete copy its By-laws have not been amended since September 29, 1993 or, in the case of the code of regulations of the Borrower as in effect on the Closing Date and at all times Credit Parties incorporated after September 29, 1993, since a date prior to the date of the resolutions described in clause incorporation thereof (B) belowor if there has been any such amendment, attaching a certified copy thereof), (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, effect and (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the its Secretary, Assistant Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveFinancial Officer, as applicable; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof, the conditions set forth in this Section 5.02 and that no Event of Default presently exists and no event (including, without limitation, any Credit Event hereunder) has occurred and is continuing which would constitute a Default. (d) Each Lender shall have received its Revolving Credit Note duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.04 hereof and the Agent shall have received each other applicable Loan Document, each duly executed by the parties thereto. (e) The representations Agent shall have received for the benefit of the Lenders, and warranties set forth each Lender shall have had the opportunity to review and determined to be in form and substance satisfactory to them: (i) the aging of accounts of each Credit Party and a consolidated schedule of Inventory of the Credit Parties listed by manufacturer, each dated within 40 days of the Closing Date; (ii) evidence of the compliance by the Borrower with Section 6.03 hereof; (iii) the financial statements described in Section 3.06 shall be true 4.07(b) hereof (each certified by a Financial Officer of the Borrower) and correct each of the agreements and instruments listed in Schedule 4.20 hereto and Schedule 7.02 hereto; ------------- ------------- (iv) all material respectsshareholder agreements to which the Borrower or any other Credit Party is a party to the extent such agreements relate to such shareholder's interests in the Borrower or any other Credit Party; (v) the three largest (based on sales revenues) franchise agreements to which the Borrower is a party, and any other franchise agreements that the Agent may in its reasonable discretion designate; (vi) a schedule listing all franchise agreements to which the Borrower or any of its subsidiaries is a party; and (vii) if requested by the Agent or any Lender, copies of the most recent annual reports that were filed with the Internal Revenue Service on Treasury Form 5500 with respect to any Plan, together with certified financial statements (if any) for the Plan and any actuarial statements on Schedule B to such Form 5500. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.Intentionally Omitted ---------------------

First Borrowing. On The obligations of the Closing DateLender in respect of the first Credit Event hereunder are subject to the following additional conditions precedent: (a) The Agent Lender shall have received a favorable the favourable written opinion of Xxxxx & Xxxxxxxxx LLPOntario, Quebec, New York and New Brunswick counsel for the BorrowerBorrower and each Guarantor and Grantor, dated the Closing Date and Date, addressed to the Banks, Lender and satisfactory to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the AgentLender. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent Lender shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of the BorrowerBorrower and Apparel Canada and Trademark Canada, certified as of a recent date by the Secretary of State Provincial Registrar, or other appropriate official of the state jurisdiction of its organizationorganization and updated (from the government certificate to the Closing Date) by a Responsible Officer, and a certificate as to the good standing of the Borrower each from such official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower Borrower, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by such person's sole shareholder or in the Board case of Directors of Trademark Canada its shareholders pursuant to the Borrower applicable unanimous shareholders agreement authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Promissory Note, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Promissory Note, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, Lender may reasonably request. (dc) The Agent Lender shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (d) The Lender shall have received the Promissory Note duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.04 hereof. (e) The representations Lender shall have received, duly executed and warranties delivered the Security Documents including, without limitation, the Chase U.S. Letter of Credit, Security Agreements, the Pledge Agreement, the Quebec Pledge Agreement, the Bank Act Security, the Guarantee of Trademark Canada and the Guarantee of Apparel Canada, the Security Agreement (Intellectual Property), the Mortgage together with a title opinion from counsel of the Borrower and an agreement between National Bank of Canada, the Borrower, Apparel Canada and the Lender relating to the operation of the Concentration Accounts and a tripartite agreement between the Lender, the Borrower and Royal Bank of Canada with respect to the Domestic Letters of Credit in form, scope and amount satisfactory in all respects to the Lender. (f) The Lender shall have received certified copies or a certified print-out from the Ministry of Consumer and Commercial Relations (Ontario) or on Form UCC-11 of a UCC Reporter Service or certified statements of the registration of rights issued by the registrar of the register of personal and movable real rights established pursuant to the Civil Code of Quebec (the "Register") or certificates satisfactory to the Lender listing all effective financing statements and/or rights registered in the Register and duplicate registered copies of the Security Documents which name as debtor the Borrower, any guarantor of the Obligations or any Grantor or the Parent and which are filed in all appropriate offices in the provinces, states or other applicable jurisdictions in which are located the chief executive office and other operating offices of such person, or any part of the collateral is located together with copies of such certified statements, financing statements or of the security agreements to which such filings relate. With respect to any Liens not permitted pursuant to Section 7.01 of the U.S. Credit Agreement, the Lender shall have received termination statements or discharges/cancellations in form and substance satisfactory to it. (g) Each document (including, without limitation, each financing statement under the Personal Property Security Law and the Notice of Intention under the Bank Act) required by law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favour of the Lender a first priority perfected Lien in the Collateral (subject to the Liens permitted by Section 7.01 of the U.S. Credit Agreement) shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Lender shall have received certified statements issued by the registrar of the Register, an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation. (h) The Lender shall have received the results of a search of tax and other Liens and judgments and of security searches under the Personal Property Security Law and Bank Act or a search of comparable filings made with respect to the Borrower and each Grantor in the jurisdictions in which the Borrower is doing business and/or in which any Collateral is located, and in which Personal Property Security Law filings have been made against the Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above. (i) the Lender and Chase U.S. shall each have received and determined to be in form and substance satisfactory to them: (A) the most recent (dated within seven (7) days of the Closing Date) schedule and aging of accounts receivable and inventory designations of the Borrower; (B) evidence that all conditions precedent to the first Loan under the U.S. Credit Agreement have been satisfied or waived; (C) evidence that there has been entered a final non-appealable order of confirmation consistent with the Plan of Reorganization and that unless waived by the Lender all conditions precedent to the effectiveness of the Plan of Reorganization have been satisfied; (D) a copy of a field examination of the Borrower's books and records; (E) evidence of the compliance by the Borrower with all insurance requirements as set out in the U.S. Credit Agreement; (F) the financial statements described in Section 4.07 hereof, together with a draft of the audited financial statements for the Fiscal Year ended December 31, 1996; (G) evidence that the Transactions are in material compliance with all material applicable laws and regulations; (H) evidence of payment of all fees owed to the Lender by the Borrower under this Agreement or otherwise; (I) evidence that all requisite third party consents (including, without limitation, consents with respect to the Borrower and each of the Grantors and Guarantors) to the Transactions have been received; (J) copies of all major Customer, supplier contracts and employment agreements with respect to the Borrower; (K) except as set forth in Section 3.06 SCHEDULE 4.05 annexed hereto, evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Parent or any subsidiaries, including, without limitation, the Borrower since December 31, 1995; (L) evidence of the repayment in full of exiting credit arrangements and the termination of all commitments to lend thereunder, and the termination of all Liens securing such Indebtedness as required under paragraph (f) above, all as set forth in the Plan of Reorganization; and (M) evidence that except as disclosed in the schedule delivered pursuant to (k)(i) below there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or to the knowledge of the Loan Parties threatened against or affecting any of the Loan Parties or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions. (j) The Lender shall be true have had the opportunity, at the Lender's option, to examine the books of account and correct other records and files of the Borrower and its subsidiaries, and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Eligible Receivables, payment of payroll taxes and accounts payable and formulation of an opening Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Lender in all material respects. (fk) Concurrently with The Lender shall have received and had the transactions contemplated hereby on opportunity to review and determine to be in form and substance satisfactory to it: (i) a schedule of disputed claims relating to the Closing Date, Plan of Reorganization and an analysis of the expected disposition thereof; (ii) copies of all real property lease agreements entered into by the Borrower, together with appropriate landlord and/or mortgagee waivers with the applicable Banks Lender; and (iii) copies of all loan agreements, notes and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary Indebtedness for (i) the termination borrowed money of the Existing Credit Agreement Borrower and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior its subsidiaries, which is to remain outstanding pursuant to the Closing DatePlan of Reorganization, including the Senior Secured Notes.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a1) The Agent Lenders shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c2) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of the Borrower each from such Secretary of State or other official, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (d3) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02. (e4) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, Lenders and the Agent shall have received duly executed documentation either evidencing or necessary for and determined to be in form and substance satisfactory to them: (i1) evidence of the compliance by the Borrowers with Section 6.03 hereof; (2) the termination financial statements described in Section 4.07 hereof; (3) evidence that the Transactions are in compliance with all applicable laws and regulations (including, without limitation, all applicable environmental regulations); (4) evidence of the Existing Credit extension by CIT of the term of each of the Notification Factoring Agreements, each dated April 28, 1998, from March 31, 1999 to March 31, 2000; (5) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement or otherwise; (6) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each other agreement related thereto of the Grantors and (iiGuarantors) to the cancelation of all commitments thereunder.Transactions have been received; (g7) The Agent shall have received all Fees evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Parent and its Subsidiaries since June 30, 1998; and (8) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other amounts due and payable on agency or prior to regulatory authority now pending or threatened against or affecting the Closing DateParent or any of its Subsidiaries or any of their respective businesses, assets or rights which involve any of the Transactions.

First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent: (a) The Agent Each Lender shall have received a the favorable written opinion of Xxxxx & Xxxxxxxxx LLP, counsel for each Credit Party, substantially in the Borrowerform of Exhibit B hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent. (c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Credit Party from the Borrower Secretary of State or other appropriate official of the state or county of its organization or location, as appropriate, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary, Assistant Secretary or Assistant Secretary a Financial Officer of each Credit Party, dated as of the Borrower dated the Closing Date date hereof and certifying (A) that attached thereto is a true its certificate or articles of incorporation and complete copy its By-laws have not been amended since November 7, 1995 or, in the case of the code of regulations of the Borrower as in effect on the Closing Date and at all times Credit Parties incorporated after November 7, 1995, since a date prior to the date of the resolutions described in clause incorporation thereof (B) belowor if there has been any such amendment, attaching a certified copy thereof), (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, effect and (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person 5 officers as to the incumbency and specimen signature of the its Secretary, Assistant Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveFinancial Officer, as applicable; and (iv) such other documents as the Banks Agent or their counsel or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agent, any Lender may reasonably request. (dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof, the conditions set forth in this Section 5.02 and that no Event of Default presently exists and no event (including, without limitation, any Credit Event hereunder) has occurred and is continuing which would constitute a Default. (d) Each Lender shall have received its Revolving Credit Note duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.04 hereof and the Agent shall have received each other applicable Loan Document, each duly executed by the parties thereto. (e) The representations Agent shall have received for the benefit of the Lenders, and warranties set forth each Lender shall have had the opportunity to review and determined to be in form and substance satisfactory to them: (i) the aging of accounts of each Credit Party and a consolidated schedule of Inventory of the Credit Parties listed by manufacturer, each dated within 40 days of the Closing Date; (ii) evidence of the compliance by the Borrower with Section 3.06 shall be true 6.03 hereof; (iii) the financial statements described in section 4.07(b) hereof (each certified by a Financial Officer of the Borrower) and correct each of the agreements and instruments listed in Schedule 4.20 hereto and Schedule 7.02 hereto; (iv) all material respectsshareholder agreements to which the Borrower or any other Credit Party is a party to the extent such agreements relate to such shareholder's interests in the Borrower or any other Credit Party; (v) the three largest (based on sales revenues) franchise agreements to which the Borrower is a party, and any other franchise agreements that the Agent may in its reasonable discretion designate; (vi) a schedule listing all franchise agreements to which the Borrower or any of its subsidiaries is a party; and (vii) if requested by the Agent or any Lender, copies of the most recent annual reports that were filed with the Internal Revenue Service on Treasury Form 5500 with respect to any Plan, together with certified financial statements (if any) for the Plan and any actuarial statements on Schedule B to such Form 5500. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.Intentionally Omitted