Common use of Preconditions to Effectiveness Clause in Contracts

Preconditions to Effectiveness. This Fifth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faith. The willingness of the Agents and the Lenders to enter into this Fifth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent duly executed copies of this Fifth Amendment and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have delivered to the Administrative Agent, in the form attached hereto as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A. e. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Amendment, in order to confirm and implement the terms and conditions of this Fifth Amendment. f. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders executing this Fifth Amendment, an amendment fee in the amount of $750,000.00. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Amendment Fee Letter. h. No Default or Event of Default shall exist. i. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Preconditions to Effectiveness. This Fifth Fourth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faithdiscretion. The willingness of the Agents and the Lenders to enter into this Fifth Fourth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent a duly executed copies copy of this Fifth Amendment and the Fifth Amendment Fee LetterFourth Amendment, including all schedules and exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Fourth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoingThe Administrative Agent, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to SOF Investments and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have executed and delivered to the Administrative Agent, in form and substance reasonably satisfactory to each of the form attached hereto as Exhibit BAdministrative Agent and SOF Investments, a duly executed copy of that certain Amended an agreement (the “Intercreditor Letter Agreement”) with respect to the amendments and Restated Subordination Agreement by other modifications to the Loan Documents contemplated hereby and between the Lead Borrower and X. Xxxxxxx and acknowledged by the AgentsLoan Documents described in Section 2(f)(iv) hereof, pursuant to which X. Xxxxxxx (i) SOF Investments shall have agreed consented to subordinate certain Liens such amendments and rights to payment in accordance with other modifications, and (ii) the terms thereofintercreditor agreement between the Administrative Agent and SOF Investments shall have been amended to, among other things, modify the definition of “Required Leverage Ratio” set forth therein. d. c. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 7 to the SOF Investments Loan, in the form attached hereto as Exhibit A.. e. d. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Fourth Amendment, in order to confirm and implement the terms and conditions of this Fifth Fourth Amendment. f. e. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders executing this Fifth AmendmentLenders, an amendment fee in the amount of $750,000.0093,750.00. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Fourth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. f. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Fourth Amendment Fee Letter. g. The Parent (and each other Loan Party, to the extent requested by the Agents) shall each have delivered the following to the Agents, in form and substance reasonably satisfactory to the Agents: i. A Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization, and Certificates of Foreign Qualification issued by the Secretary of State of any jurisdiction in which such Person is qualified to do business; ii. A certificate of an authorized officer relating to the organization and existence of such party, the authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents; iii. A Perfection Certificate; iv. The following duly executed Loan Documents: -11- a) Joinder and First Amendment to Security Agreement; b) Fourth Amendment Fee Letter; c) Amended and Restated Ownership Interest and Intercompany Note Pledge and Security Agreement; d) Amended and Restated Guaranty; and e) such other documents and agreements reasonably required by the Agents. h. The Collateral Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent (dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Parent, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements are being tendered on the date hereof. i. The Collateral Agent shall have received all documents and instruments, including financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents with respect to the Parent and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agents. j. The Agents shall have received an opinion of counsel to the Loan Parties, addressed to the Agents and each Lender, as to such matters concerning the Parent, the other Loan Parties and the Loan Documents as the Administrative Agent may reasonably request. k. No Default or Event of Default shall exist. i. l. No material misstatements in or omissions shall exist from the materials previously furnished to the Agents or any Lender for their review. The Agents shall be satisfied that any financial statements delivered to them fairly present the business and financial condition of the Loan Parties and their subsidiaries, and that there has been no material adverse change in the assets, business, financial condition, income or prospects of the Loan Parties since the date of the most recent financial information delivered to the Agents. m. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. n. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effectexist.

Preconditions to Effectiveness. This Fifth Third Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faithdiscretion. The willingness of the Agents and the Lenders to enter into this Fifth Third Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent duly executed copies of this Fifth Amendment and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have delivered to the Administrative Agent, in the form attached hereto as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereofthis Third Amendment. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A. e. b. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Third Amendment, in order to confirm and implement the terms and conditions of this Fifth Third Amendment. f. c. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, Agent for the ratable benefit of the Lenders executing this Fifth Amendment, an amendment and waiver fee in the amount of $750,000.0025,000.00. In this regard, the waiver and amendment fee shall be fully earned as of the date of execution of this Fifth Third Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the waiver and amendment fee. g. On or prior to d. Within seven (7) days following the date hereof, the Borrowers Agents shall have paid received a favorable written opinion (addressed to each Agent, the fees set forth Collateral Monitoring Agent and the Lenders and dated as of the date hereof) of counsel for Endeavor and AAI LLC substantially in the Fifth Amendment Fee Letterform of Exhibit B annexed hereto. h. No Default or Event of Default shall exist. i. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Preconditions to Effectiveness. This Fifth Eighth Amendment shall not take effect become effective unless and until until, on or before April 26, 2011, each and all of the following items has conditions have been satisfied or deliveredsatisfied, as the in each case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faith. The willingness of the Agents and the Lenders to enter into this Fifth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the The Lead Borrower, the other Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent duly executed copies of this Fifth Amendment and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Eighth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting The Agents shall have received whatever documents and certificates as the generality Agents or their counsel may reasonably request relating to the authorization of the foregoingtransactions contemplated by this Eighth Amendment, the Second Lien Administrative Agent (as defined all in the Intercreditor Agreement) shall have delivered form and substance reasonably satisfactory to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth AmendmentAgents and their counsel. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have delivered to the Administrative Agent, in the form attached hereto as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A. e. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Eighth Amendment, in order to confirm and implement the terms and conditions of this Fifth Eighth Amendment, including without limitation, such corporate governance documentation for the Loan Parties confirming the retention of FTI/Weinsten as the Chairman of the OSP and the creation of the OSP. d. The Agents shall have confirmed receipt by the Lead Borrower of not less than $10,500,000 in new equity from Xxxxxxx Xxxxxxx, among others, on terms and conditions acceptable to the Agents, with the consent of the Required Lenders, as provided in that certain Purchase and Investment Agreement dated as of April 21, 2011, a fully executed copy of which shall have been delivered to the Administrative Agent. e. The Agents shall have received a fully executed copy of the Waiver and Sixth Amendment to Credit Agreement entered into by the Lead Borrower, the Loan Parties, and Wilmington Trust FSB, as Administrative Agent, dated April 26, 2011, and that Waiver and Sixth Amendment shall be fully effective with all conditions precedent contained therein having been satisfied or waived simultaneously with the effectiveness of this Eighth Amendment. f. On or prior to the date hereof, the The Borrowers shall have paid reimbursed the Agents for all Credit Party Expenses incurred by the Agents incidental to the Administrative Agent, for Specified Default and the ratable benefit of the Lenders executing this Fifth Amendment, an amendment fee in the amount of $750,000.00. In this regard, the amendment fee shall be fully earned as of the date of execution negotiation and preparation of this Fifth AmendmentEighth Amendment and all documents, instruments, and the agreements incidental hereto or thereto. The Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay such Credit Party Expenses, and the amendment feeAdministrative Agent agrees to do so upon satisfaction of the condition precedent set forth in Section 6(a) above, the foregoing being deemed satisfaction of the condition precedent set forth in this Section 6(e). g. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Amendment Fee Letter. h. No Default (other than the Specified Default) or Event of Default shall exist. i. h. Except as set forth on Schedule 3.06 to the Credit AgreementAgreement and other than as disclosed in filings with the SEC made by the Parent prior to the Eighth Amendment Effective Date, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Preconditions to Effectiveness. This Fifth Fourth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faithdiscretion. The willingness of the Agents and the Lenders to enter into this Fifth Fourth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent a duly executed copies copy of this Fifth Fourth Amendment and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Fourth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting To the generality of extent required by the foregoingAgents, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented entered into an amendment to this Fifth Amendmentthe intercreditor agreement with SOF Investments. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have delivered to the Administrative Agent, in the form attached hereto as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A. e. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Fourth Amendment, in order to confirm and implement the terms and conditions of this Fifth Fourth Amendment. f. d. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders executing this Fifth AmendmentLenders, an amendment fee in the amount of $750,000.0093,750.00. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Fourth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. e. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Fourth Amendment Fee Letter. f. The Parent (and each other Loan Party, to the extent requested by the Agents) shall each have delivered the following to the Agents, in form and substance reasonably satisfactory to the Agents: i. A Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization. ii. A certificate of an authorized officer relating to the organization and existence of such party, the authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents. iii. A Perfection Certificate; iv. The following duly executed Loan Documents: a) Joinder and Amendment to the Security Agreement; b) Fourth Amendment Fee Letter; c) Amended and Restated Ownership Interest and Intercompany Note Pledge and Security Agreement; d) Amended and Restated Guaranty; and e) such other documents and agreements reasonably required by the Agents. g. The Collateral Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent (dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Parent, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements are being tendered on the date hereof. h. The Collateral Agent shall have received all documents and instruments, including financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents with respect to the Parent and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agents. i. The Agents shall have received an opinion of counsel to the Loan Parties, addressed to the Agents and each Lender, as to such matters concerning the Parent, the other Loan Parties and the Loan Documents as the Administrative Agent may reasonably request. j. No Default or Event of Default shall exist. i. Except as set forth on Schedule 3.06 k. No material misstatements in or omissions shall exist from the materials previously furnished to the Credit AgreementAgents or any Lender for their review. The Agents shall be satisfied that any financial statements delivered to them fairly present the business and financial condition of the Loan Parties and their subsidiaries, and that there shall not be pending any has been no material adverse change in the assets, business, financial condition, income or prospects of the Loan Parties since the date of the most recent financial information delivered to the Agents. I. No litigation or other proceeding, proceeding shall exist the result of which could reasonably be expected to might have a Material Adverse Effectmaterial adverse effect on the Loan Parties. j. m. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effectexist.

Preconditions to Effectiveness. This Fifth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faithdiscretion. The willingness of the Agents and the Lenders Banks to enter into this Fifth Amendment is expressly conditioned upon the receipt prior satisfaction of the following conditions precedent. The Borrower expressly acknowledges and agrees that the Agents and the Banks are relying upon the satisfaction of the following conditions precedent (collectively, the "Preconditions to Effectiveness"): (a) The Borrower shall have closed on, or be simultaneously closing with Prentice on, the Subordinate Financing, and the Subordinate Financing shall be upon terms and conditions acceptable to the Agents, in their sole and exclusive discretion, substantially in accordance with the Bridge Loan Term Sheet. (b) The Agents shall have entered into an Intercreditor and Lien Subordination Agreement with Prentice and/or the lenders participating in the Subordinate Financing on terms and conditions acceptable to the Agents, in their sole and exclusive discretion. (c) The Trade Lien Term Sheet shall be fully executed and in full force and effect. (d) The Administrative Agent shall have entered into a security agreement, blocked account agreement, control agreement, or similar agreement, and received whatever additional documents, instruments, and agreements may be necessary to perfect the Agents' and the Banks' security interest in all cash deposited into escrow in as contemplated in connection with the Trade Lien Term Sheet; (e) The Agents shall have finalized the form of Intercreditor and Lien Subordination Agreement with Prentice and/or the lenders who shall be participating in the Convertible Facility on terms and conditions acceptable to the Agents, in their sole and exclusive discretion. (f) The Administrative Agent shall have received from the Borrower each of the following fully executed documents, in form and substance satisfactory to the Administrative Agent, and all of the transactions contemplated by each such document shall have been consummated or each condition contemplated by each such document shall have been satisfied: (i) This Amendment; (ii) A Fee Letter with the Administrative Agent and the Managing Agent in form and substance acceptable to them, in their sole and exclusive discretion; (iii) An Accommodation Facility Fee Letter in form and substance acceptable to the Accommodation Facility Agent, in its sole and exclusive discretion; (iv) Secretary's Certificate of the following items:Borrower with resolutions and incumbency; and a. On or prior (v) A Borrowing Base report dated October 3, 2005 confirming that the Borrower would have had Borrowing Availability as of October 3, 2005 in an amount not less than $15,000,000.00, after giving effect to all payments required to be made at the closing on this Amendment and the Subordinate Financing (including the escrowed funds), including closing fees, costs, expenses, and attorneys' fees payable by the Borrower and the application of the proceeds of the Subordinate Financing in accordance with this Amendment, and after giving effect to the date hereofrequirements of Section 10.1 of the Agreement as amended by this Amendment; (vi) Such other documents, the Lead Borrower, the Borrowerscertificates, and opinions as the Facility Guarantors Agents may request; and (g) The Administrative Agent shall have delivered to the Administrative Agent duly executed copies Borrower written notice confirming satisfaction of each and all of the other Preconditions to Effectiveness of this Fifth Amendment and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have delivered to the Administrative Agent, in the form attached hereto as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A. e. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Amendment, in order to confirm and implement the terms and conditions of this Fifth Amendment. f. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders executing this Fifth Amendment, an amendment fee in the amount of $750,000.00. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Amendment Fee Letter. h. No Default or Event of Default shall exist. i. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Preconditions to Effectiveness. This Fifth Fourth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faithdiscretion. The willingness of the Agents and the Lenders to enter into this Fifth Fourth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent a duly executed copies copy of this Fifth Amendment and the Fifth Amendment Fee LetterFourth Amendment, including all schedules and exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Fourth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoingThe Administrative Agent, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to SOF Investments and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have executed and delivered to the Administrative Agent, in form and substance reasonably satisfactory to each of the form attached hereto as Exhibit BAdministrative Agent and SOF Investments, a duly executed copy of that certain Amended an agreement (the “Intercreditor Letter Agreement”) with respect to the amendments and Restated Subordination Agreement by other modifications to the Loan Documents contemplated hereby and between the Lead Borrower and X. Xxxxxxx and acknowledged by the AgentsLoan Documents described in Section 2(f)(iv) hereof, pursuant to which X. Xxxxxxx (i) SOF Investments shall have agreed consented to subordinate certain Liens such amendments and rights to payment in accordance with other modifications, and (ii) the terms thereofintercreditor agreement between the Administrative Agent and SOF Investments shall have been amended to, among other things, modify the definition of “Required Leverage Ratio” set forth therein. d. c. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 7 to the SOF Investments Loan, in the form attached hereto as Exhibit A.. e. d. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Fourth Amendment, in order to confirm and implement the terms and conditions of this Fifth Fourth Amendment. f. e. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders executing this Fifth AmendmentLenders, an amendment fee in the amount of $750,000.0093,750.00. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Fourth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. f. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Fourth Amendment Fee Letter. g. The Parent (and each other Loan Party, to the extent requested by the Agents) shall each have delivered the following to the Agents, in form and substance reasonably satisfactory to the Agents: i. A Certificate of Legal Existence and Good Standing issued by the Secretary of the State of its incorporation or organization, and Certificates of Foreign Qualification issued by the Secretary of State of any jurisdiction in which such Person is qualified to do business; ii. A certificate of an authorized officer relating to the organization and existence of such party, the authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Charter Documents; iii. A Perfection Certificate; iv. The following duly executed Loan Documents: a) Joinder and First Amendment to Security Agreement; b) Fourth Amendment Fee Letter; c) Amended and Restated Ownership Interest and Intercompany Note Pledge and Security Agreement; d) Amended and Restated Guaranty; and e) such other documents and agreements reasonably required by the Agents. h. The Collateral Agent shall have received results of searches or other evidence reasonably satisfactory to the Collateral Agent (dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Parent, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements are being tendered on the date hereof. i. The Collateral Agent shall have received all documents and instruments, including financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents with respect to the Parent and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agents. j. The Agents shall have received an opinion of counsel to the Loan Parties, addressed to the Agents and each Lender, as to such matters concerning the Parent, the other Loan Parties and the Loan Documents as the Administrative Agent may reasonably request. k. No Default or Event of Default shall exist. i. l. No material misstatements in or omissions shall exist from the materials previously furnished to the Agents or any Lender for their review. The Agents shall be satisfied that any financial statements delivered to them fairly present the business and financial condition of the Loan Parties and their subsidiaries, and that there has been no material adverse change in the assets, business, financial condition, income or prospects of the Loan Parties since the date of the most recent financial information delivered to the Agents. m. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. n. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effectexist.

Preconditions to Effectiveness. This Fifth Sixth Amendment shall not take effect unless and until each and all of the following items has been satisfied or delivered, as the case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faith. The willingness of the Agents and the Lenders to enter into this Fifth Sixth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the other Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent duly executed copies of this Fifth Amendment (i) that certain Fee Letter dated as of the date hereof by and among the Lead Borrower and the Fifth Agents (the “Sixth Amendment Fee Letter”), (ii) this Sixth Amendment, including all exhibits to be replaced in accordance with the terms hereof, and (iii) evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Sixth Amendment Fee Letter Letter, this Sixth Amendment and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered received a duly executed copy of that certain First Amendment to the Xxx Xxxxxxx Subordination Agreement, in form and substance satisfactory to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendmentin its sole discretion. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to The Second Lien Agents and reduction of the Obligations in accordance with SECTION 2.16 of the Credit Agreement, and (ii) the Loan Parties and X. Xxxxxxx shall have executed and delivered to the Administrative Agent, in form and substance reasonably satisfactory to the form attached hereto Administrative Agent, the Intercreditor Agreement dated as Exhibit B, a duly executed copy of that certain Amended and Restated Subordination Agreement by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereofdate hereof. d. The Loan Parties Administrative Agent shall have delivered received duly executed copies of the Second Lien Credit Agreement and the Security Agreement, the Intellectual Property Security Agreement, the Facility Guaranty and the Pledge Agreement (as such terms are defined in the Second Lien Credit Agreement), each in form and substance reasonably satisfactory to the Administrative Agent a duly executed copy of the Amendment No. 9 to the SOF Investments Loan, in the form attached hereto as Exhibit A.Agent. e. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Sixth Amendment, in order to confirm and implement the terms and conditions of this Fifth Sixth Amendment. f. On or prior to the date hereof, the Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders each Lender executing this Fifth Sixth Amendment, an amendment fee in the amount of $750,000.000.375% of each of such executing Lender’s Commitment. In this regard, the amendment fee shall be fully earned as of the date of execution of this Fifth Sixth Amendment, and the Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the amendment fee. g. On or prior to the date hereof, the Borrowers shall have paid the fees set forth in the Fifth Sixth Amendment Fee Letter. h. No Default or Event of Default shall exist. i. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Preconditions to Effectiveness. This Fifth Seventh Amendment shall not take effect become effective unless and until until, on or before December 31, 2009, each and all of the following items has conditions have been satisfied or deliveredsatisfied, as the in each case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faith. The willingness of the Agents and the Lenders to enter into this Fifth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the The Lead Borrower, the other Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent Agent, in form and substance reasonably satisfactory to the Administrative Agent, (i) duly executed copies of (A) this Fifth Seventh Amendment, and (B) that certain First Amendment to Intellectual Property Security Agreement among the Collateral Agent and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit AgreementLoan Parties party thereto, and (ii) updated Schedule I and Schedule II to the Loan Parties Pledge Agreement (the “Amended Pledge Schedules”) in the form annexed hereto as Exhibit A, together with, with respect to Capital Stock that is evidenced by stock certificates or other equity interest certificates, original stock certificates or other equity interest certificates and X. Xxxxxxx shall have stock powers or other equity interest powers duly executed in blank, to the extent such certificates and powers are required to be delivered pursuant to such Pledge Agreement and to the extent not previously delivered to the Administrative Agent. For purposes of clarity, in the form attached hereto as Exhibit Bparties to the Pledge Agreement acknowledge and agree that, a duly executed copy of that certain Amended and Restated Subordination Agreement immediately upon receipt by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment No. 9 Amended Pledge Schedules and without requiring further action on the part of any Person, the Pledge Agreement shall be deemed amended by deleting the existing Schedule I and Schedule II thereto in their entirety and substituting the Amended Pledge Schedules in their stead. b. The Agents shall have received Charter Documents and such other documents and certificates as the Agents or their counsel may reasonably request relating to the SOF Investments Loanorganization, existence and good standing of each Loan Party and the authorization of the transactions contemplated by this Seventh Amendment, all in form and substance reasonably satisfactory to the form attached hereto as Exhibit A.Agents and their counsel. e. c. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Seventh Amendment, in order to confirm and implement the terms and conditions of this Fifth Seventh Amendment. f. On or prior to the date hereof, the d. The Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders each Lender executing this Fifth Seventh Amendment, an amendment fee in the amount of $750,000.000.1667% of each of such executing Lender’s Commitment. In this regard, the Such amendment fee shall be fully earned and payable as of the date Seventh Amendment Effective Date, shall not be subject to refund or rebate under any circumstances (including, without limitation, on account of execution the termination of this Fifth Amendmentthe Canadian Loan Agreement or the failure of the Canadian Subsidiaries and the Canadian Lender to consummate the Canadian Refinancing Transaction), and the shall not be subject to reduction by way of setoff or counterclaim. The Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the such amendment fee. g. On or prior , and the Administrative Agent agrees to do so upon satisfaction of the date hereof, the Borrowers shall have paid the fees condition precedent set forth in Section 3(a) above, the Fifth Amendment Fee Letterforegoing being deemed satisfaction of the condition precedent set forth in this Section 3(d). h. e. No Default or Event of Default shall exist. i. f. Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. g. No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. h. The Agents shall have received a duly executed copy of the Canadian Loan Agreement. i. The Agents shall have received a duly executed copy of an amendment to the Second Lien Credit Agreement, in form and substance satisfactory to the Agent, pursuant to which, among other things, the Second Lien Credit Agreement shall have been amended to permit the Canadian Refinancing Transaction.

Preconditions to Effectiveness. This Fifth Seventh Amendment shall not take effect become effective unless and until until, on or before December 31, 2009, each and all of the following items has conditions have been satisfied or deliveredsatisfied, as the in each case may be, and in all events, to the satisfaction of the Agents, in their sole and exclusive discretion exercised in good faith. : The willingness of the Agents and the Lenders to enter into this Fifth Amendment is expressly conditioned upon the receipt by the Administrative Agent of the following items: a. On or prior to the date hereof, the Lead Borrower, the other Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent Agent, in form and substance reasonably satisfactory to the Administrative Agent, (i) duly executed copies of (A) this Fifth Seventh Amendment, and (B) that certain First Amendment to Intellectual Property Security Agreement among the Collateral Agent and the Fifth Amendment Fee Letter, including all exhibits to be replaced in accordance with the terms hereof, and evidence that the Borrowers have obtained all necessary consents and approvals to this Fifth Amendment, the Fifth Amendment Fee Letter and the documents, agreements and instruments executed in connection herewith. b. Without limiting the generality of the foregoing, the Second Lien Administrative Agent (as defined in the Intercreditor Agreement) shall have delivered to the Administrative Agent an executed counterpart to this Fifth Amendment, pursuant to which the Second Lien Administrative Agent shall have consented to this Fifth Amendment. c. On or prior to the date hereof, (i) Xxx Xxxxxxx (“X. Xxxxxxx”) shall have made a loan to the Lead Borrower in the amount of $2,500,000.00, the Net Proceeds of which shall have been deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 of the Credit AgreementLoan Parties party thereto, and (ii) updated Schedule I and Schedule II to the Loan Parties Pledge Agreement (the “Amended Pledge Schedules”) in the form annexed hereto as Exhibit A, together with, with respect to Capital Stock that is evidenced by stock certificates or other equity interest certificates, original stock certificates or other equity interest certificates and X. Xxxxxxx shall have stock powers or other equity interest powers duly executed in blank, to the extent such certificates and powers are required to be delivered pursuant to such Pledge Agreement and to the extent not previously delivered to the Administrative Agent. For purposes of clarity, in the form attached hereto as Exhibit Bparties to the Pledge Agreement acknowledge and agree that, a duly executed copy of that certain Amended and Restated Subordination Agreement immediately upon receipt by and between the Lead Borrower and X. Xxxxxxx and acknowledged by the Agents, pursuant to which X. Xxxxxxx shall have agreed to subordinate certain Liens and rights to payment in accordance with the terms thereof. d. The Loan Parties shall have delivered to the Administrative Agent a duly executed copy of the Amendment NoAmended Pledge Schedules and without requiring further action on the part of any Person, the Pledge Agreement shall be deemed amended by deleting the existing Schedule I and Schedule II thereto in their entirety and substituting the Amended Pledge Schedules in their stead. 9 The Agents shall have received Charter Documents and such other documents and certificates as the Agents or their counsel may reasonably request relating to the SOF Investments Loanorganization, existence and good standing of each Loan Party and the authorization of the transactions contemplated by this Seventh Amendment, all in form and substance reasonably satisfactory to the form attached hereto as Exhibit A. e. Agents and their counsel. The Lead Borrower, the Borrowers, and the Facility Guarantors shall have delivered to the Administrative Agent such other and further documents as the Administrative Agent reasonably may require and shall have identified prior to the execution of this Fifth Seventh Amendment, in order to confirm and implement the terms and conditions of this Fifth Seventh Amendment. f. On or prior to the date hereof, the . The Borrowers shall have paid to the Administrative Agent, for the ratable benefit of the Lenders each Lender executing this Fifth Seventh Amendment, an amendment fee in the amount of $750,000.000.1667% of each of such executing Lender’s Commitment. In this regard, the Such amendment fee shall be fully earned and payable as of the date Seventh Amendment Effective Date, shall not be subject to refund or rebate under any circumstances (including, without limitation, on account of execution the termination of this Fifth Amendmentthe Canadian Loan Agreement or the failure of the Canadian Subsidiaries and the Canadian Lender to consummate the Canadian Refinancing Transaction), and the shall not be subject to reduction by way of setoff or counterclaim. The Administrative Agent is hereby authorized to make a Revolving Credit Loan under the Credit Agreement to pay the such amendment fee. g. On or prior , and the Administrative Agent agrees to do so upon satisfaction of the date hereof, the Borrowers shall have paid the fees condition precedent set forth in Section 3(a) above, the Fifth Amendment Fee Letter. h. foregoing being deemed satisfaction of the condition precedent set forth in this Section 3(d). No Default or Event of Default shall exist. i. . Except as set forth on Schedule 3.06 to the Credit Agreement, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect. j. . No default of any material contract or agreement of any Loan Party or any Subsidiary of any Loan Party shall exist except where the existence of a default, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Agents shall have received a duly executed copy of the Canadian Loan Agreement. The Agents shall have received a duly executed copy of an amendment to the Second Lien Credit Agreement, in form and substance satisfactory to the Agent, pursuant to which, among other things, the Second Lien Credit Agreement shall have been amended to permit the Canadian Refinancing Transaction.