Common use of Subsequent Advances Clause in Contracts

Subsequent Advances. The obligation of FINOVA to make any advance hereunder shall be subject to the further conditions precedent that, on and as of the date of such advance: (a) the representations and warranties of Borrower set forth in this Agreement shall be accurate in all material respects, before and after giving effect to such advance or issuance and to the application of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that date; (b) no Event of Default and no event which, with notice or passage of time or both, would constitute an Event of Default has occurred and is continuing, or would result from such advance or issuance or from the application of any proceeds thereof; (c) no material adverse change has occurred since September 30, 1996 in the Borrower's business, operations, financial condition, or assets (not including any provision for Inventory losses); and (d) FINOVA shall have received such other approvals, opinions or documents required hereunder. (e) in the event that all parties to Validity and Support Agreements have terminated their employment with or are terminated by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)

Subsequent Advances. The obligation of FINOVA the Lenders to make any advance hereunder -------------------- subsequent Advances under the Working Capital Loan as set forth in Section 2 and issue Letters of Credit is subject to satisfaction of the conditions set forth in such Section and the following conditions precedent: (i) The Agent shall have received (with an executed copy for each of the Lenders), a certificate, dated the date of the requested Advance or issuance of the Letter of Credit, and executed by the president or a vice president of Borrower, stating the substance of Subsections 4(b)(ii)(A), (C) and (D); (ii) All representations and warranties contained in Section 8 hereof and in the Security Documents shall be subject to the further conditions precedent that, true on and as of the date of such advance: (a) requested Advance as if then given, and Borrower shall have performed or observed all terms, agreements, conditions and obligations hereunder and under the representations and warranties of Borrower set forth in this Agreement shall Security Documents to be accurate in all material respects, before and after giving effect to such advance performed or issuance and observed on or prior to the application date of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that datesuch requested Advance; (biii) no No Event of Default and no event which, with notice or passage of time or both, would constitute an Unmatured Event of Default has shall have occurred and is continuing, be continuing or would result from such advance or issuance or from the application making of any proceeds thereofthe requested Advance; (civ) Since December 31, 1995, there has been no material adverse change has occurred since September 30, 1996 in the Borrower's business, operationsfinancial position or results of operations of Borrower as assigned by the Partnership to and assumed by Borrower pursuant to the Reorganization; (v) All legal matters relating to the Loan Documents, financial condition, or assets (not including any provision for Inventory losses)such Advance and the consummation of the transactions contemplated thereby shall be reasonably satisfactory to the Agent's counsel; and (dvi) FINOVA Such Advance shall have received not be prohibited by any laws or any regulation or order of any court or governmental authority or agency and shall not subject the Lender to any penalty or other onerous condition under or pursuant to any such other approvalslaw, opinions regulation or documents required hereunderorder. (e) in the event that all parties to Validity and Support Agreements have terminated their employment with or are terminated by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)

Subsequent Advances. The obligation On the date of FINOVA each Advance Request and on each Advance Date (other than with respect to make any advance hereunder the First Initial Advance): (a) he Administrative Agent shall have received all documents it may reasonably request; (b) each of the representations and warranties set forth in this Agreement shall be subject to the further conditions precedent that, true and correct in all material respects on and as of the date of such advance: Advance Request and the Advance Date (a) except to the extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date), except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects as of Borrower the date of such extension of credit (except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct as of such earlier date); (c) the Obligors shall be in compliance with all the terms and provisions set forth herein and in this Agreement shall each other Loan Document on their part to be accurate in all material respectsobserved or performed, before and at the time of and immediately after giving effect to such advance Advance no Default or issuance Event of Default shall have occurred and to the application of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that datecontinuing; (bd) no Event of Default and no event which, with notice that has had or passage of time or both, would constitute an Event of Default could reasonably be expected to have a Material Adverse Effect has occurred and is continuing, or would result from such advance or issuance or from the application of any proceeds thereof; (ce) the Final Order shall have been entered by the Bankruptcy Court not later than thirty-six (36) days following the Petition Date (or, in the case of the Second Initial Advance, the conditions set forth in Section 4.1(u) shall be satisfied as of the date of the applicable Advance Request and on the applicable Advance Date); (f) the Final Order shall be in full force and effect, and shall not (in whole or in part) have been reversed, modified, amended, stayed, or vacated (or, in the case of the Second Initial Advance, the conditions set forth in Section 4.1(u) shall be satisfied as of the date of the applicable Advance Request and on the applicable Advance Date); (g) the Debtors shall be in compliance in all respects with the Final Order (or, in the case of the Second Initial Advance, the Interim Order) and the Obligors shall be in compliance in all respect with the Loan Documents; (h) no material order has been entered reversing, amending, staying, vacating, terminating or otherwise modifying in any manner adverse change has occurred since September 30to the Administrative Agent or the Lenders, 1996 in the Borrower's businessDIP Orders; (i) delivery of an Advance Request; (j) all fees, operationsexpenses (including, financial conditionwithout limitation, legal fees and expenses) and other disbursements payable under the Loan Documents or assets (not including any provision for Inventory losses)otherwise to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have been approved, subject to the provisions of the DIP Orders; provided that payment of such fees, expenses, and other disbursements shall be deferred to the DIP Termination Date; and (dk) FINOVA the Administrative Agent shall have received copies of the “second day” pleadings and orders at least two (2) Business Days before filing such other approvals“second day” pleadings and orders, opinions or documents required hereunder. and the relief requested therein shall be reasonably acceptable in form and substance to the Administrative Agent. Each Advance Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Advance Request and on the applicable Advance Date as to the matters specified in paragraphs (eb), (c) and (d) of this Section 4.2 and as to the matters set forth in the event that all parties to Validity and Support Agreements have terminated their employment with or are terminated by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)Advance Request.

Subsequent Advances. The obligation of FINOVA the Lenders to make any advance hereunder -------------------- subsequent Advances under the Revolver Commitment, all as set forth in Section 2, is subject to satisfaction of the conditions set forth in such Section and the following conditions precedent: (i) The Agent shall have received (with an executed copy for each of the Lenders) a certificate, dated the date of the requested Advance and executed on behalf of Borrower by the president or a vice president of the Borrower, stating the substance of Subsections 3(b)(ii)(A), (C) and (D); (ii) All representations and warranties contained in Section 8 hereof and in the Security Documents shall be subject to the further conditions precedent that, true on and as of the date of such advance: (a) requested Advance as if then given, and Borrower shall have performed or observed all terms, agreements, conditions and obligations hereunder and under the representations and warranties of Borrower set forth in this Agreement shall Security Documents to be accurate in all material respects, before and after giving effect to such advance performed or issuance and observed on or prior to the application date of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that datesuch requested Advance; (biii) no No Event of Default and no event which, with notice or passage of time or both, would constitute an Unmatured Event of Default has shall have occurred and is continuing, be continuing or would result from such advance or issuance or from the application making of any proceeds thereofthe requested Advance; (civ) Since December 31, 1995, there has been no material adverse change has occurred since September 30, 1996 in the Borrower's business, operationsfinancial position or results of operations of Borrower, financial conditionas assigned by the Partnership to and assumed by Borrower pursuant to the Reorganization; (v) All legal matters relating to the Loan Documents, or assets (not including any provision for Inventory losses)such Advance and the consummation of the transactions contemplated thereby shall be reasonably satisfactory to the Agent's counsel; and (dvi) FINOVA Such Advance shall have received not be prohibited by any laws or any regulation or order of any court or governmental authority or agency and shall not subject the Lender to any penalty or other onerous condition under or pursuant to any such other approvalslaw, opinions regulation or documents required hereunderorder. (e) in the event that all parties to Validity and Support Agreements have terminated their employment with or are terminated by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)

Subsequent Advances. (a) The obligation of FINOVA Lenders to make any advance hereunder shall be Advance subsequent to the Closing Date is subject to the further following conditions precedent that, on precedent: (i) All representations and warranties set forth in Sections 5.02 through 5.20 hereof shall be true and accurate as of the date Borrowing Date for such Advance, except to the extent altered by actions permitted pursuant to the terms hereof or to the extent Lenders shall have been advised in writing of any inaccuracy with respect to such advance: (a) the representations and warranties and shall have waived the same in writing; (ii) There shall have occurred no material adverse change in the financial condition, business, prospects, assets, operations, or properties of Borrower set forth Borrower, or in this Agreement shall be accurate the value of the collateral securing Borrower's obligations hereunder, in all material respects, before and after giving effect to such advance or issuance and to each case since the application date of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be the most recent financial statements required to be true as delivered to Agent under Section 7.04(a) of that datethis Agreement; (biii) no No Event of Default and no Default, nor any event which, with upon notice or passage lapse of time or both, would constitute such an Event of Default has Default, shall have occurred and is continuing, be continuing or would result from have occurred after giving effect to the borrowing contemplated by such advance or issuance or from the application of any proceeds thereofAdvance; (civ) no material adverse change has occurred since September 30, 1996 Each such Advance shall continue to be secured by a perfected first priority lien (except as otherwise permitted by this Agreement and the Security Documents) arising under the Security Documents in favor of Agent for the Borrower's business, operations, financial condition, or assets (not including any provision for Inventory losses)ratable benefit of Lenders and Lenders covering the Collateral; and (d) FINOVA shall have received such other approvals, opinions or documents required hereunder. (e) in the event that all parties to Validity and Support Agreements have terminated their employment with or are terminated by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)

Subsequent Advances. The obligation On or before the advance by the Lender of FINOVA to make any advance hereunder the Second Advance, the following conditions shall be subject to satisfied by the further conditions precedent that, on and as of the date of such advanceBorrower: (a) the representations Lender shall have received a proper and warranties of Borrower set forth in this Agreement shall be accurate in all material respects, before and after giving effect to such advance or issuance and to timely Drawdown Notice from the application of any proceeds thereof provided that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that dateBorrower; (b) no Event of Default the representations and warranties set forth in Article 5 shall be true and accurate; (c) no event which, with notice or passage of time or both, shall have occurred which would constitute an Event of Default has occurred and is continuing, or which would constitute an Event of Default with the giving of notice or lapse of time or both nor shall the Advance result from such advance or issuance or from in the application occurrence of any proceeds thereof; (c) no material adverse change has occurred since September 30, 1996 in the Borrower's business, operations, financial condition, or assets (not including any provision for Inventory losses)such event; and (d) FINOVA the Borrower and New ADB shall have received delivered a copy of the minutes of the meeting of shareholders approving the Restructuring, the court order approving the Restructuring and the certificate and articles of arrangement of New ADB issued by the Ministry of Consumer and Business Affairs in connection therewith, all certified by such other approvals, opinions or documents required hereunderofficers of the Borrower and New ADB as the Lender may reasonably require. (e) the Borrower shall have delivered to Lender (i) executed consents in the event that form set forth in Schedule 3.2(e) for all parties Contracts set forth in Schedule 5.18 other than employment contracts entered into by the Borrower not relating to Validity the ▇▇▇.▇▇▇ Assets and Support Agreements have terminated their employment ▇▇▇.▇▇▇ Liabilities as defined in the Co-operation Agreement, and (ii) releases from employees of Old ADB to be employed by New ADB, unless requested otherwise by the Lender, with or are terminated the form of the release to be approved by Borrower, the individual(s) assuming the responsibilities of such individual(s) shall have executed and delivered a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)Lender.

Subsequent Advances. The obligation of FINOVA to Holder shall make any advance hereunder shall be subject Subsequent Advances to the further conditions precedent Corporation on the seventh day following the end of each financial quarter specified below in the respective amount specified below: December 31, 2007 $ 1,500,000 March 31, 2008 $ 2,000,000 June 30, 2008 $ 2,000,000 September 30, 2008 $ 2,000,000 December 31, 2008 $ 2,000,000 March 31, 2009 $ 4,100,000 provided that, on and as of the date of such advance: (a) the representations and warranties of Borrower set forth in this Agreement shall be accurate in all material respects, before and after giving effect to such advance or issuance and Corporation delivers to the application Holder a written request specifying the amount of any proceeds thereof provided the Subsequent Advance at least 20 days before the date of the Subsequent Advance as well as a Compliance Certificate which provides, inter alia, that any representation or warranty which represents or warrants as to matters as of a specific date shall only be required to be true as of that datethe Corporation is in compliance with the Business Plan; (b) no Event the representations, warranties and covenants of the Holder set forth herein and in the Subscription Agreement are true and correct on and as of such date, all as though made on and as of such date (other than changes identified in the Compliance Certificate which do not constitute a Default and no event which, with notice or passage of time or both, would constitute an Event of Default has occurred and is continuing, or would result from such advance or issuance or from the application of any proceeds thereofhereunder); (c) no material adverse change event or condition has occurred since September 30, 1996 in the Borrower's business, operations, financial condition, and is continuing or assets (not including any provision for Inventory losses); andwould result from such Subsequent Advance which would constitute a Default; (d) FINOVA shall have received such other approvals, opinions or documents required hereunder.Subsequent Advance will not violate any Applicable Law then in effect; and (e) in the event that all parties to Validity and Support Agreements have terminated their employment with of a rights offering or are terminated other financing by Borrowerthe Corporation, the individual(sHolder reserves the right to adjust the amount of Subsequent Advances (including reduction thereof) assuming and/or the responsibilities times of such individual(s) payment set out above. If a change of Subsequent Advances is necessary, the Holder and the Corporation shall by mutual agreement determine the amount and timing of Subsequent Advances and any resulting change to the Business Plan or the Use of Proceeds in Schedule “C” to the Subscription Agreement. In the event that any of these conditions are not satisfied, the Holder shall have executed and delivered no obligation to make a Validity and Support Agreement(s) in substantially the same form to FINOVA. (page 3 continued)Subsequent Advance.