Common use of First Borrowing Clause in Contracts

First Borrowing. The obligation of each Lender to make ---------------- its initial Loan is subject to the satisfaction of the following conditions: (a) The Administrative Agent shall have received (i) this Agreement, executed and delivered by a duly authorized officer of each Borrower and each Lender and (ii) the subordinated Guaranty of JCPenney, substantially in the form of Exhibit B, executed and delivered by a duly authorized officer of JCPenney. (b) The Administrative Agent shall have received a Closing Certificate of each Borrower, substantially in the form of Exhibit C, with appropriate insertions and attachments. (c) Acquisition Co. shall have acquired at least 50.1% of the outstanding common stock of Eckerd in accordance with the Tender Offer Materials concurrently with the making of the initial Loans. The Tender Offer Materials shall not have been waived, amended, supplemented or otherwise modified in any material respect (other than to the extent necessary to extend the expiration date of the Tender Offer) without the prior written consent of the Required Lenders. (d) All governmental and third party approvals (including approvals under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976) the absence of which would have a Material Adverse Effect shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which has restrained, prevented or otherwise imposed materially adverse conditions on the Transactions. (e) The Lenders shall have received the upfront fees previously agreed by the Borrowers to be paid to the Lenders. (f) The Administrative Agent shall have received an executed opinion of counsel to the Borrowers, dated the date hereof, substantially in the form of Exhibit D.

First Borrowing. The obligation of each Lender to make ---------------- its initial Loan is subject to On the satisfaction of the following conditions:Closing Date, (a) The Administrative the Agent shall have received the following (in the case of (i), (ii), (iii) and (iv), each dated the Closing Date): (i) this Agreementan opinion of the General Counsel, executed the Associate General Counsel or an Assistant General Counsel of the Borrower addressed to the Lenders and delivered by a duly authorized officer of each Borrower and each Lender and (ii) the subordinated Guaranty of JCPenney, Agent in substantially in the form of Exhibit BB hereto; (ii) a certified copy of the resolutions of the Board of Directors of the Borrower authorizing the execution and delivery of this Agreement; (iii) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the Authorized Officers; (iv) a certificate signed by an Authorized Officer, executed confirming compliance with the conditions set forth in paragraphs (b) and delivered by (c) of Section 4.01 and certifying that except for the legal proceedings identified or referred to on Schedule III (with respect to which such Authorized Officer makes no representation or warranty), there is no pending or, to the knowledge of such Authorized Officer, threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, Governmental Body or arbitrator, which could reasonably be expected to have a duly authorized officer material adverse effect on the business, assets or condition of JCPenney.the Borrower and its Subsidiaries taken as a whole; and (v) all Fees and other amounts due and payable on or prior to the Closing Date; (b) The Administrative Agent there shall not have received a Closing Certificate of each Borrower, substantially occurred any material adverse change in the form business, assets or condition of Exhibit Cthe Borrower and its Subsidiaries taken as a whole since December 31, with appropriate insertions and attachments.2000; and (c) Acquisition Co. the 364-Day Amendment shall have acquired at least 50.1% of been approved by the outstanding common stock of Eckerd in accordance with Borrower, the Tender Offer Materials concurrently with the making of the initial Loans. The Tender Offer Materials shall not have been waived, amended, supplemented or otherwise modified in any material respect (other than to the extent necessary to extend the expiration date of the Tender Offer) without the prior written consent of Agent and the Required Lenders. (d) All governmental and third party approvals (including approvals under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976) the absence of which would have a Material Adverse Effect shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which has restrained, prevented or otherwise imposed materially adverse conditions on the Transactions. (e) The Lenders shall have received the upfront fees previously agreed by the Borrowers to be paid to the Lenders. (f) The Administrative Agent shall have received an executed opinion of counsel to the Borrowers, dated the date hereof, substantially in the form of Exhibit D.

First Borrowing. The obligations of the Lenders to make Loans --------------- hereunder, and the obligation of each Lender the Issuing Bank to make ---------------- its initial Loan is issue Letters of Credit hereunder, are subject to the satisfaction of the following conditions:conditions that on the date of the first Borrowing hereunder (such date being referred to herein as the "Closing Date"): ------------- (a) The Administrative Agent shall have received counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telegraphic, telex, telecopy or other written confirmation from such party in form satisfactory to the Agent of the execution of a counterpart hereof by such Lender). (b) The Agent shall have received (i) this Agreementfor the account of each Lender, executed and delivered by a duly authorized officer executed Note or Notes, dated the Closing Date, complying with the provisions of each Borrower and each Lender Section 2.04 and (ii) for the subordinated Guaranty account of JCPenneythe Swingline Lender, substantially in the form of Exhibit B, executed and delivered by a duly authorized officer executed Swingline Note, dated the Closing Date, complying with the provisions of JCPenney. (b) The Administrative Agent shall have received a Closing Certificate of each Borrower, substantially in the form of Exhibit C, with appropriate insertions and attachmentsSection 2.04. (c) Acquisition Co. The Agent on behalf of the Secured Parties shall have acquired at least 50.1a security interest in the Collateral of the type and priority described in each Collateral Document, perfected to the extent contemplated by Section 3.18 and the Agent shall have received: (i) counterparts of the Security Agreement, duly executed by the Borrower, and a duly completed and executed Perfection Certificate from the Borrower; (ii) certificates representing 65% of the all outstanding common stock Capital Stock of Eckerd in accordance with the Tender Offer Materials concurrently with the making of the initial Loans. The Tender Offer Materials shall not have been waived, amended, supplemented or otherwise modified in any material respect each Foreign Subsidiary (other than uncertificated Capital Stock of Firearms Training Systems Netherlands B.V.), accompanied by stock powers endorsed in blank, and the Intercompany Notes, duly executed by each Foreign Subsidiary, accompanied by assignments executed in blank; (iii) an acknowledgement copy, or other evidence satisfactory to the extent necessary to extend the expiration date Agent, of the Tender Offerproper filing, registration or recordation of each document (including each Uniform Commercial Code financing statement) without required by law or reasonably requested by the prior written consent Agent to be filed, registered or recorded in each jurisdiction and to each Governmental Authority in which or to which the filing, registration or recordation is so required or requested in order to create in favor of the Required Lenders.Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or lien on the Collateral that is the subject of the Security Agreement or any Pledge Agreement; (div) All governmental and third party approvals certified copies of Requests for Information or Copies (including approvals under the form UCC-11), or equivalent reports from ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976) Financial Services or other independent search service satisfactory to the absence of which would have a Material Adverse Effect shall have been obtained and be in full force and effectAgent, and all applicable waiting periods shall have expired without any action being taken by any competent authority which has restrained, prevented or otherwise imposed materially adverse conditions on the Transactions.listing (eA) The Lenders shall have received any judgment naming the upfront fees previously agreed Borrower or any other Loan Party, as judgment debtor, (B) any tax lien that names the Borrower or any other Loan Party as a delinquent taxpayer in any of the jurisdictions referred to in clause (iii) above and (C) any Uniform Commercial Code financing statement that names the Borrower or any other Loan Party as debtor filed in any of the jurisdictions referred to in clause (iii) above; (v) appropriate duly executed termination statements (Form UCC-3) signed by all persons disclosed as secured parties in the jurisdictions referred to in clause (iii) above (other than holders of Liens permitted under Section 6.02) in form for filing under the Uniform Commercial Code of such jurisdictions; (vi) an escrow agreement or payoff letter in form and substance satisfactory to the Agent executed by the Borrowers existing lenders and holders of Liens (other than Liens permitted under Section 6.02) in respect of the Borrower and the Subsidiaries pursuant to be paid which such lenders and Lien holders will, among other things, deliver the termination statements referred to in clause (v) above into escrow pending the Closing; (vii) counterparts of the Buyer Pledge Agreement, duly executed by the Buyers; (viii) counterparts of the Seller Pledge Agreement, duly executed by the Seller; (ix) counterparts of (A) a valid and binding pledge agreement effective under the laws of the Netherlands Antilles to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of Firearms Training Systems Netherlands B.V. and (B) a valid and binding pledge agreement effective under the laws of Singapore to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of F.A.T.S. Singapore PTE LTD.; (x) certificates representing all the Common Stock outstanding after giving effect to the Lenders.Recapitalization, accompanied by stock powers endorsed in blank; (fxi) The Administrative Agent shall have received counterparts of each Agency Account Agreement or other Collateral Document requested by the Agent, duly executed by the parties thereto; and (xii) counterparts of an executed opinion Acknowledgement of counsel to the Borrowers, dated the date hereofSubordination, substantially in the form of Exhibit D.R, duly executed by each of the Subsidiaries. (d) The Agent shall have received an opinion of each of (i) the appropriate counsel to the Loan Parties necessary to give those opinions set forth in Exhibit L-1 hereto, Georgia counsel to the Borrower in the form of Exhibit L-2 hereto and Singapore and Netherlands counsel to the Borrower in form and substance satisfactory to the Lenders and (ii) copies of each opinion required to be delivered by counsel to the Borrower, the Buyer and the Seller pursuant to the Recapitalization Agreement, accompanied in each case by a letter, unless such opinion is addressed to the Agent and the Lenders or expressly includes a reliance provision, from the counsel rendering such opinion, stating that the Agent and the Lenders are entitled to rely on such opinion as if it were addressed to the Agent and the Lenders; each such opinion or reliance letter, as the case may be, referred to in clauses (i) and (ii) shall be dated the Closing Date and addressed to the Agent and the Lenders. (e) The Agent shall have received counterparts of the Junior Subordination Agreement duly executed by the Sponsor, the Buyers and the Borrower as of the Closing Date. (f) The Agent shall have received: (i) a certificate, dated the Closing Date and signed by a Financial Officer of each of the Borrower and the Subsidiaries confirming compliance with the conditions precedent set forth in paragraphs (h), (i), (j), (l), (o), (p), (q) and (s) of this Section 4.01 and in paragraphs (b), (c) and (d) of Section 4.02; (ii) a copy of the long form certificate of incorporation or other constitutive documents, including all amendments thereto, of each of the Loan Parties, certified as of a recent date by the Secretary of State (or comparable authority) of the jurisdiction of its organization, and a certificate as to the good standing of each such party as of a recent date, from such Secretary of State (or other authority); (iii) a certificate of the Secretary or Assistant Secretary of each of the Loan Parties dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or comparable governing instruments of such 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 or comparable governing body of such party (or, in the case of any partnership, of the general partner of such party) authorizing the execution, delivery and performance of the Loan Documents to which such party is or will be a party, and, in the case of the Borrower, the consummation of the Recapitalization and extensions of credit 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 other constitutive documents of such party 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, (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 such party and (E) with respect to the Borrower, that attached thereto is a true and complete executed copy of the Recapitalization Agreement, the Note Documents and all other documents and instruments executed and delivered therewith; and (iv) such other documents, opinions, certificates and agreements in connection with the Facilities, in form and substance satisfactory to the Agent, as it shall reasonably request. (g) The Borrower shall have paid all Fees and other amounts due and payable to the Agent or any Lender on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Fee Letter or any Loan Document (to the extent invoices or statements therefor have been received). (h) All conditions set forth in the Recapitalization Agreement to the obligations of the Buyers shall have been satisfied; the Recapitalization Agreement shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived, without the prior written consent of the Agent. (i) All components of the Recapitalization shall have been consummated in accordance with the terms of the Recapitalization Agreement and in compliance with applicable law and regulatory approvals simultaneously with the first Borrowing hereunder, including the receipt of 95 $36,000,000 of gross proceeds from the Equity Purchase and $40,000,000 of gross proceeds from the Permitted Senior Subordinated Notes. (i) The terms and conditions applicable to the Permitted Junior Preferred Stock shall comply with Section 6.01(f) and shall otherwise be reasonably satisfactory to the Agent and the Lenders and (ii) the terms and conditions applicable to the Permitted Senior Subordinated Notes, the Permitted Senior Preferred Stock and the Warrants shall not have been changed in any material respect from those set forth in the letter agreement and summary of principal terms and conditions from NationsBridge, L.L.C. dated June 5, 1996. (k) The Agent shall have received and approved the monthly working capital detail of the Borrower for the first projected fiscal year after Closing and pro forma financial statements of the Borrower and the Subsidiaries as of, and for the 12 months ended on, March 31, 1996, giving effect to the Recapitalization and the transactions contemplated hereby, prepared by the Borrower. (l) No Material Adverse Change shall have occurred since March 31, 1996. (m) The Agent shall have received certification in form and substance satisfactory to the Agent as to the financial condition, available surplus and solvency of the Borrower and the Subsidiaries (after giving effect to the Recapitalization) from an independent firm acceptable to the Agent; provided -------- that the firm of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ shall be acceptable to the Agent. (n) The Agent shall have received (i) satisfactory opinions of counsel to the Loan Parties (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the documents for the Facilities) and such corporate resolutions, certificates and other documents as the Agent shall reasonably require and (ii) satisfactory evidence that the Agent (on behalf of the Lenders) holds a perfected, first priority Lien in all Collateral for the Facilities, subject to no other Liens, except for Liens permitted under Section 6.02. (o) The Agent shall have received satisfactory evidence that the Borrower has obtained all governmental, shareholder and third party consents and approvals and expiration of all applicable waiting or appeal periods necessary or, in the opinion of the Agent, appropriate in connection with the Facilities and the pledge of the Collateral for the Facilities without any action being taken that could restrain, prevent or impose any material adverse condition on the Borrower and the Subsidiaries or the Recapitalization or that could seek or threaten any of the foregoing, and no law or regulation or condition shall be applicable which in the judgment of the Agent could have such effect; provided -------- that no failure of the foregoing condition shall be deemed to have occurred as a result of a failure to obtain a novation with the Seller of the Borrower's contracts with departments or agencies of the United States Government to supply the United States Government with simulators which is required because of the Equity Purchase and the Redemption. (p) There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or other Governmental Authority that purports to adversely affect the Facilities or that could have a material adverse effect on the ability of the Borrower and the Subsidiaries to perform their obligations under the documents to be executed in connection with the Facilities, except as disclosed to and approved by the Agent prior to the date hereof. (q) There shall be no less than $5,000,000 of Unused Revolving Credit Commitments and cash of the Borrower and the Subsidiaries on hand at Closing after giving effect to the Recapitalization. (r) There shall not have occurred and be continuing (i) a material adverse change in the market for syndicated bank credit facilities or (ii) a material disruption of, or a material adverse change in, financial, banking or capital market conditions. (s) Each Notice of Assignment required under the Assignment of Claims Act of 1940, as amended, with respect to all U.S. Federal Government Contracts shall have been filed with the applicable Governmental Authority in order to assign to the Agent all moneys due or to become due under each such Government Contract (other than (i) those Government Contracts identified as completed on Schedule 13 to the Security Agreement and (ii) Government Contract GS-02F-0414D with the General Services Administration) with a total current or potential value exceeding $500,000.