Lender will have no obligation
under this Agreement or any other Loan Document until each of the following
conditions is satisfied (or waived in accordance with Section 8.02):
(A)
LENDER HAS RECEIVED ALL FEES AND OTHER AMOUNTS DUE AND PAYABLE ON
OR PRIOR TO THE DATE HEREOF, INCLUDING THE FEES AND AMOUNTS FOR REIMBURSEMENT OR
PAYMENT OF ALL OUT-OF-POCKET EXPENSES REQUIRED TO BE REIMBURSED OR PAID BY
BORROWER PURSUANT TO THIS AGREEMENT, UNDER ANY OTHER LOAN DOCUMENT, OR ANY OTHER
AGREEMENT WITH LENDER.
(B)
BORROWER HAS DELIVERED TO LENDER DULY EXECUTED COUNTERPARTS OF THE
FOLLOWING, EACH IN FORM AND SUBSTANCE ACCEPTABLE TO LENDER IN ALL RESPECTS:
(1)
THE MASTER AGREEMENT;
(2)
EACH OF THE FIRST SUPPLEMENT, SECOND SUPPLEMENT AND THIRD
SUPPLEMENT TO THIS MASTER AGREEMENT, ALONG WITH ALL NOTES AND OTHER DOCUMENTS,
INSTRUMENTS AND AGREEMENTS REQUIRED THEREUNDER;
(3)
THE DULY EXECUTED SECURITY AGREEMENT, TOGETHER WITH UCC-1
FINANCING STATEMENTS AND OTHER APPLICABLE DOCUMENTS UNDER THE LAWS OF THE
JURISDICTIONS WITH RESPECT TO THE PERFECTION OF THE LIENS GRANTED UNDER THE
SECURITY AGREEMENT IN ORDER TO PERFECT SUCH LIENS, DULY AUTHORIZED FOR FILING BY
BORROWER;
(4)
ALL CONTROL AGREEMENTS REQUIRED UNDER SECTION 6.13, IF ANY;
(5)
THE MORTGAGE, FULLY NOTARIZED, TOGETHER WITH EVIDENCE THAT IT HAS
BEEN RECORDED IN ALL PLACES TO THE EXTENT NECESSARY OR DESIRABLE, IN THE
JUDGMENT OF LENDER, TO CREATE A VALID AND ENFORCEABLE FIRST PRIORITY LIEN
(SUBJECT TO PERMITTED ENCUMBRANCES) ON THE FEE SIMPLE ESTATE (OR LEASEHOLD OR
OTHER INTEREST IF AGREEABLE TO LENDER) OF THE REAL ESTATE, TOGETHER WITH UCC
FIXTURE FINANCING STATEMENTS, AS APPLICABLE;
(6)
COLLATERAL ASSIGNMENTS OF ALL MATERIAL CONTRACTS, TOGETHER WITH
COPIES OF SUCH MATERIAL CONTRACTS, CERTIFIED BY A RESPONSIBLE OFFICER AS BEING
IN FULL FORCE AND EFFECT, AND NOT SUBJECT TO A DEFAULT BY ANY PARTY THERETO; AND
(7)
THE CONSENT AND WAIVER OF BORROWER RIGHTS.
(C)
LENDER HAS RECEIVED AS OF THE CLOSING DATE (OR SUCH OTHER DATE
SPECIFIED IN THIS SECTION 2.01(C)) THE FOLLOWING, EACH IN FORM AND SUBSTANCE
ACCEPTABLE TO LENDER IN ALL RESPECTS:
5
(1)
A COMMITMENT FROM A TITLE COMPANY ACCEPTABLE TO LENDER, IN ITS
SOLE DISCRETION, TO ISSUE A TITLE INSURANCE POLICY ASSURING LENDER THAT THE
MORTGAGE CREATES A VALID AND ENFORCEABLE ENCUMBRANCE ON THE REAL ESTATE, FREE
AND CLEAR OF ALL DEFECTS AND ENCUMBRANCES EXCEPT PERMITTED ENCUMBRANCES;
(2)
COPIES OF FAVORABLE UCC, TAX, JUDGMENT, BANKRUPTCY AND FIXTURE
LIEN SEARCH REPORTS (OR OTHER EVIDENCE OF THE SAME SATISFACTORY TO LENDER) IN
ALL NECESSARY OR APPROPRIATE JURISDICTIONS AND UNDER ALL LEGAL AND TRADE NAMES
OF BORROWER AND ALL OTHER PARTIES REQUESTED BY LENDER, INDICATING THAT THERE ARE
NO PRIOR LIENS ON ANY OF THE COLLATERAL OTHER THAN PERMITTED ENCUMBRANCES;
(3)
DULY EXECUTED LANDLORD WAIVERS AND/OR WAREHOUSEMAN, OR BAILEE
AGREEMENTS WITH RESPECT TO ALL INVENTORY OF BORROWER LOCATED AT LEASED LOCATIONS
OR OTHER LOCATIONS NOT OWNED BY BORROWER IN FEE SIMPLE, IF ANY, ALONG WITH A
CERTIFIED COPY OF ALL LEASES OF BORROWER, IF ANY;
(4)
CERTIFIED COPIES OF THE ARTICLES OF ORGANIZATION OR OTHER CHARTER
DOCUMENTS