STATEMENTS AND PROJECTIONS.
LENDER SHALL HAVE RECEIVED (I) CONSOLIDATED FINANCIAL STATEMENTS OF BORROWER FOR
THE 2007 THROUGH 2009 FISCAL YEARS PREPARED BY THE BORROWER (PROVIDED THAT THE
BORROWER SHALL BE PERMITTED TO PROVIDE A BALANCE SHEET ONLY FOR ITS 2007 FISCAL
YEAR), (II) UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS OF BORROWER FOR
EACH FISCAL MONTH AND QUARTER ENDED AFTER THE DATE OF THE LATEST APPLICABLE
FINANCIAL STATEMENTS DELIVERED PURSUANT TO CLAUSE (I) OF THIS PARAGRAPH AS TO
WHICH SUCH FINANCIAL STATEMENTS ARE AVAILABLE, AND SUCH FINANCIAL STATEMENTS
SHALL NOT, IN THE REASONABLE JUDGMENT OF LENDER, REFLECT ANY MATERIAL ADVERSE
CHANGE IN THE CONSOLIDATED FINANCIAL CONDITION OF BORROWER, AS REFLECTED IN
39
THE FINANCIAL STATEMENTS OR PROJECTIONS FURNISHED TO LENDER AND
(III) SATISFACTORY PROJECTIONS THROUGH JUNE 30, 2010.
(C)
CLOSING CERTIFICATES; CERTIFIED CERTIFICATE
OF INCORPORATION; GOOD STANDING CERTIFICATES.
LENDER SHALL HAVE RECEIVED (I) A
CERTIFICATE OF BORROWER, DATED THE EFFECTIVE DATE AND EXECUTED BY AN OFFICER OF
BORROWER, WHICH SHALL (A) CERTIFY THE RESOLUTIONS OF ITS BOARD OF DIRECTORS,
AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS,
(B) IDENTIFY BY NAME AND TITLE AND BEAR THE SIGNATURES OF THE FINANCIAL OFFICERS
AND ANY OTHER OFFICERS OF BORROWER AUTHORIZED TO SIGN THE LOAN DOCUMENTS, AND
(C) CONTAIN APPROPRIATE ATTACHMENTS, INCLUDING THE CERTIFICATE OF INCORPORATION
OF BORROWER CERTIFIED BY THE DELAWARE SECRETARY OF STATE AS OF A RECENT DATE AND
A TRUE AND CORRECT COPY OF ITS BY-LAWS, AND (II) GOOD STANDING CERTIFICATES FOR
BORROWER FROM THE STATES OF DELAWARE AND WISCONSIN.
(D)
NO DEFAULT CERTIFICATE.
LENDER SHALL HAVE
RECEIVED A CERTIFICATE, SIGNED BY THE CHIEF FINANCIAL OFFICER OF BORROWER, ON
THE INITIAL BORROWING DATE (I) STATING THAT NO DEFAULT HAS OCCURRED AND IS
CONTINUING, (II) STATING THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
ARTICLE III ARE TRUE AND CORRECT AS OF SUCH DATE, AND (III) CERTIFYING ANY OTHER
FACTUAL MATTERS AS MAY BE REASONABLY REQUESTED BY LENDER.
(E)
FEES.
LENDER SHALL HAVE RECEIVED ALL FEES
REQUIRED TO BE PAID, AND ALL EXPENSES FOR WHICH INVOICES HAVE BEEN PRESENTED
(INCLUDING THE REASONABLE FEES AND EXPENSES OF LEGAL COUNSEL), ON OR BEFORE THE
EFFECTIVE DATE.
(F)
LIEN SEARCHES.
LENDER SHALL HAVE
RECEIVED THE RESULTS OF A RECENT LIEN SEARCH IN EACH OF THE JURISDICTIONS WHERE
ASSETS OF BORROWER ARE LOCATED, AND SUCH SEARCH SHALL REVEAL NO LIENS ON ANY OF
THE ASSETS OF BORROWER EXCEPT FOR LIENS PERMITTED BY SECTION 6.02 OR DISCHARGED
ON OR PRIOR TO THE EFFECTIVE DATE PURSUANT TO A PAY-OFF LETTER OR OTHER
DOCUMENTATION SATISFACTORY TO LENDER.
(G)
PAY-OFF LETTER.
LENDER SHALL HAVE RECEIVED
SATISFACTORY PAY-OFF LETTERS FOR ALL EXISTING INDEBTEDNESS TO BE REPAID FROM THE
PROCEEDS THE INITIAL BORROWING, CONFIRMING THAT ALL LIENS UPON ANY OF THE
PROPERTY OF BORROWER CONSTITUTING COLLATERAL WILL BE TERMINATED CONCURRENTLY
WITH SUCH PAYMENT AND ALL LETTERS OF CREDIT ISSUED OR GUARANTEED AS PART OF SUCH
INDEBTEDNESS SHALL HAVE BEEN CASH COLLATERALIZED OR SUPPORTED BY A LETTER OF
CREDIT.
(H)
BORROWING BASE CERTIFICATE.
LENDER SHALL
HAVE RECEIVED A BORROWING BASE CERTIFICATE WHICH