OTHER AGREEMENTS OF THE BORROWERS REGARDING THE COLLATERAL COVERED
BY SUCH LOAN DOCUMENTS.
9
ARTICLE 4
CLOSING AND CONDITIONS PRECEDENT TO ADVANCES
Closing under this Agreement and the making of each Revolving Loan are subject
to the following conditions precedent (all documents to be in form and substance
satisfactory to Lender and Lender's counsel):
4.01
RESOLUTIONS, OPINIONS, AND OTHER DOCUMENTS.
PRIOR
TO THE CLOSING, BORROWERS SHALL HAVE DELIVERED TO LENDER THE FOLLOWING:
(A)
THIS AGREEMENT, THE REVOLVING NOTE, AND THE
PERFECTION CERTIFICATE, EACH PROPERLY EXECUTED;
(B)
ANY OTHER LOAN DOCUMENT AND EACH DOCUMENT AND
AGREEMENT REQUIRED TO BE EXECUTED UNDER ANY PROVISION OF THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS;
(C)
CERTIFIED COPIES OF (I) RESOLUTIONS OF EACH
BORROWER'S BOARD OF DIRECTOR(S), OR MANAGER(S), AS APPLICABLE AUTHORIZING THE
EXECUTION OF THIS AGREEMENT, THE REVOLVING NOTE, THE OTHER LOAN DOCUMENTS AND
EACH OTHER DOCUMENT TO WHICH IT IS A PARTY, REQUIRED TO BE DELIVERED BY ANY
SECTION HEREOF AND (II) EACH BORROWER'S ORGANIZATIONAL DOCUMENTS;
(D)
INCUMBENCY CERTIFICATES IDENTIFYING ALL
AUTHORIZED OFFICERS OF EACH BORROWER, WITH SPECIMEN SIGNATURES;
(E)
A WRITTEN OPINION OF BORROWERS' INDEPENDENT
COUNSEL ADDRESSED TO LENDER WHICH SHALL INCLUDE, WITHOUT LIMITATION, AN OPINION
THAT LENDER HAS A PERFECTED SECURITY INTEREST IN THE COLLATERAL;
(F)
PAYMENT BY BORROWERS OF ALL EXPENSES
ASSOCIATED WITH THE CREDIT FACILITY INCURRED TO THE CLOSING DATE AND THE
COMMITMENT FEE;
(G)
THE BUSINESS ASSOCIATE AGREEMENT PROPERLY
EXECUTED;
(H)
THE DEPOSITORY AGREEMENTS REQUIRED PURSUANT
TO SECTION 2.07 HEREOF;
(I)
UNIFORM COMMERCIAL CODE, JUDGMENT,
FEDERAL AND STATE TAX LIEN SEARCHES PURSUANT TO SECTION 3.05 HEREOF, WHICH
SEARCHES SHALL VERIFY THAT LENDER WILL HAVE A FIRST PRIORITY SECURITY INTEREST
IN THE COLLATERAL, SUBJECT TO PERMITTED LIENS;
(J)
AN INITIAL BORROWING BASE CERTIFICATE
DATED THE CLOSING DATE EVIDENCING BORROWER'S AVAILABILITY UNDER THE BORROWING
BASE;
(K)
TO THE EXTENT APPLICABLE, PAYOFF LETTERS AND
RELEASES FROM ALL PERSONS HAVING A SECURITY INTEREST OR OTHER INTEREST IN THE
COLLATERAL, TOGETHER WITH ALL UCC-3 TERMINATIONS OR PARTIAL RELEASES NECESSARY
TO TERMINATE SUCH PERSONS' INTERESTS IN THE COLLATERAL;
(L)
CERTIFICATION BY BORROWERS THAT ALL PAST
DUE PAYROLL AND UNEMPLOYMENT TAXES HAVE BEEN PAID IN FULL AND THAT BORROWERS
REMAIN CURRENT ON SUCH TAXES;
(M)
COPIES OF EACH OF THE ACCREDITATIONS, LICENSES,
PERMITS AND CERTIFICATIONS RELATED TO THE REPRESENTATIONS IN SECTION 5.03
HEREOF, AND ALL CONTRACTS REQUESTED BY LENDER;
(N)
THE FULLY EXECUTED SUBORDINATION AGREEMENTS;
(O)
MONTHLY AND YEAR TO DATE CONSOLIDATED
FINANCIAL STATEMENTS FOR THE MOST RECENT MONTH END PRIOR TO CLOSING (WITHIN
FIFTEEN (15) DAYS PRIOR TO CLOSING OR SUCH SHORTER PERIOD AS LENDER MAY
DETERMINE);
10
(P)
BACKGROUND CHECKS ON THE SENIOR MANAGEMENT OF
BORROWERS;
(Q)
LANDLORD WAIVERS WITH RESPECT TO THE LOCATION
OF BORROWERS' CHIEF EXECUTIVE OFFICE AND EACH OTHER LOCATION WHERE ANY BOOKS AND
RECORDS OF BORROWERS MAY BE KEPT; AND
(R)
EVIDENCE SATISFACTORY TO LENDER THAT THE
REQUIRED INSURANCE IS IN FULL FORCE AND EFFECT AND THAT LENDER HAS BEEN NAMED AS
A LENDER'S LOSS PAYEE OR ADDITIONAL INSURER WITH RESPECT TO SUCH REQUIRED
INSURANCE