AND SUBJECT TO GENERAL PRINCIPLES OF
EQUITY, REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW;
SECTION 3.3.
NO CONSENTS, NO CONFLICTS.
THE TRANSACTIONS (A) WILL NOT VIOLATE
ANY APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS, TRUST AGREEMENT OR
OTHER ORGANIZATIONAL DOCUMENTS OF ANY BORROWER OR ANY ORDER OF ANY GOVERNMENTAL
AUTHORITY BINDING ON ANY BORROWER, (B) WILL NOT VIOLATE OR RESULT IN A DEFAULT
UNDER ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON ANY BORROWER,
INCLUDING, WITHOUT LIMITATION, ANY MATERIAL AGREEMENT, OR ANY OF ITS ASSETS, OR
GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE ANY PAYMENT TO BE MADE BY ANY
BORROWER, AND (C) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON
ANY ASSET OF ANY BORROWER OTHER THAN PURSUANT TO THE CREDIT DOCUMENTS.
SECTION 3.4.
DOMESTIC RECEIVABLES.
AS OF THE DATE HEREOF, NEITHER PARENT NOR
ANY SUBSIDIARY OF PARENT (OTHER THAN BORROWER, ARCOTRONICS AND FEC) GENERATES
DOMESTIC RECEIVABLES.
SECTION 3.5.
NO DEFAULT.
NO DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 3.6.
INVESTMENT COMPANY STATUS.
BORROWER IS NOT AN "INVESTMENT
COMPANY" AS DEFINED IN, OR SUBJECT TO REGULATION UNDER, THE INVESTMENT COMPANY
ACT OF 1940.
SECTION 3.7.
SECURITY INTERESTS; CERTAIN INFORMATION.
LENDER HAS A VALID AND
PERFECTED FIRST PRIORITY LIEN ON ALL OF THE COLLATERAL AND ALL FILINGS AND OTHER
ACTIONS NECESSARY FOR THE PERFECTION AND FIRST PRIORITY STATUS OF SUCH LIENS
HAVE BEEN DULY MADE OR TAKEN AND REMAIN IN FULL FORCE AND EFFECT.
SECTION 3.8.
INDEBTEDNESS AGREEMENTS.
AS OF THE CLOSING DATE, BORROWER IS NOT
PARTY TO ANY AGREEMENTS FOR BORROWED MONEY IN AN AGGREGATE PRINCIPAL AMOUNT IN
EXCESS OF $5,000,000 OTHER THAN THE MATERIAL AGREEMENTS.
SECTION 3.9.
DISCLOSURES.
ALL MATERIAL INFORMATION PROVIDED IN EACH COLLATERAL
CERTIFICATE AND ON SCHEDULE I TO THE SECURITY AGREEMENT IS TRUE, CORRECT AND
COMPLETE IN ALL MATERIAL RESPECTS AND DOES NOT CONTAIN ANY MATERIAL MISSTATEMENT
OR OMIT TO STATE A MATERIAL FACT.
ARTICLE IV:
CONDITIONS
Section 4.1.
Closing Date.
The obligations of Lender to make the Loan to
Borrower hereunder shall not become effective until each of the following
conditions is satisfied:
(A)
LENDER SHALL HAVE RECEIVED THE FOLLOWING DOCUMENTS:
(I)
A COUNTERPART OF THIS AGREEMENT EXECUTED BY BORROWER;
(II)
THE SECURITY AGREEMENT EXECUTED BY BORROWER; AND
(III)
A CERTIFICATE OF A RESPONSIBLE OFFICER OF BORROWER CERTIFYING AS
TO (A) ITS GOVERNING DOCUMENTS AS IN EXISTENCE ON THE CLOSING DATE, (B) THE
RESOLUTION OF BORROWER'S BOARD OF DIRECTORS APPROVING AND AUTHORIZING THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE CREDIT DOCUMENTS,
AND (C) THE NAMES AND TRUE SIGNATURES OF EACH OFFICER OF BORROWER THAT HAS BEEN
AUTHORIZED TO EXECUTE ANY DOCUMENT REQUIRED HEREUNDER.
(B)
LENDER SHALL HAVE RECEIVED A DULY EXECUTED COLLATERAL CERTIFICATE.
(C)
LENDER SHALL HAVE RECEIVED LIEN SEARCHES AGAINST BORROWER
INDICATING THAT THERE ARE NO LIENS AGAINST THE COLLATERAL.
(D)
LENDER SHALL HAVE RECEIVED AN OPINION OF COUNSEL TO BORROWER IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO LENDER ADDRESSING SUCH MATTERS AS
LENDER SHALL REASONABLY REQUEST (INCLUDING