THE APPOINTMENT BY THE OTHER BORROWERS
OF ANOTHER BORROWER AS SUCCESSOR AGENT FOR SUCH BORROWERS HEREUNDER, AND
ACCEPTANCE BY SUCH BORROWER OF SUCH APPOINTMENT AND (II) THE DATE THAT IS 30
DAYS AFTER DELIVERY OF NOTICE BY BMCA OF ITS RESIGNATION.
AT ANY TIME THAT
THERE IS NO BORROWER ACTING AS AGENT HEREUNDER OR UNDER ANY OF THE LOAN
DOCUMENTS, ALL RIGHTS AND OBLIGATIONS OF THE BORROWERS, INCLUDING THE DELIVERY
OF SUCH NOTICES, REQUESTS, CERTIFICATES, STATEMENTS AND OTHER
47
DOCUMENTS, PERMITTED TO BE EXERCISED OR PERFORMED BY BORROWER AS SUCH AGENT ON
BEHALF OF THE BORROWERS SHALL BE PERFORMED BY THE BORROWERS IN RESPECT OF THE
LOAN DOCUMENTS.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01.
Conditions Precedent to Initial Term Loan Borrowing.
Each of
the following conditions precedent shall be satisfied in order for the Lenders
to make Term Loan Advances pursuant to the Initial Term Loan Borrowing (and the
date on which all such conditions are satisfied is the "Closing Date"):
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED ON OR BEFORE THE CLOSING DATE THE FOLLOWING, EACH DATED AS OF SUCH DAY
(UNLESS OTHERWISE SPECIFIED), IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ADMINISTRATIVE AGENT AND (EXCEPT FOR THE NOTES) IN SUFFICIENT COPIES FOR
EACH LENDER:
(I)
COUNTERPARTS OF THIS AGREEMENT EXECUTED
BY EACH OF THE PARTIES HERETO;
(II)
THE NOTES PAYABLE TO THE ORDER OF THE
LENDERS TO THE EXTENT REQUESTED BY THE LENDERS PURSUANT TO THE TERMS OF
SECTION 2.15;
(III)
A GUARANTY IN SUBSTANTIALLY THE FORM OF
EXHIBIT J HERETO (THE "GUARANTY") DULY EXECUTED BY BMCA AND EACH DOMESTIC
SUBSIDIARY OF BMCA;
(IV)
COPIES OF REPORTS IN RESPECT OF COMPLETED LIEN
SEARCHES (AS OF A RECENT DATE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE
AGENT), LISTING ALL EFFECTIVE FINANCING STATEMENTS THAT NAME ANY LOAN PARTY AS
DEBTOR FILED IN ANY JURISDICTION RELEVANT TO THE PERFECTION OF THE LIENS CREATED
UNDER THE SECURITY AGREEMENT IN THE COLLATERAL DESCRIBED THEREIN AND OWNED BY
SUCH LOAN PARTY;
(V)
CERTIFIED COPIES OF THE RESOLUTIONS OF THE
BOARD OF DIRECTORS OR BOARD OF MANAGERS, AS APPLICABLE, OF EACH LOAN PARTY
APPROVING THIS AGREEMENT AND EACH LOAN DOCUMENT TO WHICH IT IS OR IS TO BE A
PARTY, AND COPIES OF ALL DOCUMENTS EVIDENCING OTHER NECESSARY CORPORATE OR
LIMITED LIABILITY COMPANY ACTION AND GOVERNMENTAL AND OTHER THIRD PARTY
APPROVALS AND CONSENTS, IF ANY, WITH RESPECT TO THE TRANSACTION AND EACH LOAN
DOCUMENT TO WHICH IT IS OR IS TO BE A PARTY;
(VI)
A COPY OF A CERTIFICATE OF THE SECRETARY OF
STATE OF THE JURISDICTION OF ORGANIZATION OF EACH LOAN PARTY, DATED REASONABLY
NEAR THE CLOSING DATE, CERTIFYING (A) AS TO A TRUE AND CORRECT COPY OF THE
CHARTER OR OTHER CONSTITUENT DOCUMENT OF SUCH LOAN PARTY AND EACH AMENDMENT
THERETO ON FILE IN SUCH SECRETARY'S OFFICE AND (B) THAT (1) SUCH AMENDMENTS ARE
THE ONLY AMENDMENTS TO SUCH LOAN PARTY'S CHARTER OR OTHER CONSTITUENT DOCUMENT
ON FILE IN SUCH SECRETARY'S OFFICE, (2) SUCH LOAN PARTY HAS PAID ALL FRANCHISE
TAXES TO