Common use of Conditions Precedent to Lender's Obligations Clause in Contracts

Conditions Precedent to Lender's Obligations. Lender shall not be obligated to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by Borrower; (b) the Deed of Trust, duly executed by Borrower; (c) this Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the Guarantor; (e) the Collateral Assignment of Leases and Rents on the Property, duly executed by Borrower; (f) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the Property, duly executed by Borrower; (g) the Environmental Indemnity Agreement on the Property, duly executed by Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by Borrower and Guarantor; (i) the Closing Statement, duly executed by Borrower; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms of the Mortgages; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages as a valid first lien on the Mortgaged Properties, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the Mortgages; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to the Mortgaged Properties; (m) an appraisal of the Mortgaged Properties; (n) financial statements and tax returns for Borrower, and the Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement of Borrower certified by the Sole Member of Borrower; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents of the Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (u) evidence that the Mortgaged Property is not located in a federal or state flood hazard area; (v) certification regarding debts and liens, executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination Fee of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (x) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (y) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender; (z) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property for its intended purposes; and (bb) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.

Conditions Precedent to Lender's Obligations. The obligations of Lender shall not hereunder are subject to the conditions precedent that, on or before the day the initial Advance under the Revolving Credit is to be obligated made or the initial Letter of Credit is to make the Loan hereunder unless be issued, Lender shall have received all of the following, all in form and substance satisfactory to the Lender in all respectsLender: (aA) a copy, certified in writing by a Secretary or Assistant Secretary of each Borrower, of (1) resolutions of the Board of Directors of such Borrower evidencing approval of the Loan Documents and the Acquisition Documents by such Borrower and the matters contemplated thereby, (2) each document evidencing other necessary action and governmental approvals, if any, with respect to the Loan Documents and Acquisition Documents, and (3) such Borrower's charter documents and by-laws; (B) a favorable opinion of independent counsel for Borrowers on such matters and in form and substance acceptable to Lender; (C) a written certificate by the Secretary or an Assistant Secretary of each Borrower as to the names and signatures of the officers of such Borrower authorized to sign the Loan Documents to which such Borrower is a party and the other documents or certificates of such Borrower to be executed and delivered pursuant thereto and to request Advances or the issuance of Letters of Credit; (D) recent certificates, issued by the Secretary of State of the State of Delaware, stating that each Borrower is a corporation duly incorporated and in good standing under the laws of Delaware; (E) recent certificates, issued by the Secretaries of State of each state in which each Borrower does business, stating that such Borrower is in good standing as a foreign corporation under the laws of such state; (F) the Note, Note duly executed by each Borrower; (bG) the Deed of Trust, UCC financing statements required by Lender duly executed by Borrower; (c) this Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the Guarantor; (e) the Collateral Assignment of Leases and Rents on the Property, duly executed by a Borrower; (fH) copies of all real property leases under which a Borrower is lessee or lessor; (I) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on Landlord's Waivers required by Section 3.4 hereof; (J) the Property, Intangible Assignments duly executed by BorrowerBorrowers, acknowledged and in form suitable for recording; (gK) a copy of each and every authorization, permit, consent and approval of and other action by, and notice to and filing with (collectively, "Consents"), every governmental authority and regulatory body which is required to be obtained or made by each Borrower for the Environmental Indemnity due execution, delivery and performance of this Agreement on and the Propertyother Loan Documents and the Acquisition Documents, duly executed by or a certificate of an officer of each Borrower and Guarantorsuch supporting evidence as Lender may request that no such Consents are required; (hL) the Document Re-Execution Agreement, duly executed financial information required by Borrower and GuarantorSection 5.4 hereof relating to Borrowers; (iM) a certificate of insurance confirming that each Borrower has procured insurance policies covering worker's compensation, public liability and completed operations, protecting such Borrower against any liability for loss or damage to persons or property in any way occurring during the Closing Statementprogress of the work or in any way arising from the work, duly executed by Borrowerwhether under the Worker's Compensation Law or otherwise, and whether injury shall be to employees or to persons other than employees. Lender shall be named an additional insured on the liability insurance policy, and the aforesaid certificate shall confirm Lender's status as an additional insured and contain the agreement of the insurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (jN) certificates an original all-risk hazard insurance policy or policies on a full replacement cost basis (with no co-insurance) (including flood insurance, if applicable) for the full insurable value of insurersall Collateral with a standard lender loss payee clause in favor of the Lender, in an amount or other evidence amounts and with a company or companies reasonably satisfactory to Lender, indicating that Borrower and Guarantor have obtained which contains the policies of insurance as are required under the terms agreement of the Mortgagesinsurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (kO) evidence of liability, errors and omissions, and product liability insurance in amounts as are customary in each Borrower's industry and are reasonably acceptable to Lender, with a company or companies reasonably satisfactory to Lender, with a long form endorsement in favor of Lender, and which contains the agreement of the insurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (P) a paid title insurance policy (without survey exception) in the full amount of the Loan issued lien search prepared by a title insurance search company acceptable to Lender (“Title Insurance Company”) and insuring showing no perfected liens against any of the Mortgages as a valid first lien on assets of Borrowers or the Mortgaged Properties, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the MortgagesAcquired Assets; (lQ) UCC-1 financing statements required a lien search prepared by a search company acceptable to evidence Lender showing no perfected liens against any of the trademarks or perfect Lender’s security interest in patents of Borrowers, including without limitation, the personal property affixed to trademarks and patents that are part of the Mortgaged PropertiesAcquired Assets; (mR) an appraisal of such evidence as Lender may reasonably require that each Borrower and its business and the Mortgaged Propertiestransactions contemplated hereby are in full compliance with all federal, state and local environmental laws, ordinances, rules and regulations; (n) financial statements and tax returns for Borrower, and the Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement of Borrower certified by the Sole Member of Borrower; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents of the Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (uS) evidence that the Mortgaged Property is not located in a federal Borrowers have paid or state flood hazard area; (v) certification regarding debts and lienshas made arrangements satisfactory to Lender to pay all fees, executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination Fee of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00) and other fees costs and expenses required to be paid to or on behalf of Lender incurred in connection with the Loan; (x) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (transactions contemplated hereby including, without limitation, approval audit fees, lien search fees, filing fees and the fees and expenses of local, private or public sewage or water utility)Lender's counsel; (yT) certification from Borrower that Borrower is not a party results satisfactory to any existing or pending or threatened litigation, except as previously disclosed to Lender of (1) an examination of the Collateral and Books and Records conducted by Lender; (z) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property for its intended purposes; and (bb) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.

Conditions Precedent to Lender's Obligations. The obligations of Lender shall not hereunder are subject to the conditions precedent that, on or before the day the initial Advance under the Revolving Credit is to be obligated made or the initial Letter of Credit is to make the Loan hereunder unless be issued, Lender shall have received all of the following, all in form and substance satisfactory to the Lender in all respectsLender: (aA) a copy, certified in writing by a Secretary or Assistant Secretary of each Borrower, of (1) resolutions of the Board of Directors of such Borrower evidencing approval of the Loan Documents by such Borrower and the matters contemplated thereby, (2) each document evidencing other necessary action and governmental approvals, if any, with respect to the Loan Documents, and (3) such Borrower's charter documents and by-laws; (B) a favorable opinion of independent counsel for Borrowers on such matters and in form and substance acceptable to Lender; (C) a written certificate by the Secretary or an Assistant Secretary of each Borrower as to the names and signatures of the officers of such Borrower authorized to sign the Loan Documents to which such Borrower is a party and the other documents or certificates of such Borrower to be executed and delivered pursuant thereto and to request Advances or the issuance of Letters of Credit; (D) recent certificates, issued by the Secretary of State of the State of the state of incorporation of each Borrower, stating that such Borrower is a corporation duly incorporated and in good standing under the laws of such state; (E) recent certificates, issued by the Secretaries of State of each state in which each Borrower does business, stating that such Borrower is in good standing as a foreign corporation under the laws of such state; (F) a field audit of the Collateral (performed by auditors selected by Lenders) satisfactory to Lender; (G) the Note, Note duly executed by each Borrower; (bH) the Deed of Trust, UCC financing statements required by Lender duly executed by Borrower; (c) this Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the GuarantorBorrowers; (eI) the Collateral Assignment copies of Leases and Rents on the Property, duly executed by Borrowerall real property leases under which a Borrower is lessee or lessor; (fJ) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the Property, duly executed Landlord's Waivers required by BorrowerSection 3.3 hereof; (gK) a copy of each and every authorization, permit, consent and approval of and other action by, and notice to and filing with (collectively, "Consents"), every governmental authority and regulatory body which is required to be obtained or made by each Borrower for the Environmental Indemnity due execution, delivery and performance of this Agreement on and the Propertyother Loan Documents, duly executed by or a certificate of an officer of each Borrower and Guarantorsuch supporting evidence as Lender may request that no such Consents are required; (hL) a pro forma Compliance Certificate as of the Document Re-Execution AgreementClosing Date using Borrowers' results for the twelve (12) month period ending September 30, duly executed by Borrower and Guarantor1998; (iM) evidence of the Closing Statement, duly executed completion of the transactions contemplated by Borrowerthe Exchange Offer; (jN) certificates the financial information required by Section 5.4 hereof relating to Borrowers; (O) a certificate of insurersinsurance confirming that each Borrower has procured insurance policies covering worker's compensation, public liability and completed operations, protecting such Borrower against any liability for loss or damage to persons or property in any way occurring during the progress of the work or in any way arising from the work, whether under the Worker's Compensation Law or otherwise, and whether injury shall be to employees or to persons other evidence than employees. Lender shall be named an additional insured on the liability insurance policy, and the aforesaid certificate shall confirm Lender's status as an additional insured and contain the agreement of the insurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (P) copies of an all-risk hazard insurance policy or policies on a full replacement cost basis (with no co-insurance) (including flood insurance, if applicable) for the full insurable value of all Collateral with a standard lender loss payee clause in favor of Lender as its interest may appear, in an amount or amounts and with a company or companies reasonably satisfactory to Lender, indicating that Borrower and Guarantor have obtained which contains the policies of insurance as are required under the terms agreement of the Mortgagesinsurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (kQ) evidence of liability, errors and omissions, business interruption, and product liability insurance in amounts as are customary in each Borrower's industry and are reasonably acceptable to Lender, with a company or companies reasonably satisfactory to Lender, with a long form endorsement in favor of Lender, and which contains the agreement of the insurer to give not less than thirty (30) days notice to Lender prior to cancellation of such policies or material change in the coverage thereof; (R) a paid title insurance policy (without survey exception) in the full amount of the Loan issued lien search prepared by a title insurance search company acceptable to Lender (“Title Insurance Company”) and insuring showing no perfected liens against any of the Mortgages as a valid first lien on the Mortgaged Propertiesassets of Borrowers, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the Mortgagesexcluding liens for which termination statements have been received by Lender; (lS) UCC-1 financing statements required to evidence or perfect Lender’s security interest in a payoff letter from the personal property affixed to the Mortgaged Propertieslender for Congoleum's existing revolving credit facility; (mT) an appraisal of the Mortgaged Properties; (n) financial statements such evidence as Lender may reasonably require that each Borrower and tax returns for Borrower, its business and the Guarantor; transactions contemplated hereby are in material compliance with all applicable federal, state and local environmental laws, ordinances, rules and regulations; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement of Borrower certified by the Sole Member of Borrower; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents of the Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (uU) evidence that the Mortgaged Property is not located in a federal Borrowers have paid or state flood hazard area; (v) certification regarding debts and lienshas made arrangements satisfactory to Lender to pay all fees, executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination Fee of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00) and other fees costs and expenses required to be paid to or on behalf of Lender incurred in connection with the Loan; (x) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (transactions contemplated hereby including, without limitation, approval the Facility Fee, the audit fees, lien search fees, filing fees and the fees and expenses of local, private or public sewage or water utility)Lender's counsel; (yV) certification from Borrower that Borrower is not a party results satisfactory to any existing or pending or threatened litigation, except as previously disclosed to Lender of (1) an examination of the Collateral and Books and Records conducted by Lender; (z) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property for its intended purposes; and (bb) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.

Conditions Precedent to Lender's Obligations. Lender shall not be obligated to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by Borrower; (b) the Deed of TrustMortgage, duly executed by Borrower; ; (c) this Agreement, duly executed by each Borrower; ; (d) the Guaranty, duly executed by the each Guarantor; (e) the Collateral Assignment of Leases and Rents on the PropertyRents, duly executed by each Borrower; (f) the Collateral Assignment of Licenses, Contracts, Plans, Permits, & Approvals on the Propertyetc., duly executed by each Borrower; (g) the Environmental Indemnity Agreement on the PropertyAgreement, duly executed by Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by Borrower and Guarantor; (i) the Closing Statement, duly executed by each Borrower; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms of the MortgagesMortgage; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages Mortgage as a valid first lien on the Mortgaged PropertiesProperty, with such endorsements as Lender shall require and subject to the permitted exceptions Permitted Exceptions identified in the MortgagesMortgage; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to now or hereafter owned by the Borrower and located on or used in connection with the Mortgaged PropertiesProperty and UCC-1 financing statements required to perfect Lender’s security interest in the Collateral; (m) an appraisal of the Mortgaged PropertiesProperty; (n) financial statements and tax returns for each Borrower, and the each Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personalitypersonalty, financing statements or title retention agreements filed or recorded against the any Borrower or the Mortgaged Property; (p) a survey of the Mortgaged Property prepared in accordance with the “Minimum Standard Detail Requirements for ALTA and ACSM Land Title Surveys” jointly established by ALTA and ACSM in 2005, as updated, and certified to Lender by a registered land surveyor acceptable to the Lender (“Survey”); (q) copies of all permits or approvals required by any governmental authorities Governmental Authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property;. (qr) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (rs) the operating agreement of Borrower certified by the Sole Member Manager of each Borrower; (st) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower limited liability company authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (tu) resolutions/consents of the Borrower limited liability company authorizing the transactions to be entered into by Borrower in connection with this Agreement; (uv) evidence that the Mortgaged Property is not located in a federal or state flood hazard area; (vw) certification regarding debts and liens, executed by the owner of the Mortgaged Property; (wx) payment of a Loan Origination the Short Interest, the Fee of fourteen thousand nine hundred (as such terms are defined herein and twenty-five and 00/100 Dollars ($14,925.00in the Note) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (xy) opinions of legal counsel to the Borrower with respect to such matters as the Lender may reasonably request including, but not limited to, opinions from Borrower’s local Florida counsel and Borrower’s New Jersey counsel; (z) an opinion of legal counsel to the Guarantor with respect to such matters as the Lender may reasonably request including, but not limited to, opinions from Guarantor’s local Florida counsel and Guarantor’s New Jersey counsel; and (aa) evidence of the appointment of a New Jersey agent to accept service of process on behalf of Borrower and Guarantor, pursuant to the requirements of the Loan Documents; (bb) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (ycc) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender;; and (zdd) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and all Governmental Authorities having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives;. (aaee) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property Collateral for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property Collateral for its intended purposes; and. (bbff) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.;

Conditions Precedent to Lender's Obligations. Lender shall not be obligated to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by Borrower; (b) the Deed of Trust, duly executed by Borrower; (c) this Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the Guarantor; (e) the Collateral Assignment of Leases and Rents on the Property, duly executed by Borrower; (f) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the Property, duly executed by Borrower; (g) the Environmental Indemnity Agreement on the Property, duly executed by Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by Borrower and Guarantor; (i) the Closing Statement, duly executed by Borrower; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms of the Mortgages; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages as a valid first lien on the Mortgaged Properties, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the Mortgages; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to the Mortgaged Properties; (m) an appraisal of the Mortgaged Properties; (n) financial statements and tax returns for Borrower, and the Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement of Borrower certified by the Sole Member of Borrower; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents of the Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (u) evidence that the Mortgaged Property is not located in a federal or state flood hazard area; (v) certification regarding debts and liens, executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination Fee of fourteen fifteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.0015,000.00) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (x) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (y) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender; (z) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property for its intended purposes; and (bb) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.

Conditions Precedent to Lender's Obligations. Lender shall not be obligated The obligation of Lenders to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory investment is subject to the satisfaction of the following conditions precedent at or prior to the Closing (unless waived in writing by each Lender in all respects:prior to Closing): (a) Each of the Noterepresentations and warranties contained in this Agreement must be true and accurate in all material respects as of the date of Closing, duly executed and each Borrower must have performed all of its respective obligations hereunder, including execution and delivery of all of the documents, instruments, opinions and certificates required by Borrowerthis Agreement in such forms as are satisfactory to each Lender and its counsel; (b) Each Lender has completed a due diligence report that reflects favorably on the Deed Borrowers, including the management and the market for the Borrowers' Business generally and that otherwise is satisfactory in form and substance to each Lender in its sole and absolute discretion. In this regard, each Borrower covenants and agrees to furnish to each Lender such information as each Lender may request in order to enable each Lender to complete the required due diligence; (c) Each Lender shall have received each of Trustthe following items: (i) the Debentures, duly executed by each Borrower; ; (cii) this an opinion of counsel, duly executed by counsel to the Borrowers, in form and substance acceptable to each Lender; (iii) a subordination agreement, in form and substance acceptable to each Lender, by and between the Lenders, the Senior Revolver Lender and the other parties named therein (the "Senior Debt Subordination Agreement"), duly executed by the Senior Revolver Lender; (iv) the Junior Debt Subordination Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the Guarantor; (e) the Collateral Assignment of Leases and Rents on the Property, duly executed by Borrower; (f) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the Property, duly executed by Borrower; (g) the Environmental Indemnity Agreement on the Property, duly executed by Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by Borrower and Guarantor; (i) the Closing Statement, duly executed by Borrower; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms holder of the Mortgages; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages as a valid first lien on the Mortgaged Properties, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the Mortgages; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to the Mortgaged Properties; (m) an appraisal of the Mortgaged Properties; (n) financial statements and tax returns for Borrower, and the Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement of Borrower certified by the Sole Member of Borrower; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members of the Borrower authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents of the Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (u) evidence that the Mortgaged Property is not located in a federal or state flood hazard areaJunior Debt; (v) certification regarding debts and liens, the Warrants duly executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination Fee of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (x) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (y) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender; (z) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property for its intended purposesParent; and (bbvi) such an Officer's Certificate, certifying as to (a) the Borrowers' Constituent Documents, as defined in Section 3.01, (b) the resolutions of each Borrower authorizing the transactions contemplated in this Agreement and the other agreementsInvestment Documents, certificates or and (c) the incumbency and specimen signatures of certain officers of the Borrowers. (d) Each other documents as Lender or Title Insurance Company may reasonably requestshall have made the investment contemplated hereby.

Conditions Precedent to Lender's Obligations. Lender's election to purchase the KSI Note and to accept the Note from Borrower is conditional upon the receipt by Lender shall not be obligated to make the Loan hereunder unless Lender shall have received of all of the following, all in each case in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by Borrowerexecuted; (b) this Agreement, duly executed; (c) the Guaranty, duly executed; (d) a Modification to the California Deed of Trust, duly executed by Borrower; (c) this Agreement, duly executed by Borrower; (d) the Guaranty, duly executed by the Guarantorexecuted; (e) a Modification to the Collateral Assignment of Leases and Rents on the PropertyIndiana Mortgage, duly executed by Borrowerexecuted; (f) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the Property, duly executed by Borrower;[Intentionally Omitted] (g) the Environmental Indemnity Agreement on Amended and Restated Stock Option Agreement, dated the Propertydate hereof, duly executed by Borrower between Guarantor and GuarantorLender; (h) payment of the Document Re-Execution Agreement, duly executed by Borrower Restructuring Fee and Guarantorall other fees and expenses referred to in Section 2; (i) the Closing Statementarticles of incorporation of Borrower and Guarantor, duly executed and all amendments thereof, certified by Borrowerthe Secretary of State of Colorado, together with a certificate of said Secretary of State to the effect that each such company is in good standing therein; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms of the Mortgages; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages as a valid first lien on the Mortgaged Properties, with such endorsements as Lender shall require and subject to the permitted exceptions identified in the Mortgages; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to the Mortgaged Properties; (m) an appraisal of the Mortgaged Properties; (n) financial statements and tax returns for Borrower, and the Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (p) copies of all permits or approvals required by any governmental authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property; (q) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (r) the operating agreement By-Laws of Borrower certified by the Sole Member an officer of Borrower; (sk) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members directors and officers of the Borrower such company authorized to sign, in the name and on behalf of Borrower Borrower, this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (tl) resolutions/consents resolutions of the board of directors of Borrower authorizing the transactions to be entered into by Borrower in connection with this Agreement; (um) evidence that an incumbency certificate of Guarantor which shall certify the Mortgaged Property is not located names and titles of the directors and officers of such company authorized to sign, in a federal or state flood hazard areathe name and on behalf of Guarantor, the Guaranty and each other Loan Document to be delivered pursuant to this Agreement by Guarantor, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (vn) certification regarding debts and liens, executed by the owner resolutions of the Mortgaged Property; (w) payment board of a Loan Origination Fee directors of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00) and other fees and expenses required Guarantor authorizing the transactions to be paid to or on behalf of Lender entered into by Guarantor in connection with the LoanGuaranty; (xo) evidence demonstrating current full compliance an incumbency certificate of Calox which shall certify the names and titles of the directors and officers of such company authorized to sign, in the name and on behalf of Calox, the Indiana Mortgage and each other Loan Document to be delivered pursuant to this Agreement by Calox, together with all applicable zoningthe true signatures of such officers, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility)upon which certificate the Lender may conclusively rely; (yp) certification from Borrower that Borrower is not a party resolutions of the board of directors of Calox authorizing the transactions to any existing or pending or threatened litigation, except as previously disclosed to Lenderbe entered into by Calox in connection with the Indiana; (zq) evidence demonstrating receipt an estoppel letter executed by Borrower and Guarantor in favor of all appropriate approvals meeting all applicable requirements Lender certifying that neither Borrower nor Guarantor have any offsets, defenses, claims, counterclaims, causes of action or, any federalrights or remedies whatsoever exercisable against Lender, stateLender's agents, county employees, servants, representatives and attorneys, or municipal governmental agencyspecifying same, boardif any, commissionto Lender, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aa) satisfactory evidence that all roads and utilities necessary for the full utilization as of the Mortgaged Property for its intended purposes have been completed or date that the presently installed and proposed roads and utilities will be sufficient for balance of the full utilization of Mortgaged Property for its intended purposesLoan is requested by Borrower; and (bbr) such other agreements, certificates or other information and documents as Lender or Title Insurance Company may reasonably requestrequested by Lender.

Conditions Precedent to Lender's Obligations. Lender shall not be obligated to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by Borrowerexecuted; (b) the Deed of TrustMortgage, duly executed by Borrower; executed; (c) this Agreement, duly executed by Borrower; executed; (d) the GuarantyAssignment of Leases and Rents, duly executed by the Guarantorexecuted; (e) the Collateral Assignment of Leases and Rents on the PropertyLicenses, duly executed by Borrowerexecuted; (f) the Collateral Assignment of Contracts, Plans, Permits, & Approvals on the PropertyEnvironmental Indemnity Agreement, duly executed by Borrowerexecuted; (g) the Environmental Indemnity Agreement on the Property, duly executed by Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by Borrower and Guarantorexecuted; (i) the Closing Statement, duly executed by Borrower; (jh) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have has obtained the policies of insurance as are required under the terms of the MortgagesMortgage; (ki) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages Mortgage as a valid first lien on the Mortgaged PropertiesProperty, with such endorsements as Lender shall require and subject to the permitted exceptions Permitted Exceptions identified in the MortgagesMortgage; (lj) UCC-1 financing statements required to evidence or perfect Lender’s 's security interest in the personal property affixed to now or hereafter owned by Borrower and located on or used in connection with the Mortgaged PropertiesProperty and UCC-1 financing statements required to perfect Lender's security interest in the Collateral; (mk) an appraisal of the Mortgaged PropertiesProperty; (nl) financial statements and tax returns for Borrower, and the Guarantor; (om) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personality, financing statements or title retention agreements filed or recorded against the Borrower or the Mortgaged Property; (pn) a survey of the Mortgaged Property prepared in accordance with the "Minimum Standard Detail Requirements for ALTA and ACSM Land Title Surveys" jointly established by ALTA and ACSM in [1999] and certified to Lender by a registered land surveyor acceptable to Lender; (o) copies of all permits or approvals required by any governmental authorities Governmental Authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property;Property for retail purposes. (qp) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (q) the articles of organization and certificate of incorporation of Borrower, and all amendments thereof, certified by the Secretary of State of the State where the Collateral is located and in each other state where Borrower conducts its business, together with a certificate of said Secretary of State to the effect that each such company is in good standing therein; (r) the operating agreement By-Laws of Borrower certified by the Sole Member an officer of Borrowersuch company; (s) an incumbency certificate of Borrower which shall certify the names and titles of the officers/members directors and officers of the Borrower such company authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (t) resolutions/consents resolutions of the board of directors of Borrower authorizing the transactions to be entered into by each of Borrower in connection with this Agreement; (u) evidence that the Mortgaged Property is not located in a federal or state flood hazard area; (v) certification regarding debts and liens, executed by the owner of the Mortgaged Property; (w) payment of a Loan Origination the Short Interest, the Fee of fourteen thousand nine hundred and twenty-five and 00/100 Dollars ($14,925.00as such terms are defined in the Note) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (x) opinions of legal counsel to Borrower with respect to such matters as Lender may reasonably request; (y) evidence of the appointment of a New Jersey agent to accept service of process on behalf of Borrower, pursuant to the requirements of the Loan Documents; (z) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (yaa) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender; (zbb) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and all Governmental Authorities having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives; (aacc) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property Collateral for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property Collateral for its intended purposes; and (bbi) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.

Conditions Precedent to Lender's Obligations. Lender shall not be obligated to make the Loan hereunder unless Lender shall have received the following, all in form and substance satisfactory to the Lender in all respects: (a) the Note, duly executed by each Borrower; (b) the Deed of TrustMortgage, duly executed by each Borrower; ; (c) this Agreement, duly executed by each Borrower; ; (d) the Guaranty, duly executed by the each Guarantor; (e) the Collateral Assignment of Leases and Rents on the PropertyRents, duly executed by each Borrower; (f) the Collateral Assignment of Licenses, Contracts, Plans, Permits, & Approvals on the Propertyetc., duly executed by each Borrower; (g) the Environmental Indemnity Agreement on the PropertyAgreement, duly executed by each Borrower and Guarantor; (h) the Document Re-Execution Agreement, duly executed by each Borrower and Guarantor; (i) the Closing Statement, duly executed by each Borrower; (j) certificates of insurers, or other evidence satisfactory to Lender, indicating that Borrower and Guarantor have obtained the policies of insurance as are required under the terms of the MortgagesMortgage; (k) a paid title insurance policy (without survey exception) in the full amount of the Loan issued by a title insurance company acceptable to Lender (“Title Insurance Company”) and insuring the Mortgages Mortgage as a valid first lien on the Mortgaged PropertiesProperty, with such endorsements as Lender shall require and subject to the permitted exceptions Permitted Exceptions identified in the MortgagesMortgage; (l) UCC-1 financing statements required to evidence or perfect Lender’s security interest in the personal property affixed to now or hereafter owned by the Borrower and located on or used in connection with the Mortgaged PropertiesProperty and UCC-1 financing statements required to perfect Lender’s security interest in the Collateral; (m) an appraisal of the Mortgaged PropertiesProperty; (n) financial statements and tax returns for each Borrower, and the each Guarantor; (o) evidence of a search of the public records which discloses no conditional sales contracts, chattel mortgages, leases of personalitypersonalty, financing statements or title retention agreements filed or recorded against the any Borrower or the Mortgaged Property; (p) a survey of the Mortgaged Property prepared in accordance with the “Minimum Standard Detail Requirements for ALTA and ACSM Land Title Surveys” jointly established by ALTA and ACSM in 2005, as updated, and certified to Lender by a registered land surveyor acceptable to the Lender (“Survey”); (q) copies of all permits or approvals required by any governmental authorities Governmental Authorities to such date with respect to Borrower or the Mortgaged Property, to the extent the same are necessary and appropriate to operate and develop the Mortgaged Property;. (qr) an environmental audit of the Mortgaged Property (Phase I and, if necessary Phase II); (rs) the operating agreement of each Borrower certified by the Sole Member Manager of each Borrower; (st) an incumbency certificate of each Borrower which shall certify the names and titles of the officers/members of the Borrower limited liability company authorized to sign, in the name and on behalf of Borrower this Agreement and each other Loan Document to be delivered pursuant to this Agreement by Borrower, together with the true signatures of such officers, upon which certificate the Lender may conclusively rely; (tu) resolutions/consents of the Borrower limited liability company authorizing the transactions to be entered into by Borrower in connection with this Agreement; (uv) evidence that the Mortgaged Property is not located in a federal or state flood hazard area; (vw) certification regarding debts and liens, executed by the owner of the Mortgaged Property; (wx) payment of a Loan Origination the Short Interest, the Fee of fourteen thousand nine hundred (as such terms are defined herein and twenty-five and 00/100 Dollars ($14,925.00in the Note) and other fees and expenses required to be paid to or on behalf of Lender in connection with the Loan; (xy) opinions of legal counsel to the Borrower with respect to such matters as the Lender may reasonably request including, but not limited to, opinions from Borrower’s local Florida counsel and Borrower’s New Jersey counsel; (z) an opinion of legal counsel to the Guarantor with respect to such matters as the Lender may reasonably request including, but not limited to, opinions from Guarantor’s local Florida counsel and Guarantor’s New Jersey counsel; and (aa) evidence of the appointment of a New Jersey agent to accept service of process on behalf of each Borrower and Guarantor, pursuant to the requirements of the Loan Documents; (bb) evidence demonstrating current full compliance with all applicable zoning, health, environmental and safety laws, ordinances and regulations (including, without limitation, approval of local, private or public sewage or water utility); (ycc) certification from Borrower that Borrower is not a party to any existing or pending or threatened litigation, except as previously disclosed to Lender;; and (zdd) evidence demonstrating receipt of all appropriate approvals meeting all applicable requirements of any federal, state, county or municipal governmental agency, board, commission, officer, official or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and all Governmental Authorities having jurisdiction including, but not limited to, subdivision and site plan approvals, potable water supply, sewage discharge and sewage connection, use of septic tanks or alternatives;. (aaee) satisfactory evidence that all roads and utilities necessary for the full utilization of the Mortgaged Property Collateral for its intended purposes have been completed or the presently installed and proposed roads and utilities will be sufficient for the full utilization of Mortgaged Property Collateral for its intended purposes; and. (bbff) such other agreements, certificates or other documents as Lender or Title Insurance Company may reasonably request.;