Common use of Conditions Precedent to Term Loan Clause in Contracts

Conditions Precedent to Term Loan. The obligation of the Lender to make the Term Loan is subject to satisfaction of the following conditions precedent: (a) The Lender’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lender: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and the Borrower; (ii) a Term Note executed by the Borrower in favor of the Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (iv) such documents and certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; 57526638_5 (v) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx & Whitney, LLP as special counsel to the Borrower, each addressed to the Lender, in the form of Exhibit E; (vi) a certificate of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer certifying (A) that the representations and warranties of the Borrower contained in Article V of this Agreement, or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsection (a) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no Default shall exist, or would result from the proposed borrowing hereunder and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and (ix) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Lender, the Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender).

Conditions Precedent to Term Loan. The obligation obligations of the Lender Lenders to make the Term Loan is hereunder, are subject to satisfaction the prior fulfillment of each of the following conditions precedentconditions: (a) The Lender’s receipt Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) This duly executed Agreement; (ii) A duly executed Term Loan Note payable to the order of each Lender requesting a promissory note in the amount of such Lender’s Term Loan Ratio of the aggregate principal amount of the Term Loan; (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto; (iv) A Copyright Security Agreement duly executed by the Borrower Parties; (v) A Trademark Security Agreement duly executed by the Borrower Parties; (vi) The Pledge Agreement duly executed by the Borrower Parties, together with (A) copies of the original stock certificates (which original stock certificates on the Agreement Date are to be delivered to and held by the Senior Credit Facility Agent subject to the SunTrust Intercreditor Agreement) evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Pledge Agreement and (B) original stock powers or other appropriate instruments of transfer executed in blank; (vii) The duly executed Blocked Account Agreements required by Section 6.15; (viii) The Fee Letter duly executed by the Borrower; (ix) Valuations by the Administrative Agent’s field examiners reflecting values of the Borrower Parties’ Accounts and other personal property at levels acceptable to the Administrative Agent; (x) The legal opinion of Arent Fox PLLC, counsel to the Borrower, addressed to the Lender Group; (xi) The duly executed Request for Term Loan; (xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date; (xiii) Duly executed Collateral Access Agreements with respect to the Borrower’s leased premises or goods in the possession of bailees; (xiv) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of Delaware, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents and the Senior Credit Facility Documents and authorizing the borrowings hereunder and thereunder, (D) certificates of good standing from each jurisdiction in the US in which such Borrower Party does business, (E) copies of employment contracts for the following management level employees of such Borrower Party: Xxxxx Xxxx, and (F) copies of all shareholder agreements currently in effect relating to the Equity Interests of such Borrower Party or share purchase agreements for equity interests that have not been issued (other than pursuant to a Plan) relating to the Equity Interests of such Borrower Party; (xv) A solvency certificate executed by an Authorized Signatory of the Borrower regarding the solvency and financial condition of the Borrower Parties, together with a pro forma balance sheet giving effect to the incurrence of the Senior Credit Facility Obligations and the incurrence of the Term Loan; (xvi) The duly executed SunTrust Intercreditor Agreement; (xvii) A certificate signed by an Authorized Signatory of the Borrower certifying as true, correct and complete (and attaching thereto) a copy of the fully executed Senior Credit Facility Agreement, together with all exhibits and schedules thereto, and certifying as to the matters described in Section 4.1(c); (xviii) a Vendor Intercreditor Agreement duly executed by each of the parties thereto; (xix) Borrower’s (A) 2006 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (B) annual projections, including income statement, balance sheet and statement of cash flows, through the Maturity Date; (xx) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5; (xxi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax liens, against the assets of the Borrower Parties; (xxii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices (including the United States Patent and Trademark Office and the United States Copyright Office); (xxiii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens (including the Permitted Liens in favor of the Senior Credit Facility Agent securing the Senior Credit Facility Obligations, which Liens are subject to the SunTrust Intercreditor Agreement)); (xxiv) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, reasonable fees and expenses of counsel to the Administrative Agent; (xxv) A flow of funds report and disbursement letter, in each case, duly executed by the Borrower, which report shall include a statement of all sources and uses of funds on the Agreement Date and which disbursement letter shall be originals acceptable to the Administrative Agent in all respects; and (xxvi) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or telecopies an Authorized Signatory if so requested. (followed promptly b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower shall have occurred since December 31, 2005, which change has had or would be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower so stating. (c) The Lender Group shall have received evidence satisfactory to them that all conditions to the closing of the transactions contemplated by originalsthe Senior Credit Facility Documents have been satisfied and that the Senior Credit Facility is in full force and effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower so stating. (d) unless otherwise specifiedThe Lender Group shall have received the financial statements described in Section 5.1(k), each properly executed in form and substance to the members of the Lender Group. (e) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required, and that no Default exists after the making of the Term Loan, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower so stating. (f) The Borrower shall have established one or more Blocked Accounts pursuant to a lockbox arrangement with SunTrust Bank acceptable to the Administrative Agent. (g) The Administrative Agent shall have received confirmation that (i) the original Uniform Commercial Code financing statements signed (if required) by a Responsible Officerthe respective Borrower Parties as debtor and naming the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, each dated (ii) the Closing Date Copyright Security Agreements have been duly filed with the United States Copyright Office and (oriii) the Trademark Security Agreements have been duly filed with the United States Patent and Trademark Office, in each case, in such form as shall be satisfactory to the case Administrative Agent. (h) The Administrative Agent shall have received a Borrowing Base Certificate and a Senior Credit Facility Borrowing Base Certificate, in form and substance satisfactory to the Lender Group and rolled forward from the Borrowing Base Certificate and Senior Credit Facility Borrowing Base Certificate previously verified by the Administrative Agent, reflecting that, among other things, as of certificates the Agreement Date, after giving effect to (i) the Senior Credit Facility and any borrowings or other extensions of governmental officialscredit made thereunder and (ii) the making of the Term Loan under this Agreement, Senior Credit Facility Availability shall not be less than $25,000,000 (with trade payables being paid currently in the ordinary course of Borrower’s business, expenses and liabilities being paid in the ordinary course of business, without acceleration of sales and without deterioration in working capital and without giving effect to the additional capital attributable to the proceeds of the Term Loan). (i) The Administrative Agent shall have completed to its satisfaction a pre-funding field audit of the Borrower including, without limitation, a recent date before review of GEMS, and an examination of the Closing DateBorrower’s reporting capabilities, assets, liabilities (including review of accounts/trade payables evidencing payment of such amounts in accordance with their terms or otherwise on terms consistent with past practices acceptable to the Administrative Agent), books and records. (j) The Administrative Agent shall have received (A) final reports issued by FTI Consulting pursuant to that certain engagement letter between FTI Consulting and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, on behalf of SunTrust Bank, dated February 27, 2006, with respect to quality of earnings and field audit matters of the Borrower and (B) FTI’s report of the Borrower’s 2006 monthly Term Loan Availability and Senior Credit Facility Availability forecast, to include balance sheet, income statement, statement of cash flows and confirmation of minimum opening Senior Credit Facility Availability of $25,000,000 under the Senior Credit Facility (without giving effect to the additional capital attributable to the proceeds of the Term Loan). (k) The Administrative Agent shall have received a true and complete copy of the duly executed Consulting Agreement certified by an Authorized Signatory of the Borrower and in full force and effect. (l) The Administrative Agent shall have completed background checks with respect to certain key officers of the Borrower Parties and the results of such background checks shall be satisfactory to the Administrative Agent. (m) The Administrative Agent shall have received daily Senior Credit Facility Borrowing Base Certificates for a period prior to the Agreement Date as requested by the Administrative Agent, each in form and substance satisfactory to the Lender:Administrative Agent. (in) executed counterparts of this Agreement, sufficient in number for distribution The Administrative Agent shall have received evidence that the Borrower has entered into arrangements with its current floor plan suppliers under commercially reasonable open market terms that are satisfactory to the Lender Administrative Agent, including, without limitation, acceptable credit limits and payment terms. (o) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrower Parties and the Borrower;results thereof shall be acceptable to the Administrative Agent, in its sole discretion. (iip) a Term Note executed by All of the representations and warranties of the Borrower in favor of the Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with Parties under this Agreement and the other Loan Documents, which, pursuant to Section 5.3, are made at and as of the time of the making of the Term Loan other than those that are by their terms true only as of a date certain other than the date of the making of the Term Loan, shall be true and correct at such time, both before and after giving effect to the application of the proceeds of the Term Loan; (ivq) such documents and certifications as The incumbency of the Lender may reasonably require to evidence that Authorized Signatories of the Borrower is duly organized Parties shall be as stated in the certificate of incumbency contained in the certificate of such Borrower Party delivered pursuant to Section 4.1(a) or formed, as subsequently modified and that the Borrower is validly existing, reflected in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation a certificate of properties or the conduct of its business requires such qualification, except incumbency delivered to the extent Administrative Agent and the Lenders; (r) Since December 31, 2005, there shall have been no change that failure to do so could not has had or would be reasonably be expected to have a Material Adverse Effect; 57526638_5 (v) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx & Whitney, LLP as special counsel to the Borrower, each addressed to the Lender, in the form of Exhibit E; (vis) There shall not exist on the date of the making of the Term Loan and after giving effect thereto, a certificate of a Responsible Officer either Default; and (At) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower The Administrative Agent and the validity against Lenders shall have received all such other certificates, reports, statements, opinions of counsel, or other documents as the Borrower Administrative Agent or Lenders may reasonably request and all of the other conditions to the making of the Term Loan Documents to which it is a party, and such consents, licenses and approvals are set forth in this Agreement shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer certifying (A) have been fulfilled. The Borrower hereby agrees that the representations and warranties delivery of any Request for Term Loan hereunder or any telephonic request for the making of the Borrower contained in Article V of this Agreement, or any other Term Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsection (a) of Section 5.11 hereunder shall be deemed to refer to be the most recent statements furnished pursuant to clauses (a) and (b)certification of the Authorized Signatory thereof that all of the conditions set forth in this Section 4.1 have been satisfied. Notwithstanding the foregoing, respectively, of Section 6.01, (B) no Default shall existif the conditions, or would result from the proposed borrowing hereunder and (C) that there has been no event or circumstance since the date any of the Audited Financial Statements that has had or could them, set forth above are not satisfied, such conditions may be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and (ix) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Lender, the Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender)requisite Lenders under Section 11.12.

Conditions Precedent to Term Loan. The obligation of the Lender to make the Term Loan is subject to satisfaction of the following conditions precedent: (a) The Lender’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lender: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and the Borrower; (ii) a Term Note executed by the Borrower in favor of the Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (iv) such documents and certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; 57526638_546969638_8 (v) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx & Whitney, LLP as special counsel to the Borrower, each addressed to the Lender, in the form of Exhibit E; (vi) a certificate of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer certifying (A) that the representations and warranties of the Borrower contained in Article V of this Agreement, or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsection (a) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no Default shall exist, or would result from the proposed borrowing hereunder and hereunder, (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.; and (D) the current Debt Ratings; (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and (ix) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Lender, the Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender).

Conditions Precedent to Term Loan. The obligation obligations of the Lender Lenders to make the Term Loan is hereunder are subject to the satisfaction by Borrower of the following conditions precedentconditions: 4.1. On or prior to the Closing Date, Borrower shall have delivered to Agent the following (“Closing Deliverables”): (a) The Lender’s receipt executed copies of the followingLoan Documents, each a legal opinion of which shall be originals Borrower’s counsel, and all other documents and instruments reasonably requested by Agent to effectuate the transactions contemplated hereby or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated to create and perfect the Closing Date (orLiens of Agent with respect to all Collateral, in the case of certificates of governmental officials, a recent date before the Closing Date) and each all cases in form and substance satisfactory reasonably acceptable to the Lender: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and the BorrowerAgent; (iib) a copy of resolutions of Borrower’s board of directors evidencing approval of the Term Note executed Loan and other transactions evidenced by the Borrower in favor of the Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (ivc) such documents copies of the Certificate of Incorporation and certifications the Bylaws, or other organizational documents, as amended through the Lender may reasonably require to evidence that the Borrower is duly organized or formedClosing Date, and that the Borrower is validly existing, in of Borrower; (d) a certificate of good standing for Borrower from its state of incorporation and qualified to engage similar certificates from all other jurisdictions in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationwhich it does business, except to where the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect; 57526638_5; (ve) favorable opinions of Xxxxx X. Xxxxxxxto the extent invoiced to Borrower prior to the Closing Date, General Counsel payment of the Borrower, and Xxxxxx & Whitney, LLP as special counsel Closing Expense Charge (if not paid prior to the BorrowerClosing Date). If not invoiced prior to Closing Date, Closing Expense Charge and out-of-pocket costs associated with filings required to perfect Agent’s security interest or diligence searches with Governmental Authorities will be paid following the Closing Date, within ten (10) Business Days from receipt of invoice; (f) [reserved]; (g) each addressed document (including any UCC financing statement) required by this Agreement, any related agreement or under law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the LenderCollateral shall be in proper form to be filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested; (h) an executed copy of the Registration Rights Agreement; and (i) a Compliance Certificate substantially in the form of attached hereto as Exhibit E;C, executed by Borrower. (vi) a certificate of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower 4.2. As of the Loan Documents to which it is a partyClosing Date, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer certifying (A) that the representations and warranties of the Borrower contained set forth in Article V of this Agreement, or any other Loan Document, or which are contained Section 5 hereof and in any document furnished at any time under or in connection herewith or therewithdocuments delivered herewith, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct with the same effect as though made on and as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsection (a) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no Default shall exist, or would result from the proposed borrowing hereunder and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and (ix) such other assurances, certificates, documents, consents or opinions as the Lender reasonably may require. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Lender, the Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender).

Conditions Precedent to Term Loan. The obligation of the Lender to make the Term Loan is subject to satisfaction of the following conditions precedent: (a) The Lender’s receipt Receipt by Lender of the followingReplacement Reserve Agreement and Completion/Repair Security Agreement; (b) Receipt by Lender of the Certificate of IDOT Guarantor and IDOT Guaranty; (c) Receipt by Lender of opinions of counsel to Borrower, each counsel to Master Tenant and counsel to Operator in form and content satisfactory to Lender; (d) Receipt by Lender of which shall the documents and instruments required by Sections 6.11; (e) Delivery to the Title Company with fully executed instructions directing the Title Company to file and/or record in all applicable jurisdictions, all applicable Loan Documents required by Lender to be originals filed or telecopies (followed promptly by originals) unless otherwise specifiedrecorded, each properly including duly executed by a Responsible Officerand delivered original copies of the Variable Facility Note or Fixed Facility Note, each dated as applicable, the Closing Date (orGuaranty, in the case Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of certificates the Collateral comprised of governmental officialspersonal property, a recent date before the Closing Date) and each other appropriate instruments, in form and substance satisfactory to the Lender: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and in form proper for recordation, as may be necessary in the Borroweropinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing; (iif) a Term Note executed Receipt by the Borrower in favor Lender of the Lender; (iiiInitial Origination Fee pursuant to Section 10.01(a) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (iv) such documents and certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; 57526638_5 (v) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx & Whitney, LLP as special counsel to the Borrower, each addressed to the Lender, in the form of Exhibit E; (vi) a certificate of a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (vii) a certificate signed by a Responsible Officer certifying (A) that the representations and warranties of the Borrower contained in Article V of this Agreement, or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsection (a) of Section 5.11 shall be deemed to refer to the most recent statements furnished Initial Due Diligence Fee pursuant to clauses (a) and (bSection 10.02(a), respectively, of Section 6.01, (B) no Default shall exist, or would result from the proposed borrowing hereunder and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. (viii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and (ixg) such Such other assurances, certificates, documents, consents or instruments, approvals (and, if requested by Xxxxxx Xxx and Lender, certified duplicates of executed copies thereof) and opinions as the Xxxxxx Mae or Lender may reasonably may requirerequest. (b) Any fees required to be paid on or before the Closing Date shall have been paid. (c) Unless waived by the Lender, the Borrower shall have paid all Attorney Costs of the Lender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender).