Common use of Conditions Precedent to the Initial Advance Clause in Contracts

Conditions Precedent to the Initial Advance. The obligation of the Lender to make the initial Advance under the Credit Facility or to issue or to cause the Issuer to issue the initial Letter of Credit shall be subject to the condition precedent that the Lender shall have received all of the following, each in form and substance satisfactory to the Lender: (a) This Agreement, properly executed on behalf of the Borrower. (b) The Note, properly executed on behalf of the Borrower. (c) A true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to the Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances. (e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account. (f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, (ii) no financing statements have been filed and remain in effect against the Borrower, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing. (g) A certificate of the Secretary or an Assistant Secretary of the Borrower, certifying as to (i) the resolutions of the directors and, if required, the shareholders of the Borrower, authorizing the execution, delivery and performance of this Agreement and the Security Documents, (ii) the articles of incorporation and bylaws of the Borrower, and (iii) the signatures of the officers or agents of the Borrower authorized to execute and deliver this Agreement, the Security Documents and other instruments, agreements and certificates, including Advance requests, on behalf of the Borrower. (h) A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, certifying that the Borrower is in compliance with all corporate organizational requirements of such state. (i) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. (j) An opinion of counsel to the Borrower, addressed to the Lender. (k) Support Agreements duly executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.

Conditions Precedent to the Initial Advance. The obligation of the Lender Banks to make fund the initial Advance under the Credit Facility or to issue or to cause the Issuer to issue the initial Letter of Credit shall be Advances is subject to the condition precedent that the Lender Agent shall have received all of the following, each in form and substance satisfactory to the LenderAgent: (a) This AgreementThe Notes, properly executed on behalf of the BorrowerBorrowers. (b) The NoteSecurity Agreements, properly executed on behalf of the BorrowerBorrowers. (c) Financing statements sufficient when filed to perfect the security interests granted under the Security Agreements, to the extent such security interests are capable of being perfected by filing. (d) Delivery of certificates for all stock constituting collateral under the Security Agreements, together with stock powers in blank. (e) A true and correct copy of any the lease between Liberty Property Limited Partnership, a Pennsylvania limited partnership ("Liberty"), as landlord, and all leases pursuant to which the Borrower is leasing the PremisesPLI, together with a landlord's disclaimer and consent with respect to each such lease. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to the Lenderas tenant, pursuant to which PLI is leasing the Borrower facilities in which it operates in Bloomington, Minnesota, together with an agreement in which Liberty disclaims any interest in the Collateral and grants the Agent and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the LenderBanks certain rights, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances. (e) A Lockbox Agreement, duly properly executed by the Borrower Liberty provided, however, that this condition shall be deemed satisfied if PLI shall, promptly after closing, request such an agreement from Liberty and shall thereafter use reasonable efforts to obtain such an institution acceptable agreement (unless or until Liberty shall decline to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and execute such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"agreement), from which Lockbox such institution shall transfer funds to the Collateral Account. (f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against any Borrower or any Subsidiary (including, without limitation, against any of the Borrowerpast names of any Borrower or any Subsidiary), (ii) and that no financing statements or other notifications or filings have been filed and remain in effect against any Borrower or any Subsidiary, other than those for which the BorrowerAgent has received an appropriate release, except termination or satisfaction or those financing statements relating to liens permitted pursuant to in accordance with Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing6.1. (g) A certified copy of the resolutions of the board of directors of each Borrower evidencing approval of all Loan Documents to which such Borrower is a party and the other matters contemplated hereby. (h) Copies of the Articles of Incorporation and Bylaws of each Borrower, certified by the Secretary or Assistant Secretary of the Borrower as being true and correct copies thereof. (i) A certificate of good standing of each Borrower, dated not more than thirty (30) days prior to the date hereof, and evidence satisfactory to the Agent that each Borrower is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing would have a Material Adverse Effect. (j) A signed copy of a certificate of the Secretary or an Assistant Secretary of each Borrower which shall certify the names of the officers of each Borrower authorized to sign the Loan Documents and the other documents or certificates to be delivered pursuant to this Agreement, and to act as Authorized Representatives of the Borrowers, together with the true signatures of such officers. The Agent and each Bank may conclusively rely on such certificates until they shall receive a further certificate of the Secretary or an Assistant Secretary of the Borrower, certifying as to (i) Borrowers canceling or amending the resolutions of the directors and, if required, the shareholders of the Borrower, authorizing the execution, delivery prior certificate and performance of this Agreement and the Security Documents, (ii) the articles of incorporation and bylaws of the Borrower, and (iii) submitting the signatures of the officers or agents of the Borrower authorized to execute and deliver this Agreement, the Security Documents and other instruments, agreements and certificates, including Advance requests, on behalf of the Borrower. (h) A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, certifying that the Borrower is named in compliance with all corporate organizational requirements of such state. (i) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. (j) An opinion of counsel to the Borrower, addressed to the Lenderfurther certificate. (k) Support Agreements duly executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Certificates of the insurance required under the Security Agreements, naming the Agent, as collateral agent for all Banks, as loss payee thereunder, together with an acceptable lender's loss payable endorsement, provided, that if the Borrowers are not able to obtain such loss payable endorsements as of the closing of this Agreement, they may deliver them to the Agent within 90 days after such closing. (l) Audited financial statements acceptable to the Banks for the period ended October 31, 2000 and ▇▇▇▇▇▇ ▇unaudited financial statements for the period ended July 31, 2001. (m) A signed copy of an opinion of counsel for the Borrowers, addressed to the Banks. (n) Payment of all fees and expenses then due and payable pursuant to Sections 2.7 and 9.4 hereof. (o) Such other items as the Agent or the Required Banks shall reasonably require.

Conditions Precedent to the Initial Advance. The obligation of the Lender Lenders to make the initial Advance under the Credit Facility or to issue or to cause the Issuer to issue the initial Letter Revolving Line of Credit shall be subject to the condition precedent that the Lender Lenders shall have received all of the following, each in form and substance satisfactory to Lenders in their sole discretion, and/or that all of the Lenderfollowing shall be true, correct, complete, and acceptable to Lenders in their sole discretion on the date thereof: (a) This Agreement, properly executed on behalf of the Borrower. (b) The Note, properly executed on behalf of the Borrower. (c) A true and correct copy of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such lease. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to the Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances. (e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account. (f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, (ii) no financing statements have been filed and remain in effect against the Borrower, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed by the Lender, and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filing. (g) i. A certificate of the Secretary or an Assistant Secretary of the Borrower, certifying as to (i1) the resolutions of the directors and, if required, the shareholders shareholders, of the Borrower, Borrower authorizing the execution, delivery delivery, and performance of this Agreement and the Security other Loan Documents, (ii2) the articles of incorporation and bylaws of the Borrower, and (iii) the signatures of the officers or agents of the Borrower authorized to execute and deliver this Agreement, the Security other Loan Documents and other instruments, agreements agreements, and certificates, including Advance requests, on behalf of the Borrower. (h) ii. A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, incorporation certifying that the Borrower is in compliance with all corporate organizational requirements of such state. (i) iii. Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. iv. This Agreement, the Revolving Notes, and the other Loan Documents, fully and properly executed by Borrower and all other parties thereto; v. A subordination agreement from Fortress, in form and substance acceptable to Lenders in their sole discretion, whereby Fortress, among other things, subordinates all indebtedness and Restricted Equity Investment to the liens of Lenders. vi. the Maintenance Agreement with The Fortress Group. vii. A Borrowing Base Certificate dated as of November 6, 2000. viii. Current searches of appropriate filing offices showing that no state or federal tax liens have been filed and remain in effect against Borrower and Lenders have duly filed all Security Instruments necessary to perfect the liens and security interests in favor of Lenders. ix. Financing statements and UCC filings as requested and required by Lenders, in its sole discretion. x. ALTA Mortgagee's Title Insurance Policies (jor unconditional commitments for title insurance acceptable to Lenders and letters confirming the irrevocable and imminent issuance of such policies) from all applicable title insurance companies insuring the Property in the amount of not less than $50,000,000.00 and any related endorsements required by Lenders, properly executed by the applicable title insurance companies. xi. Lenders, at their sole option, may require a notice of title continuation or an endorsement to their mortgagee's title insurance policies indicating that since the last preceding Advance, there has been no change in the state of title adverse to Lenders. xii. Releases and terminations of all claims, encumbrances, liens, and security interests against the Collateral (other than the Permitted Encumbrances and those belonging to Lenders) properly executed by the lienholders and secured parties. xiii. Certificates of Insurance and endorsements to insurance policies required hereunder. xiv. Payment of any unpaid fees or other amounts owing to Lenders as of the Closing Date. xv. An opinion of counsel to the Borrower, Borrower and Fortress in form and substance acceptable to Lenders addressed to the LenderLenders, their participants, successors, and assigns, and their attorneys. xvi. All of the conditions to the closing of the Revolving Line of Credit contained in the Commitment and this Agreement have been and remain satisfied. xvii. Borrower shall have materially complied with all of its covenants and agreements contained in all of the Loan Documents, and Borrower's representations and warranties contained in any of the Loan Documents shall be true as of the date of disbursement as if first made on that date. xviii. Current Master Budgets and Plans and Specifications (kincluding updated list of options) Support Agreements duly for all Filings and all Finished Lots and Units in the Filings, all in form and substance acceptable to Lenders in their sole discretion. xix. Current surveys or approved Plats for each portion of the Property and all documentation regarding the platting of each portion of the Property, all in form and substance acceptable to Lenders in their sole discretion and, if a survey is provided, certified as accurate by a licensed surveyor in the state of Colorado, for the benefit of Lenders. xx. The Improvements are being and have been constructed substantially in accordance with the Master Budgets and the Plans and Specifications approved by Lenders. xxi. Any certifications and lien waivers required by Lenders. xxii. Fully executed by ▇▇▇▇▇▇▇ ▇assignments of all contracts between Borrower and Builder with reference to all major subcontractors, suppliers, architects, and engineers of Borrower. xxiii. ▇▇▇▇▇ Such other agreements, documents, and ▇▇▇▇▇▇ ▇instruments as Lenders in their reasonable discretion may require.

Conditions Precedent to the Initial Advance. The obligation of the Lender to make the initial Advance under the Credit Facility or to issue or to cause the Issuer to issue the initial Letter of Credit shall be is subject to the condition precedent that the Lender shall have received on or before the day of this Agreement all of the following, each dated the date of this Agreement, in form and substance reasonably satisfactory to the Lender: (a) This AgreementThe Revolving Note, properly executed on behalf of the Borrower. (b) The NoteSecurity Agreement, properly executed on behalf of the Borrower. (c) A true Financing statements and correct copy fixture financing statements sufficient when filed to perfect the Security Interest granted to the Lender under the Security Agreement to the extent such Security Interest is capable of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such leasebeing perfected by filing. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to the Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances. (e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account. (f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, or ACI Illinois and (ii) no financing statements or fixture financing statements have been filed and remain in effect against the Collateral except financing statements and fixture financing statements perfecting only security interests permitted under Section 6.01. (e) A certified copy of the resolutions of the Board of Directors of the Borrower evidencing approval of the Loan Documents and other matters contemplated hereby. (f) Copies of the Articles of Incorporation and Bylaws of the Borrower, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed certified by the Lender, Secretary or Assistant Secretary of the Borrower as being true and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filingcorrect copies thereof. (g) A certificate of good standing of the Borrower from the Secretary of State of Minnesota, North Dakota, South Dakota and Nebraska, dated not more than ten days before such date. (h) A signed copy of an opinion of counsel for the Borrower and ACI Illinois, addressed to the Lender and reasonably acceptable to the Lender's counsel. (i) A signed copy of certificate of the Secretary or an Assistant Secretary of the Borrower, certifying as to (i) Borrower which shall certify the resolutions names of the directors and, if required, the shareholders officers of the Borrower, authorizing Borrower authorized to sign the execution, delivery Loan Documents and performance of the other documents or certificates to be delivered pursuant to this Agreement by the Borrower and the Security Documents, (ii) the articles of incorporation and bylaws to request Advances under Section 2.01. The Lender may conclusively rely on such certificate until it shall receive a further certificate of the Borrower, Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and (iii) submitting the signatures of the officers or agents named in such further certificate. (j) A certificate of the Borrower authorized to execute and deliver this Agreement, insurance required under the Security Documents Agreement and other instrumentsACI Illinois Security Agreement in form and substance satisfactory to the Lender in its sole discretion, agreements and certificates, including Advance requests, naming the Lender as loss payee. (k) The ACI Illinois Guaranty properly executed on behalf of the BorrowerACI Illinois. (hl) The ACI Illinois Security Agreement properly executed on behalf of ACI Illinois. (m) Financing Statements and Fixture Financing Statements sufficient when filed to perfect a security interest granted to the Lender under the ACI Illinois Security Agreement to the extent such security interest is capable of being perfected by filing. (n) A current certificate issued certified copy of the Resolutions of the Board of Directors and the sole Shareholder of ACI Illinois evidencing approval of the ACI Illinois Guaranty and ACI Illinois Security Agreement and other matters contemplated hereby. (o) Copies of the Articles of Incorporation and By-Laws of ACI Illinois, certified by the Secretary or Assistant Secretary of ACI Illinois as being true and correct copies thereof. (p) A Certificate of Good Standing of ACI Illinois from the Secretary of State of the state of the Borrower's incorporation, certifying that the Borrower is in compliance with all corporate organizational requirements of Illinois and Indiana dated not more than ten (10) days before such statedate. (iq) Evidence that Such other documents and information as the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessaryLender may reasonably request. (j) An opinion of counsel to the Borrower, addressed to the Lender. (k) Support Agreements duly executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.

Conditions Precedent to the Initial Advance. The obligation of the Lender to make the initial Advance under the Credit Facility or to issue or to cause the Issuer to issue the initial Letter of Credit shall be is subject to the condition precedent that the Lender shall have received on or before the day of this Agreement all of the following, each in form and substance reasonably satisfactory to the Lender: (a) This AgreementThe Revolving Note, properly executed on behalf of the BorrowerBorrower and given in renewal and replacement of, and not in substitution or satisfaction of, that certain revolving note executed by the Borrower in favor of the Lender dated January 30, 1998. (b) The NoteSecurity Agreement, properly executed on behalf of the Borrower. (c) A true Financing statements and correct copy fixture financing statements sufficient when filed to perfect the Security Interest granted to the Lender under the Security Agreement to the extent such Security Interest is capable of any and all leases pursuant to which the Borrower is leasing the Premises, together with a landlord's disclaimer and consent with respect to each such leasebeing perfected by filing. (d) A Collateral Account Agreement, duly executed by the Borrower and a financial institution acceptable to the Lender, pursuant to which the Borrower and the institution establish a depository account (the "Collateral Account") in the name of and under the sole and exclusive control of the Lender, from which such institution agrees to transfer finally collected funds to the Lender for application to the Advances. (e) A Lockbox Agreement, duly executed by the Borrower and an institution acceptable to the Lender, pursuant to which the Borrower agrees to maintain and direct account debtors to make payment to, and such institution agrees to maintain and process payments received in, a lockbox for the benefit of the Lender (the "Lockbox"), from which Lockbox such institution shall transfer funds to the Collateral Account. (f) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower, Borrower and (ii) no financing statements or fixture financing statements have been filed and remain in effect against the Collateral except financing statements and fixture financing statements perfecting only security interests permitted under Section 6.01. (e) A certified copy of the resolutions of the Board of Directors of the Borrower evidencing approval of the Loan Documents and other matters contemplated hereby. (f) Copies of the Articles of Incorporation and Bylaws of the Borrower, except those financing statements relating to liens permitted pursuant to Section 7.1 hereof and those financing statements filed certified by the Lender, Secretary or Assistant Secretary of the Borrower as being true and (iii) the Lender has duly filed all financing statements necessary to perfect the Security Interests granted hereunder, to the extent the Security Interests are capable of being perfected by filingcorrect copies thereof. (g) A certificate of good standing of the Borrower from the Secretary of State of Minnesota, North Dakota, South Dakota and Nebraska, dated not more than ten days before such date. (h) A signed copy of an opinion of counsel for the Borrower addressed to the Lender and reasonably acceptable to the Lender's counsel. (i) A signed copy of certificate of the Secretary or an Assistant Secretary of the Borrower, certifying as to (i) Borrower which shall certify the resolutions names of the directors and, if required, officers of the shareholders Borrower authorized to sign the Loan Documents and the other documents to be delivered pursuant to this Agreement by the Borrower and the names of the officers or other employees authorized to request Advances under Section 2.01 and to sign certificates on behalf of the Borrower, authorizing the execution, delivery and performance of this Agreement and the Security Documents, (ii) the articles of incorporation and bylaws . The Lender may conclusively rely on such certificate until it shall receive a further certificate of the Borrower, Secretary or Assistant Secretary of the Borrower canceling or amending the prior certificate and (iii) submitting the signatures of the officers or agents of the Borrower authorized to execute and deliver this Agreement, the Security Documents and other instruments, agreements and certificates, including Advance requests, on behalf of the Borrower. (h) A current certificate issued by the Secretary of State of the state of the Borrower's incorporation, certifying that the Borrower is named in compliance with all corporate organizational requirements of such state. (i) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessaryfurther certificate. (j) An opinion A certificate of counsel the insurance required under the Security Agreement in form and substance satisfactory to the BorrowerLender in its sole discretion, addressed to naming the LenderLender as loss payee. (k) Support Agreements duly executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Intentionally deleted. (l) Intentionally deleted. (m) Intentionally deleted. (n) Intentionally deleted. (o) Intentionally deleted. (p) Intentionally deleted. (q) Such other documents and ▇▇▇▇▇▇ ▇information as the Lender may reasonably request.