|Conditions Precedent to Closing, Loan Documentation and Other Information:
The loan shall be evidenced by final definitive loan documentation consisting of, among other things, a loan agreement (the “DIP Term Loan Agreement”), mortgage(s), guaranty(ies), the Intercreditor Agreement and other documents, instruments and agreements as shall be required by the Term Agent and its counsel in their sole discretion (collectively, the “DIP Term Loan Documents”). The DIP Term Loan Documents will contain definitions, additional terms, conditions, covenants, representations and warranties, and events of default customary to the Term Agent’s agreements for similar debtor in possession credit facilities, but in all events consistent with the DIP ABL Facility documentation (provided, however, the DIP Term Loan Documents shall give regard to the different collateral securing the DIP Term Facility compared to the DIP ABL Facility), and all such loan documentation shall be in form and substance satisfactory to the Term Agent in its sole discretion and, to the extent required under the terms of the DIP ABL Facility, in the sole and absolute discretion of the ABL Agent. A condition to making the proposed loan will be receipt by the Term Agent and the Lenders of such information and documentation as shall be reasonably required by the Term Agent and the Lenders, including, without limitation, articles of incorporation, corporate resolutions, partnership agreements, operating agreements, surveys (to the extent currently in Debtors’ possession), UCC searches, property insurance, and, solely to the extent applicable, flood insurance. The form and substance of such information and documentation must be satisfactory to the Term Agent. In addition to the above, conditions precedent to closing and the initial draw of loans under the DIP Term Facility will include the following (the date of satisfaction of all such conditions precedent being referred to herein as the “Closing Date”):
(i) At least three (3) business days prior to the hearing on the proposed Interim Order, the Term Agent shall have received a title report or other evidence reasonably satisfactory to the Term Agent evidencing that title to the Real Estate Assets is vested in the Debtors subject only to liens and encumbrances satisfactory to the Term Agent in its sole discretion.
(ii) Term Agent’s receipt of the last three (3) years of annual financial statements and tax returns of the Debtors.
(iii) Term Agent’s receipt of current interim financial statements of the Debtors.
(iv) Term Agent’s receipt of desktop appraisals of the Debtors’ real estate.