Common use of Conditions to Initial Advance Clause in Contracts

Conditions to Initial Advance. Without prejudice to the uncommitted nature of the credit facility provided for herein, no Advance will be made hereunder unless each of the following conditions precedent has been satisfied, or waived by the Lender in its sole discretion, on or before December 22, 2006: (a) The Lender shall have received this Agreement, executed and delivered by a duly authorized officer of each Borrower. (b) The Lender shall have received a certificate of each Borrower signed by two Responsible Officers of such Borrower, stating that (i) the representations and warranties by such Borrower in this Agreement are true and correct on and as of the Closing Date, both immediately prior to and after giving effect to any Advances being made on such date and to the application of the proceeds thereof, as though made on and as of such date, (ii) no Default or Event of Default has occurred and is continuing, or would result from the execution, delivery and performance by such Borrower, of this Agreement, and (iii) no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of such Borrower, threatened by or against such Borrower or against its properties or revenues (x) with respect to any of the Loan Documents or any of the transactions contemplated hereby or (y) which could reasonably be expected to have a Material Adverse Effect. (c) The Lender shall have received a certificate of Secretary or Assistant Secretary of each Borrower, dated the Closing Date, certifying (i) that attached thereto are true and complete copies of the resolutions of such Borrower’s Board authorizing the making and performance by such Borrower of this Agreement, (ii) that said resolutions are in full force and effect, (iii) that true and complete copies of the constitutive documents of such Borrower are attached to such certificate and (iv) as to the incumbency and signatures of each of its officers executing this Agreement and any other documents to which it is a party. (d) The Lender shall have received the fees and expense reimbursements provided for herein. (e) The Lender shall have received (i) the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to each of the Borrowers, in substantially the form of Exhibit B, (ii) the legal opinion of Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, special Delaware counsel to each of the Borrowers, in substantially the form of Exhibit C and (iii) the legal opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Lender, in substantially the form of Exhibit D, each dated the Closing Date. (f) The Lender shall have received true and correct copies, certified by each Borrower, of the most recent Prospectus of such Borrower and such other documents or instruments as may be lawfully disclosed and as may be reasonably requested by the Lender. (g) The Lender shall have received such other documents in connection herewith as the Lender may reasonably request.

Conditions to Initial Advance. Without prejudice Funding the Term Loan and Closing The obligations of Lenders to consummate the transactions contemplated herein and to make the initial Advance under the Revolving Facility (the "Initial Advance"), to fund the Term Loan and to fund the initial Draw under the Equipment Acquisition Term Loan (the "Initial Draw")are subject, in each case, to the uncommitted nature satisfaction, in the judgment of Agent, in its Permitted Discretion, of the credit facility provided for herein, no Advance will be made hereunder unless each of the following conditions precedent has been satisfied, or waived by the Lender in its sole discretion, on or before December 22, 2006following: (ai) The Lender Each Borrower shall have received this Agreement, executed and delivered by a duly authorized officer of each Borrower. to Agent (bA) The Lender shall have received a certificate of each Borrower signed by two Responsible Officers of such Borrower, stating that (i) the representations and warranties by such Borrower in this Agreement are true and correct on and as of the Closing Date, both immediately prior to and after giving effect to any Advances being made on such date and to the application of the proceeds thereof, as though made on and as of such date, (ii) no Default or Event of Default has occurred and is continuing, or would result from the execution, delivery and performance by such Borrower, of this Agreement, and (iii) no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of such Borrower, threatened by or against such Borrower or against its properties or revenues (x) with respect to any of the Loan Documents or any of the transactions contemplated hereby or (y) which could reasonably be expected to have a Material Adverse Effect. (c) The Lender shall have received a certificate of Secretary or Assistant Secretary of each Borrower, dated the Closing Date, certifying (i) that attached thereto are true and complete copies of the resolutions of such Borrower’s Board authorizing the making and performance by such Borrower of this Agreement, (ii) that said resolutions are in full force and effect, (iii) that true and complete copies of the constitutive documents of such Borrower are attached to such certificate and (iv) as to the incumbency and signatures of each of its officers executing this Agreement and any other documents to which it is a party., each duly executed by an authorized officer of such Borrower and the other parties thereto, (B) the Life Insurance Policy, and (C) a Borrowing Certificate for the Initial Advance and a Draw Notice for the Initial Draw under the Equipment Acquisition Term Loan, executed by an authorized officer of such Borrower and (ii) each Guarantor (if any) shall have delivered to Agent the Loan Documents to which such Guarantor is a party, each duly executed and delivered by such Guarantor or an authorized officer of such Guarantor, as applicable, and the other parties thereto; (db) The Lender all in form and substance satisfactory to Agent in its Permitted Discretion, Agent shall have received (i) a report of Uniform Commercial Code financing statement, tax and judgment lien searches performed with respect to Borrowers and any Guarantor in each jurisdiction determined by Agent in its Permitted Discretion, and such report shall show no Liens on the fees Collateral (other than Permitted Liens and Liens to be terminated at Closing), (ii) each document (including, without limitation, any Uniform Commercial Code financing statement) required by any Loan Document or under law or requested by Agent to be filed, registered or recorded to create, in favor of Agent, for the benefit of Lenders, a first priority (other than with respect to property or covered by Priority Permitted Liens) and perfected security interest upon the Collateral, (iii) evidence of each such filing, registration or recordation and of the payment by Borrowers of any necessary fee, tax or expense reimbursements provided for herein.relating thereto, and (iv) evidence of the amount due with respect to the Mississippi personal property tax owing by Borrowers and the payment thereof with proceeds of the Initial Advance; (ec) The Lender Agent shall have received (i) the Charter and Good Standing Documents, all in form and substance acceptable to Agent in its Permitted Discretion, (ii) a certificate of the corporate secretary or assistant secretary of each Borrower dated the Closing Date, as to the incumbency and signature of the Persons executing the Loan Documents on behalf of such Borrower, in form and substance acceptable to Agent in its Permitted Discretion, (iii) the written legal opinion opinions of ▇▇▇▇▇▇counsel and/or special counsel for Borrowers and each Guarantor, if any, in each case in form and substance satisfactory to Agent in its Permitted Discretion and its counsel and usual and customary for transactions of this type, and (iv) a certificate executed by an authorized officer of each Borrower, which shall constitute a representation and warranty by such Borrower as of the Closing Date, the Borrowing Date for the Initial Advance and the date of funding of the Term Loan that the conditions contained in this Agreement have been satisfied; (d) Agent shall have received a certificate of the chief financial officer (or, in the absence of a chief financial officer, the chief executive officer) of each Borrower, in form and substance satisfactory to Agent in its Permitted Discretion (each, a "Solvency Certificate"), certifying (i) the solvency of such Borrower after giving effect to the transactions and the Indebtedness contemplated by the Loan Documents, and (ii) as to such Borrower's financial resources and anticipated ability to meet its obligations and liabilities as they become due, to the effect that as of the Closing Date and the Borrowing Date for the Initial Advance, the date of funding of the Term Loan, and the date of funding of the Initial Draw under the Equipment Acquisition Term Facility and after giving effect to such transactions and Indebtedness: (A) the assets of such Borrower, at a Fair Valuation, exceed the total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Borrower, and (B) no unreasonably small capital base with which to engage in its anticipated business exists with respect to such Borrower; (e) Agent shall have completed examinations, the results of which shall be satisfactory in form and substance to Agent, of the Collateral, the financial statements and the books, records, business, obligations, financial condition and operational state of Borrowers and any Guarantor, and Borrowers shall have demonstrated to Agent's satisfaction in its Permitted Discretion that (i) their operations comply, in all respects deemed material by Agent, in its Permitted Discretion, with all applicable federal, state, foreign and local laws, statutes and regulations, (ii) their operations are not the subject of any governmental investigation, evaluation or any remedial action which could result in any expenditure or liability deemed material by Agent, in its Permitted Discretion, and (iii) they have no liabilities or obligations (whether contingent or otherwise) that are deemed material by Agent, in its Permitted Discretion; (f) Agent shall have received (or is satisfied that it will receive simultaneously with the funding of the Term Loan and/or Initial Advance and/or Initial Draw, as applicable) all fees, charges and expenses due and payable to Agent and Lenders on or prior to the Closing Date pursuant to the Loan Documents; (g) all in form and substance satisfactory to Agent in its Permitted Discretion, Agent shall have received such consents, approvals and agreements from such third parties as Agent and its counsel shall determine in their Permitted Discretion are necessary or desirable with respect to (i) the Loan Documents and/or the transactions contemplated thereby, (ii) claims against any Borrower or any Guarantor or the Collateral, (iii) a no-offset agreement from VitaRich Laboratories, Inc., and/or (iv) agreements, documents or instruments to which Borrower is a party or by which any of its properties or assets are bound or subject, including, without limitation, Landlord Waivers and Consents with respect to each property leased by any Borrower and Mortgagee Waivers and Consents with respect to each property owned by any Borrower that is subject to a mortgage; (h) Each Borrower shall be in compliance with Section 7.7 and Section 6.5, and Agent shall have received original certificates of all such required insurance policies and confirming that they are in effect and that the premiums due and owing with respect thereto have been paid in full and naming only the Agent, for the benefit of itself and Lenders, as sole beneficiary or loss payee and additional insured, as appropriate; (i) all corporate and other proceedings, documents, instruments and other legal matters in connection with the transactions contemplated by the Loan Documents (including, but not limited to, those relating to corporate and capital structures of Borrowers) shall be satisfactory to Agent in its Permitted Discretion; (j) no default shall exist pursuant to any obligations of any Borrower or any Guarantor, if any, under any material contract, and each Borrower and each Guarantor shall be in compliance with applicable laws and there shall exist no fact, condition or circumstance which, with the passage of time, the giving of notice or both, could reasonably be expected to constitute or become a default under any material contract to which any Borrower or any Guarantor is a party or any law to which any Borrower or any Guarantor is subject; (k) no Borrower, Guarantor or principal or key management personnel of any Borrower shall have been indicted or under active investigation by an U.S. Attorney for a felony crime; (l) Borrowers shall have established the Blocked Account(s) pursuant to Section 2.5; (m) Agent shall have received copies of all Permits required for or pursuant to which each Borrower and each Guarantor conducts the business in which it is currently engaged or is contemplated pursuant to the Loan Documents the absence of which to have could reasonably be expected to be, have or result in a Material Adverse Effect; (n) Agent shall have completed its due diligence examinations of Borrowers, including, without limitation, (i) an examination of the terms and conditions of all obligations owed by Borrowers and their Subsidiaries deemed material by Agent, the results of which shall be satisfactory in form and substance to Agent and (ii) customer reference checks and calls, credit checks, and background checks with respect to the relevant key management and principals of each Borrower and each Guarantor, if any; (o) Agent shall have received evidence (i) of repayment in full and termination of all liabilities and obligations of Borrowers to GECC and Dr. Pailla M. Reddy and all related documents, agreements an▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP▇n▇ ▇f all Liens and Uniform Commercial Code financing statements relating thereto, special New York counsel including, without limitation, any Liens and/or Uniform Commercial Code financing statements covering or relating to each any assets or properties of the Borrowers, in substantially the form any shareholder of Exhibit Bany Borrower, (ii) the legal opinion of Morrisrelease and termination of, Nicholsor Agent's authority to release and terminate, Arsht & ▇▇▇▇▇▇▇ LLPany and all Liens and/or Uniform Commercial Code financing statements in, special Delaware counsel on, against or with respect to each any of the BorrowersCollateral (other than Permitted Liens), in substantially the form of Exhibit C and (iii) that any and all existing lockbox arrangements are either terminated or made subject to and covered by a Lockbox Agreement as required pursuant to Section 2.5; (p) there shall not have occurred any Material Adverse Change or Material Adverse Effect from that which was reflected on the legal opinion financial statements provided to Agent or any liabilities or obligations of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel any nature with respect to any Borrower or any Guarantor which could reasonably be likely to have a Material Adverse Effect; (q) after giving effect to the LenderInitial Advance and repayment of all ANIP payables that are 30 days or more past due, Borrowers must have Excess Availability plus unencumbered cash in substantially deposit accounts subject to Account Control Agreements in favor of Agent of at least $1,000,000 and shall have provided to Agent evidence of the form of Exhibit D, each dated the Closing Date.foregoing; (fr) The Lender Borrowers shall have entered into the Employment Agreements and furnished copies thereof to Agent; (s) Agent shall have received true and correct copies, certified by from each Borrower, of the most recent Prospectus of such Borrower and Guarantor, if any, a completed IRS Form 8821; (t) Agent shall have received (i) copies of all other intercompany agreements, management agreements, documents relating to borrowed money, Capital Leases, occupancy leases and other material contracts, and (ii) such other documents or instruments materials as may be lawfully disclosed Agent shall deem necessary or appropriate, each in form and as may be reasonably requested by the Lender.substance satisfactory to Agent in its Permitted Discretion; (gu) The Lender Agent shall have received such other documents a complete and accurate list of all ANIP payables that are 30 days or more past due; and (v) Agent shall be satisfied, as determined in connection herewith as its sole and absolute discretion, with the Lender may reasonably requestresults of its financial and operational audit of the Borrowers.