This excerpt taken from the MTMC 8-K filed Jun 17, 2009.
3. CONDITIONS TO CLOSING
The obligations of Investment Manager and the L/C Guarantors hereunder, shall be subject to the performance by the Borrowers of their agreements to be performed hereunder and to the satisfaction, prior thereto or concurrently therewith, of the following further conditions:
(a) Representations and Warranties. The representations and warranties of the Borrowers contained in Section 4 hereof shall be true and correct in all material respects as of the Closing Date (as modified by the Disclosure Schedules delivered as of the Closing Date) as though such warranties and representations were made at and as of such date, except as otherwise affected by the transactions contemplated hereby.
(b) Compliance with Loan Documents, No Default or Event of Default. The Borrowers shall have performed and complied with all agreements, covenants and conditions contained in the Loan Documents which are required to be performed or complied with by it prior to or on the Closing Date. No Default or Event of Default shall exist prior to or after giving effect to the transactions contemplated on the Closing Date.
(c) Injunction. There shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by a court of competent jurisdiction directing that the transactions provided for herein or any of them not be consummated as herein provided.
(d) Counsels Opinion. Investment Manager shall have received from the Borrowers counsel, an opinion, dated the Closing Date, substantially in the form of Exhibit 3.1(d) hereto.
(e) Approval of Proceedings. All proceedings to be taken in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be satisfactory in form and substance to Investment Manager or the L/C Guarantors and their counsels; and Investment Manager shall have received copies of all documents or other evidence which they and their counsel may request in connection with such transactions and of all records of corporate proceedings in connection therewith in form and substance satisfactory to Investment Manager or the L/C Guarantors and their counsels.
(f) Other Fees and Expenses. The Borrowers shall have paid to Investment Manager all other amounts payable hereunder, including the payment of the fees and expenses of Cooley Godward Kronish LLP, counsel to Investment Manager, invoiced prior to the Closing Date.
(g) Secretarys Certificate. Investment Manager shall have received a certificate, dated the Closing Date, signed by the Secretary or Assistant Secretary, as the case may be, of each Borrower certifying that (i) its articles or certificate of incorporation, certificate of formation or certificate of organization annexed thereto are in full force and effect without any amendment, (ii) the by-laws or operating agreement annexed thereto are correct and complete as in effect on the date thereof; and (iii) the resolutions annexed thereto approving the transactions contemplated herein have been duly approved by the Board of Directors and/or Managers of such Borrower and remain in full force and effect.
(h) Security Interests. All action necessary or determined by Investment Manager to be desirable to create and perfect the security interests purported to be created by the Collateral
Documents shall have been taken or completed, including the execution and delivery of the Collateral Documents and the filing of the Uniform Commercial Code financing statements.
(i) Insurance. Investment Manager shall have received evidence that the insurance required to be maintained under this Agreement and the Collateral Documents is in full force and effect and that Investment Manager or the L/C Guarantors have been named as loss payee or additional insured, as appropriate, under the applicable insurance policies.
(j) Accounts Aging Report. The Borrowers shall have delivered to Investment Manager, a report listing all accounts receivable (aged by invoice date) and all accounts payable (aged by invoice date) for all accounts outstanding for more than 90 days from its invoice date, or the most recent comparable report delivered by the Borrowers to the Senior Lender.
(k) Other Documents. The Borrowers shall have executed and delivered to Investment Manager and the L/C Guarantors, the Loan Documents.