Initial Advance Borrower shall have delivered to Lender each of the following, in form and substance satisfactory to Lender (the date on which each of the following shall have been so delivered is referred to herein as the “Effective Date”):
(a) executed originals of the Loan Documents and all other documents and instruments reasonably required by Lender to effectuate the transactions contemplated hereby or to create and perfect the Liens of Lender with respect to all Collateral, in all cases in form and substance reasonably acceptable to Lender;
(b) certified copy of resolutions of Borrower’s board of directors evidencing approval of (i) the Loan and other transactions evidenced by the Loan Documents; and (ii) the Warrant and transactions evidenced thereby;
(c) certified copies of the Certificate of Incorporation and the Bylaws, as amended through the Closing Date, of Borrower;
(d) a certificate of good standing for Borrower from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified would have a Material Adverse Effect;
(e) a certificate of incumbency as to each officer of Borrower who is authorized to execute the Loan Documents, the Warrant, and all other documents and instruments to be delivered pursuant to the Loan Documents and the Warrant on behalf of Borrower, including, without limitation, the chief financial officer of Borrower;
(f) payment of the Facility Charge and reimbursement of Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be deducted from the initial Advance;
(g) Landlord Consents or Bailee Agreements, as applicable, for the premises where the Financed Equipment will, upon completion of transit, be located; provided, that up to $3,750,000 of the initial Advance may be used for the purchase of International Based Financed Equipment without delivering to Lender, prior to the disbursement of such Advance, any Landlord Consents in respect of the premises in the continental United States where such International Based Financed Equipment may be located temporarily, so long as (i) prior to the disbursement of such Advance, one or more Bailee Agreements, as applicable, are delivered in respect of the foreign premises where such International Based Financed Equipment will be located upon completion of transit, and (ii) within 90 days of the Effective Date (or any subsequent Advance Date with respect to any International Based Financed Equipment not financed on the Effective Date), such International Based Financed Equipment is relocated to such foreign premises;
(h) a Consent Letter from each Incumbent Lender;
(i) a Release Letter from each Incumbent Lender with respect to the Financed Equipment purchased with the proceeds of the initial Advance; and
(j) such other documents as Lender may reasonably request.
Revolving Note The Revolving Loans made by each Lender shall, in addition to this Agreement, also be evidenced by a promissory note of the Borrower substantially in the form of Exhibit K (each a “Revolving Note”), payable to the order of such Lender in a principal amount equal to the amount of its Commitment as originally in effect and otherwise duly completed.
Subsequent Advances The obligation of Lender to fund the ------------------- subsequent Advances on the date of any Advance is subject to the fulfillment, on or prior to such date, of each of the following conditions:
(a) An Event of Default (as herein defined) shall not have occurred and be continuing;
(b) Borrower shall have delivered a Closing Certificate (in a form acceptable to Lender), executed by Borrower; and
(c) Borrower shall have delivered to Lender a Closing Statement (in a form acceptable to Lender), executed by Borrower.
4. The obligations of Borrower in connection with and/or relating to the Additional Loan are further evidenced and/or secured by the Loan Documents. In connection therewith:
(a) Each of the New Subsidiaries (as defined in the execution pages hereof) hereby agree to be a party to and subject to the Guaranty in accordance with its terms. Without limiting the foregoing, each of the New Subsidiaries guarantees to Lender the full and prompt payment and performance of (a) the indebtedness evidenced by the Notes, including, without limitation, principal and any and all interest accrued or to accrue thereon, (b) the obligations of Borrower to Lender pursuant to the Notes, the Loan Agreement and any and all other instruments, documents and/or agreements now or hereafter further evidencing, securing or otherwise related to the indebtedness evidenced by the Notes (collectively the "Loan Documents") and (c) any and all other indebtedness and other obligations of Borrower to Lender, direct or contingent (including but not limited to obligations incurred as indorser, guarantor or surety), however evidenced or denominated, and however and whenever incurred, including but not limited to indebtedness incurred pursuant to any present or future commitment of Lender to Borrower (the aforesaid indebtedness and other obligations are sometimes herein collectively referred to as the "Guaranteed Obligations").
(b) Each of the New Subsidiaries agree to be a party to and subject to the Guarantor Security Agreement in accordance with its terms. Without limiting the foregoing, each of the New Subsidiaries ("Grantor") hereby grants to Lender a security interest in the following described property and any and all proceeds and products thereto and accessions thereto:
Loan Amount 5. ACCOUNT NAME(S) ............................................................................................................................................................................. BANK NAME / BRANCH ..................................................................................................................................................................
Initial Loan Notwithstanding any provision contained in this Agreement to the contrary, Lender shall have no obligation to make the initial Loan or issue the initial Letter of Credit under this Agreement unless Lender shall have first received:
(a) this Agreement and the Note, each duly executed by Borrower;
(b) the Guaranty, duly executed by Laclede Energy;
(c) a copy of resolutions (including an incumbency certificate) of the Board of Directors of Borrower, duly adopted, which authorize the execution, delivery and performance of this Agreement, the Note and the other Transaction Documents, certified by the Secretary of Borrower;
(d) a copy of resolutions of the Board of Directors (including an incumbency certificate) of Laclede Energy, duly adopted, which authorize the execution, delivery and performance of its Guaranty, certified by the Secretary of Laclede Energy;
(e) copies of the Articles of Incorporation of Borrower and Laclede Energy, including any amendments thereto, certified by the Secretary of State of the states of their respective incorporations;
(f) copies of the Bylaws of Borrower and Laclede Energy, including any amendments thereto, certified by the Secretaries of Borrower and Laclede Energy;
(g) certificates of corporate good standing of Borrower and Laclede Energy issued by the Secretary of State of the states of their respective incorporations;
(h) an opinion of the General Counsel of Borrower and Laclede Energy, in form and substance satisfactory to Lender and Lender’s counsel;
(i) UCC search results from the Missouri Secretary of State for Borrower and Laclede Energy;
(j) copies of all financial statements and other exhibits and schedules required by this Agreement and the other Transaction Documents;
(k) a letter of direction from Borrower with respect to the disbursement of the proceeds of the initial Loan under this Agreement;
(l) a fee letter, duly executed by Borrower and Lender; and
(m) such other agreements, documents, instruments and certificates as Lender may reasonably request.
