Conditions Precedent to Advances. At the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender: (a) The duly executed counterparts of this Agreement; (b) The duly executed Term Note evidencing the Term Loan Commitment; (c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed; (d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents; (e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities; (f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party; (g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired; (h) Certified copies of the Intercompany Credit Documents, to the extent that they exist; (i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000; (j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans; (k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto; (l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies; (m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies; (n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender; (o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010; (p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and (q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder: (r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority; (s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and (t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status. (u) There shall then exist no Default or Event of Default; (v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement); (w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect; (x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect; (y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and (z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 2 contracts
Sources: Term Loan Agreement, Term Loan Agreement (Brown & Brown Inc)
Conditions Precedent to Advances. At After the time Initial Advance, no Advance of the making proceeds of the Term Loan hereunder on the Closing Date, all obligations of for any purpose shall occur until Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to has provided the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly Lender shall have received (i) a fully executed counterparts counterpart of this Agreement;each Construction Contract or copy thereof; and (ii) a report of any changes, replacements, substitutions, additions or other modification in the list of contractors, subcontractors and materialmen involved or expected to be involved in the construction of the Improvements.
(b) The duly Lender shall have received from Borrower a Draw Request for such Advance: (i) completed, executed Term Note evidencing and certified to by Borrower, with the Term Loan Commitment;Inspecting Person’s approval noted thereon, stating that said construction was performed in accordance with the Plans and Specifications; (ii) with the statement from Borrower that, in the opinion of Borrower, construction of the Improvements can be completed on or before the Completion Date for an additional cost not in excess of the amount then available under the Loan; (iii) setting forth the amount of retainage as required by Section 3.8) for each category for which retainage applies; and (iv) approved by the Inspecting Person. To the extent approved by Lender, and included in the Budget, such expenses may be paid from the proceeds of the Loan.
(c) Duly executed Certificate Borrower shall have furnished to Lender, from each contractor, subcontractor and materialman, including Contractor, an invoice, lien waiver and such other instruments and documents as Lender may from time to time specify, in form and content, and containing such certifications, approvals and other data and information, as Lender may require. The invoice, lien waiver and other documents shall cover and be based upon work actually completed or materials actually furnished. The lien waiver of Borrower each contractor, subcontractor and materialman shall be received by Lender not later than one month after the making of any Advance for the benefit of such contractor, subcontractor or materialman which pays the amount described in substantially the form which is reasonable acceptable to the Lender and appropriately completed;such lien waiver.
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods Borrower shall have expired;
(h) Certified copies of furnished to Lender such city inspection reports, if any, budget variance reports for the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, operating budget and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably requestmatters, all in form and substance reasonably satisfactory acceptable to Lender, with respect to the construction of the Improvements.
(e) If requested the opinion of the Inspection Person that all work typically done at the stage of construction when the Advance is requested shall have been done, and all materials, supplies, chattels and fixtures typically furnished or installed at such stage of construction shall have been furnished or installed.
(f) All personal property not yet incorporated into the Improvements but which is to be paid for out of such Advance, must then be located upon the Land, secured in a method acceptable to Lender, and Lender shall have received evidence thereof.
(g) Borrower shall have recorded the executed Affidavit of Commencement as required under Section 5.13 of this Agreement.
(h) Original or a copy of each fully executed Design Services Contract.
(i) A copy of the Plans and Specifications.
(j) Building permit(s), grading permit(s) and all other permits required with respect to the construction of the Improvements.
(k) Lender shall have received a completed Budget from Borrower in form and substance acceptable to Lender, if different from the budget attached hereto as Exhibit “B”.
Appears in 2 contracts
Sources: Construction Loan Agreement (Global Geophysical Services Inc), Construction Loan Agreement (Global Geophysical Services Inc)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund each Advance shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing Date, all obligations of Borrower hereunder incurred prior to any such applicable Advance (includingthe “Advance Conditions”):
(a) no event constituting a ▇▇▇▇▇▇▇▇▇▇ Land Event of Default under a ▇▇▇▇▇▇▇▇▇▇ Land Loan shall have occurred and be continuing;
(b) Lender (or the Title Company, without limitationacting at Lender’s direction) shall have received the original Deed of Trust covering the Projects being funded by the Loan, Borrower’s obligations to reimburse duly executed by Borrower for the reasonable fees and expenses benefit of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the followingoriginal Note for the Loan, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitmentby Borrower;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable Lender shall have received all Required Documents relating to the Loan and all Closing Deliveries required to be delivered to Lender and appropriately completedas further described in Section 6.1;
(d) Duly Lender shall have received an Advance Request properly completed and duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Partiesby a Principal Officer, authorizing as applicable the execution, delivery and performance of the Credit Documentsaccompanied by all required attachments;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title representations and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, warranties made in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents this Agreement and the other documents to be executed Loan Documents by Borrower and delivered hereunder, the Borrower-Related Parties and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, certificates and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b)delivered pursuant thereto, other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of funding;
(f) all of the covenants and agreements contained in this Agreement and the other Loan Documents to be complied with and performed as of the date hereof by Borrower and the Borrower-Related Parties have been duly complied with and performed on and as of the date of funding;
(g) no event constituting an Event of Default, shall have occurred and be continuing, as determined by Lender pursuant to Section 11.1;
(h) a Principal Officer shall have executed and delivered to Lender an Officer’s Certificate dated the date of the Advance, and all matters certified in the Officer’s Certificate shall be true and correct in all respects;
(i) on and as of the date of funding, all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 6.1 and Section 7.1) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such Loans statements, certificates or date untrue in any material respect;
(except j) the amount of the requested Advance, when added to the extent outstanding principal amount of all Loans then outstanding, would not exceed the Maximum Commitment;
(k) as of the date of any such Advance, all of the Loan Documents shall have been executed and delivered, and shall be valid, enforceable and in full force and effect;
(l) as of the date of any such Advance, all Loan Expenses and other fees, charges and expenses owed under any of the Loan Documents as of the date of the requested Advance shall have been paid in full (or Lender shall have agreed to fund such Loan Expenses, fees, charges and expenses out of the proceeds of such Advance);
(m) as of the date of any such Advance, Lender’s security interests in all Collateral shall be duly perfected and in the Lien position stated therein;
(n) the title agent shall have delivered to Lender the Title Company’s Title Binder to the Lender pursuant to a Title Commitment, in form and content satisfactory to Lender, wherein the Title Company agrees to provide a Title Policy covering the Lots being funded by such Advance to Lender, obtained at Borrower’ expense;
(o) Borrower and the Borrower-Related Parties shall have complied with each other reasonable request of Lender made in connection with the then-requested Advance that Lender determines is reasonably related to such representations Advance;
(p) the Project has not been destroyed or materially damaged by fire or other casualty;
(q) the Project is not the subject of a condemnation proceeding or litigation;
(r) the building pad site for the Home is not located in flood zone A or V unless Lender gives its advance written consent thereto, which may be withheld for any reason in Lender’s sole and warranties expressly relate absolute discretion;
(s) if requested by Lender, Borrower will also do the following: (i) deliver copies of recorded Affidavits of Commencement to an earlier Lender and the Title Company; (ii) deliver updated Title Binder to Lender showing title to the Lot or Home to be vested in Borrower and no stated facts objectionable to Lender, including without limitation, mechanic’s liens filings for unpaid bills for labor or materials; (iii) furnish Lender and Title Company with a list of the names and addresses of all contractors, subcontractors, laborers, and suppliers who have furnished labor or materials for any Home; (iv) furnish Lender and Title Company with copies of the contracts, bills of sale, receipted vouchers, and agreements under which Borrower claims title to the materials, articles, fixtures, and other personal property used or to be used in the construction or operation of any Home; and/or (v) furnish Lender and Title Company with lien waivers or lien subordination agreements from all contractors, subcontractors, laborers, or suppliers, who have furnished labor, services or material for any Home certifying that they have been fully paid for all labor, services and material furnished by them through the date or of the immediately prior Advance Request;
(t) Lender and Title Company have received a report from Lender’s Inspector indicating (i) whether the Approved Budget is sufficient to complete the Project in substantial accordance with the Plans and Specifications and if not, specifying the amount in excess of the Approved Budget which is necessary to complete the Project in substantial accordance with the Plans and Specifications, which amount Borrower shall, at Lender’s request, place in escrow with Title Company to be released to Borrower upon Lender’s unilateral request therefor; provided, that upon Borrower’s request to Lender for release of such funds, if no Event of Default has occurred and is continuing, Lender will request the Title Company to release the funds to Borrower upon completion of the Project; and further provided, that Borrower agrees that the released funds will be used solely for the purpose of paying Project costs unless all Project costs have been paid in full, (ii) the progress of the work on such Home, (iii) the conformity of the work with the Plans and Specifications, (iv) the sufficiency of the Loan proceeds to fund the work remaining to be completed on such Home, (v) whether the work can be completed in a timely manner, (vi) the Plans and Specifications are affected in compliance in all material respects with all applicable legal Requirements for the full completion of the Project, and (vii) any other matters that Lender reasonably requests to be reviewed by transactions permitted under this Agreement)Lender’s Inspector;
(u) Lender shall have received sales and marketing reports reasonably requested by Lender;
(v) Lender and Title Company shall have received a Foundation Survey upon completion of the foundation of each Home to be reviewed and approved prior to subsequent Advances for work performed after completion of the foundation, and a Completion Survey upon the completion of the Home to be reviewed and approved prior to the final Advance in connection with such Home;
(w) Since the date use of the most recent financial statements proceeds of the Borrower described such Advance will comply in all respects with Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect7.4;
(x) There if the Advance is a first Loan Advance after the related Loan Closing and a Projected Cash Shortfall exists, Borrower shall be no action pay the Projected Cash Shortfall at the time of the Loan Advance or proceeding instituted or pending before any court or other governmental authority or, provide Lender evidence that the Projected Cash Shortfall has been paid prior to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;Loan Advance; and
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender Borrower shall have received such other documents or legal opinions as obtained all necessary permits to construct the Lender may reasonably requestHome on the Lot (including, without limitation, the building permit, if any) and shall have paid all taxes and fees to applicable Governmental Authorities (including, without limitation, all in form permitting and substance reasonably satisfactory impact fees, if any) and to any homeowner association that are due prior to the Lenderdate of the Advance.
Appears in 2 contracts
Sources: Construction Loan Agreement (United Development Funding IV), Construction Loan Agreement (United Development Funding IV)
Conditions Precedent to Advances. At the time 4.1 The obligations of the making of Lender to make the Term Loan hereunder Advance under this Agreement on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel Date is subject to the Lender satisfaction or waiver in writing of the following documents and any fees and expenses payable to the Lender as previously agreed with Borrower)other evidence, shall have been paid in full, and the Lender shall have received the following, each in form and substance reasonably satisfactory in all respects to the LenderLender on or before the Closing Date:
(a) The duly executed counterparts of this Agreement;the Loan Documents, signed by all parties to them.
(b) The duly executed Term Note evidencing each document (including Uniform Commercial Code financing statements) required by the Term Loan Commitment;Security Documents to be filed, registered, or recorded in order to create in favor of Lender on the Collateral described therein for which perfection is required by the terms thereof.
(c) Duly executed Certificate evidence that all fees and expense of Borrower in substantially the form which is reasonable acceptable to the Lender under this Agreement and appropriately completed;of the Existing Lenders under the Existing Loan Documents have been (or simultaneously with the first Advance, will be) paid in full.
(d) Duly executed Certificates No Default or Event of the Secretary or Assistant Secretary of each of the Credit Parties attaching Default shall have occurred and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;be continuing.
(e) Duly executed Certificates Each of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties made by Borrower contained herein any Obligor in or pursuant to the Loan Documents shall be true and correct in all material respects with (except to the same effect extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as though of such earlier date), except that any representations and warranties had been made on subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects as of the date of such Loans extension of credit (except to the extent that any such representations representation and warranties warranty expressly relate relates to an earlier date or are affected by transactions permitted under this Agreementdate, in which case such representation and warranty shall have been true and correct as of such earlier date);.
(wf) Since the date Results of recent lien searches in each of the most jurisdictions where any of the Loan Parties is formed or organized, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Permitted Liens.
(g) A certificate of each Obligor, executed by an authorized officer of such Obligor, with appropriate insertions and attachments, including (i) the constituent documents of such Obligor, (ii) the relevant board resolutions or written consents of such Obligor adopted by such Obligor for the purposes of authorizing such Obligor to enter into and perform the Loan Documents to which such Obligor is party, (iii) the names, titles, incumbency and signature specimens of those representatives of such Obligor who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Obligor, and (iv) a good standing certificate) for each Obligor certified as of a recent financial statements date by the appropriate Governmental Authority of its respective jurisdiction of organization.
(h) All necessary consents and approvals to authorize the Loan Documents shall have been obtained by the applicable Loan Parties.
(i) An Advance Request, signed by the Borrower.
(j) A certificate signed by a authorized officer of the Borrower described certifying that the conditions specified in clauses (d), (e) and (h) of this Section 6.3 hereof, there shall 4.1 have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;satisfied.
(xk) There shall be no action or proceeding instituted or pending before any court or other governmental authority orA legal opinion of ▇▇▇▇▇▇▇ & West LLP, legal advisers to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;Obligors.
(yl) The Loans to be made and A Cashflow Report for the use of proceeds thereof shall not contravene, violate or conflict with, or involve 13 week period within three Business Days from the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the LenderClosing Date.
Appears in 2 contracts
Sources: Loan and Security Agreement (Amyris, Inc.), Loan and Security Agreement (Amyris, Inc.)
Conditions Precedent to Advances. At (a) Prior to the time first advance of any portion of the making proceeds of the Term Loan hereunder on Loan, the Closing DateBorrower shall satisfy each of the following requirements:
(i) The Lender shall have received its required Facility Fee (as hereinafter defined) and the Borrower shall have paid all other fees, all obligations of Borrower hereunder incurred prior to any such Advance costs and expenses (including, without limitation, Borrower’s obligations to reimburse including the reasonable fees and expenses costs of counsel the Lender's counsel) then required to be paid pursuant to this Agreement and all other Loan Documents.
(ii) The Lender shall have received and approved financial statements relating to the Borrower and the Guarantors, in form and detail satisfactory to the Lender and any fees certified as to accuracy, in all material respects, by or on behalf of the Borrower and expenses payable the Guarantors.
(iii) The Lender shall have received and approved such evidence as the Lender may reasonably require of the existence, good standing, authority and capacity of the Borrower and the Guarantors to execute, deliver and perform their respective obligations to the Lender under the Loan Documents, including, an instrument certifying the officers or other representatives of the Borrower and the Guarantors who are authorized to execute the Loan Documents; and true and complete copies of resolutions and/or consents of the Borrower and the Guarantors approving the Loan Documents and authorizing the transactions contemplated in this Agreement and the other Loan Documents.
(iv) The Borrower and the Guarantors shall have duly executed, acknowledged and/or sworn to as previously agreed required, and delivered to the Lender all Loan Documents then required by the Lender, dated the date of this Agreement, each in form and content reasonably satisfactory to the Lender.
(v) The Lender shall have received the written opinion of counsel satisfactory to the Lender for the Borrower and the Guarantors addressed to the Lender, dated the date of this Agreement.
(vi) The Lender shall have received a paid policy of title insurance in standard ALTA form or a valid and enforceable commitment to issue the same from a company satisfactory to the Lender in the amount of the Loan and which may be endorsed or assigned to the successors and assigns of the Lender without additional cost, insuring the lien of the Deed of Trust to be a valid second lien on the Property, free and clear of all defects, exceptions and encumbrances except such as the Lender and its counsel shall have approved.
(vii) The Lender shall have received advice, in form and substance and from a source satisfactory to the Lender, to the effect that a search of the applicable public records discloses no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title retention agreements filed or recorded against the Property except such as the Lender shall have approved.
(viii) The Lender shall have received all policies of insurance required by the terms of the Deed of Trust and by the other Loan Documents to be in effect from a company or companies and in form and amount satisfactory to the Lender, including without limitation, flood insurance (in the amount of the Loan or the maximum limit of coverage available on the Property, whichever is less or evidence that flood insurance is not available or otherwise required with Borrowerrespect to the Property), shall together with written evidence, in form and substance satisfactory to the Lender, that all fees and premiums due on account thereof have been paid in full, and the .
(ix) The Lender shall have received and approved an appraisal of the followingProperty.
(x) The Lender shall have received and approved one or more executed purchase contracts with NVR, Inc. ("NVR") covering all of the remaining Lots and Parcels within the Property, including without limitation, all of the Lots within the section of the Property known as the CCRC Multifamily Parcel, which must be in form and substance satisfactory to the Lender in all respects (collectively, the "NVR Purchase Contracts"), together with satisfactory evidence that such NVR Purchase Contracts remain in full force and effect, and a subordination agreement executed by NVR, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;in all respects, pursuant to which any lien held by NVR as security for its deposit under the NVR Purchase Contracts shall be subordinated to the lien of the Lender under the Deed of Trust.
(dxi) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods The Borrower shall have expired;
(h) Certified copies of the Intercompany Credit Documents, delivered to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports form and other information as the Lender may content reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable satisfactory to the Lender, such other documents, instruments, certificates and agreements as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;.
(nb) The duly executed favorable opinion of in-house legal counsel As conditions precedent to each advance made pursuant to a Draw Request and in addition to all other requirements contained in this Agreement and the Credit Partiesother Loan Documents, substantially in the form reasonably acceptable to Lender addressed to Borrower must satisfy the Lender;following additional conditions:
(oi) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
All conditions set forth in subsection (pa) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions above shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such statussatisfied.
(uii) There No default or any event which, with the giving of notice or the lapse of time, or both, could become a default shall then exist no Default hereunder or Event under any of Default;the other Loan Documents.
(viii) All The representations and warranties by Borrower contained herein shall made in the Loan Documents must then be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of each such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);advance.
(wiv) Since The Lender shall have received and approved such information regarding the purpose for which funds are being requested in connection with one of the Borrower's real estate projects as the Lender may reasonably request.
(v) As of the date of the most recent financial statements making of each such advance, no default or event of default (as described or defined therein) shall have occurred under the Development Loan or under any other indebtedness or liability for borrowed money of the Borrower described in Section 6.3 hereofor of either of the Guarantors, there which default or event of default shall remain uncured beyond any applicable grace and/or cure period provided therefor.
(vi) As of the date of the making of each such advance, to the knowledge of the Borrower, no event shall have been no change which has had or occurred, nor shall any condition exist, that could reasonably be expected to have a Materially Adverse Effect;an adverse effect on the enforceability of the Loan Documents, be materially adverse to the financial condition of the Borrower or of either of the Guarantors, be materially adverse to the ability of the Borrower or of either of the Guarantors to fulfill its obligations under the Loan Documents, or otherwise have any material adverse effect whatsoever on the Project.
(xvii) There The Borrower shall be no action or proceeding instituted or pending before any court or other governmental authority or, have delivered to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions information, documents, certificates and agreements as the Lender reasonably may reasonably request, all in form and substance reasonably satisfactory to be required by the Lender.
Appears in 2 contracts
Sources: Loan Agreement (LiquidValue Development Inc.), Loan Agreement (HF Enterprises Inc.)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate an authorized officer of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion; Loan Agreement ▇▇▇▇▇▇▇▇ Creek, ▇▇▇▇▇▇ County, Texas 13
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, to the knowledge of with all endorsements thereto required by Lender, at Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectexpense;
(yg) The Loans to be made the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zg) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement
Conditions Precedent to Advances. At the time 4.1 The obligations of the making of Lender to make the Term Loan hereunder Advance under this Agreement on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel Date is subject to the Lender satisfaction or waiver in writing of the following documents and any fees and expenses payable to the Lender as previously agreed with Borrower)other evidence, shall have been paid in full, and the Lender shall have received the following, each in form and substance reasonably satisfactory in all respects to the LenderLender on or before the Closing Date:
(a) The duly executed counterparts of this Agreement;the Loan Documents, signed by all parties to them.
(b) The duly executed Term Note evidencing each document (including Uniform Commercial Code financing statements) required by the Term Loan Commitment;Security Documents to be filed, registered, or recorded in order to create in favor of Lender on the Collateral described therein for which perfection is required by the terms thereof.
(c) Duly executed Certificate evidence that all fees and expense of Borrower in substantially the form which is reasonable acceptable to the Lender under this Agreement and appropriately completed;of the Existing Lenders under the Existing Loan Documents have been (or simultaneously with the first Advance, will be) paid in full.
(d) Duly executed Certificates No Default or Event of the Secretary or Assistant Secretary of each of the Credit Parties attaching Default shall have occurred and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;be continuing.
(e) Duly executed Certificates Each of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties made by Borrower contained herein any Obligor in or pursuant to the Loan Documents shall be true and correct in all material respects with (except to the same effect extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as though of such earlier date), except that any representations and warranties had been made on subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects as of the date of such Loans extension of credit (except to the extent that any such representations representation and warranties warranty expressly relate relates to an earlier date or are affected by transactions permitted under this Agreementdate, in which case such representation and warranty shall have been true and correct as of such earlier date);.
(wf) Since the date Results of recent lien searches in each of the most jurisdictions where any of the Loan Parties is formed or organized, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Permitted Liens.
(g) A certificate of each Obligor, executed by an authorized officer of such Obligor, with appropriate insertions and attachments, including (i) the constituent documents of such Obligor, (ii) the relevant board resolutions or written consents of such Obligor adopted by such Obligor for the purposes of authorizing such Obligor to enter into and perform the Loan Documents to which such Obligor is party, (iii) the names, titles, incumbency and signature specimens of those representatives of such Obligor who have been authorized by such resolutions and/or written consents to execute Loan Documents on behalf of such Obligor, and (iv) a good standing certificate) for each Obligor certified as of a recent financial statements date by the appropriate Governmental Authority of its respective jurisdiction of organization.
(h) All necessary consents and approvals to authorize the Loan Documents shall have been obtained by the applicable Loan Parties.
(i) An Advance Request, signed by the Borrower.
(j) A certificate signed by a authorized officer of the Borrower described certifying that the conditions specified in clauses (d), (e) and (h) of this Section 6.3 hereof, there shall 4.1 have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;satisfied.
(xk) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, Evidence that DSM has consented to the knowledge transactions contemplated by this Agreement.
(l) A legal opinion of Borrower▇▇▇▇▇▇▇ & West LLP, threatened legal advisers to the Obligors.
(m) A Cashflow Report for the 13 week period within three Business Days from the Closing Date.
(n) Evidence that (i) which reasonably could be expected to all Specified Defaults (as defined in those certain Forbearance Agreements dated on or about May 9, 2023 between, among others, DSM and the Obligors, the Existing Lender and the Obligors and Perrara Ventures LLC and the Obligors (together the “Forbearance Agreements”) have a Materially Adverse Effectbeen waived, or and (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would breaches and defaults (however described) under the Forbearance Agreements have a Materially Adverse Effect;been waived.
(yo) The Loans DSM Side Letter, signed by all parties to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; andit.
(zp) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory An amendment agreement to the LenderDSM Loan Agreement, signed by all parties to it.
Appears in 1 contract
Conditions Precedent to Advances. At the time Each Secured Party agrees and commits to advance its proportionate share of the making Loan to Debtor as set forth herein and in the Promissory Notes when and for so long as Debtor is in compliance with each of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior following conditions precedent to any such Advance advances (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:"CONDITIONS TO ADVANCES"):
(a) The duly executed counterparts Debtor continues to conform to and meet the goals and objectives of this Agreementthe approved business plan, a copy of which is attached hereto as Exhibit A (hereinafter the "Business Plan");
(b) The duly executed Term Note evidencing the Term Loan CommitmentNo Key Employee of Debtor is in breach under his respective employment agreement with Debtor;
(c) Duly executed Certificate Unless otherwise agreed to in writing by Secured Party, all Key Employees of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completedDebtor are still employed by Debtor;
(d) Duly executed Certificates There then exists no material adverse change in the business or financial condition of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsDebtor;
(e) Duly executed Certificates There then exists no breach of or default by Debtor under this Agreement, the Secretary Voting Agreement, the Shareholders Agreement, the Stock Purchase Agreement or an Assistant Secretary of each of any other agreements by and between the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesparties relating to this transaction;
(f) Certified copies Debtor has, with each request for an advance, advised Acxiom, as agent for the Secured Parties, of the certificate or articles of incorporation of each Credit Party certified by purpose(s) for which the Secretary of State or the Secretary or Assistant Secretary Loan proceeds are to be used, Acxiom has, in its sole discretion, approved of such Credit Partyuse of Loan proceeds, together with certificates of good standing or existence, as may be available from and the Secretary of State prior proceeds of the jurisdiction of incorporation or organization of such Credit PartyLoan have to date been used for no other purpose than those previously approved by Acxiom;
(g) Copies Debtor has good title to the Collateral free and clear of all documents liens and instrumentsother security interests, and has possession of the Equipment and other tangible Collateral and holds all Accounts, including all consentsbooks and records pertaining thereto, authorizations Inventory and filingsother Collateral, required or advisable under any Requirement evidence of Law Intellectual Property and other intangible Collateral at the addresses set forth on Exhibit C or by any material Contractual Obligation of the Credit Parties, at such other addresses that Debtor has notified Secured Party in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredwriting;
(h) Certified copies Debtor's representations and warranties in this Agreement are true and correct on the date of the Intercompany Credit Documents, to the extent that they exist;each request for an advance; and
(i) Certified copies of indentures, credit Debtor has executed and delivered such agreements, leases, capital leases, instruments, documents and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information instruments as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Secured Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Notwithstanding any other provision of this Agreement or the time Other Agreements and without affecting in any manner the rights of the making of the Term Loan hereunder on the Closing DateLender under this Agreement, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees it is understood and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the that Lender shall have received no obligation to make any advance under this Agreement unless and until the followingfollowing conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory in all respects to the LenderLender and its counsel:
(a) The Lender shall have received, on or prior to the Closing Date, the following documents:
(i) the Revolving Credit Note, duly executed counterparts of this Agreementand delivered;
(bii) The the Term Note, duly executed Term Note evidencing the Term Loan Commitmentand delivered;
(ciii) Duly executed Certificate certified copies of the Articles of Incorporation, Bylaws and evidence of good standing of Borrower in substantially the form each state in which it is reasonable acceptable required to the Lender and appropriately completedbe qualified to do business;
(div) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying certified copies of the resolutions of the boards Board of directors Directors of Borrower (a) authorizing the Revolving Credit Facility and Term Loan and (b) authorizing execution and delivery of this Agreement and the Other Agreements by officers of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsBorrower;
(ev) Duly executed Certificates certificates of the Secretary or an Assistant Secretary of each secretary of the Credit Parties Borrower certifying (i) to the nameLender the names of its officers, title the offices that each holds and true signature the authenticity of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiestheir signatures;
(fvi) Certified copies opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the certificate or articles of incorporation of each Credit Party certified by Borrower, dated the Secretary of State or Closing Date, with respect to the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partytransactions contemplated in form and substance satisfactory to Lender;
(gvii) Copies copies of all documents filing receipts and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or acknowledgments issued by any material Contractual Obligation governmental authority to evidence any recordation or filing necessary to perfect the Lien of Lender on the Credit PartiesCollateral and evidence in a form acceptable to Lender that such Lien constitutes a valid and perfected Prior Security Interest;
(viii) the Other Agreements, duly executed and delivered; and
(ix) a Borrowing Base Certificate in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents form satisfactory to be Lender.
(b) Borrower shall have executed and delivered hereundersuch documents and instruments as have been requested by Lender in order to create, continue or perfect a Prior Security Interest and First Lien in favor of Lender on the Collateral (except liens described on Schedule I hereto) for the purpose of securing payment of the Indebtedness, and such consentsany and all recording and other taxes in connection therewith shall have been paid by Borrower;
(c) the representations and warranties contained herein shall be true on and as of the Closing Date, authorizationsand there shall exist on the Closing Date no Event of Default and no event which, filings and orders with notice, lapse of time or the happening of any further condition, event or act, or any combination of the foregoing, would constitute an Event of Default;
(d) insurance complying with Section 9.5 hereof shall be in full force and effect and all applicable waiting periods and, on or before the Closing Date, Borrower shall have expireddelivered to Lender one or more certificates of insurance broker(s) satisfactory to Lender, setting forth the insurance obtained in accordance with such Section and stating that such insurance is in full force and effect, all premiums then due thereon have been paid and the insurance policies relating thereto comply with Section 9.5 hereof;
(he) Certified copies the advances on the terms and conditions herein provided (including the use by Borrower of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees proceeds of the Consolidated Companiesadvances) shall not violate any applicable law or governmental regulation (including, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability Regulations G, T, U and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, X of the types and amounts Board of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements Governors of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 Federal Reserve System) and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the subject Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or to tax (other governmental authority;
(sthan income and franchise taxes) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such certificates or other evidence as Lender may request to establish compliance with this condition; and
(f) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be in substance and form satisfactory to Lender and its counsel, and Lender and its counsel shall have received all such counterpart originals or legal opinions certified or other copies of such documents as the Lender or its counsel may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term funding date for the Advance or the date of the Interest Reserve Accrual, as applicable (the “Advance Conditions”): Loan hereunder on the Closing DateAgreement – Rosehill Reserve ▇▇▇▇▇▇ County, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Texas 16
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment and would not cause the a violation of Section 10(aa) with respect to the LTV Ratio;
(i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation the amount of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zh) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement
Conditions Precedent to Advances. At Lender’s obligation to make the time of the making of the Term Loan first advance hereunder on the Closing Dateshall be subject to, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel in addition to the conditions specified below, delivery to Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts a counterpart of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitment;Note; SECOND AMENDED AND RESTATED LOAN AGREEMENT Rev. June ‘97
(c) Duly executed Certificate the Second Amended and Restated Security Agreement of even date herewith between Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completedLender;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsGuarantee;
(e) Duly executed Certificates the Second Amended and Restated Security Agreement of even date herewith between the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title Guarantor and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesLender;
(f) Certified copies a Certificate of Corporate Resolutions of Borrower and the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit PartyGuarantor;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation a copy of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability charter documents of the Credit Documents Borrower and the other documents to be executed and delivered hereunder, and Guarantor certified by the appropriate official of such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredPerson’s state of organization;
(h) Certified copies an Arbitration and Notice of Final Agreement among Borrower, the Intercompany Credit Documents, to the extent that they existGuarantor and Lender;
(i) Certified copies a certificate (or certificates) of indenturesthe due incorporation, credit agreementsvalid existence and good standing of Borrower and the Guarantor in their respective states of incorporation, leases, capital leases, instrumentsissued by the appropriate authorities of such jurisdiction, and other documents evidencing or securing Indebtedness certificates of any Consolidated Company described on Schedule 8.1(b)Borrower’s and the Guarantor’s good standing and due qualification to do business, other than with respect to any such Indebtedness outstanding with the Lender, issued by appropriate officials in any single case greater than $100,000;state in which the character of the properties owned or held by such Person or the nature of the business transacted by it makes such qualification necessary; and
(j) Certificates, reports and such other information documents as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of . Lender’s obligation to make any advance (including the types and amounts of insurance (property and liabilityfirst) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The under this Loan to be made on the Closing Date Agreement and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Loan Documents shall be reasonably satisfactory in form and substance subject to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effectconditions precedent that, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans advance and after giving effect thereto (except to the extent that such a) all representations and warranties expressly relate made to an earlier date Lender in this Loan Agreement and the other Loan Documents shall be true and correct, as of and as if made on such date, (b) no material adverse change in the consolidated financial condition of Borrower or are affected by transactions permitted under this Agreement);
(w) Since the financial condition of the Guarantor since the effective date of the most recent financial statements of the furnished to Lender by Borrower described in Section 6.3 hereof, there shall have been occurred and be continuing, and (c) no change which event has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effectoccurred and is continuing, or (ii) seeking to prohibit would result from the requested advance, which with notice or restrict one or more Credit Party’s ownership or operation lapse of any portion of its business or assetstime, or to compel one or more Credit Parties to dispose both, would constitute an Event of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
Default (y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received as such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderterm is defined hereinbelow).
Appears in 1 contract
Sources: Loan Agreement (Us Home Systems Inc)
Conditions Precedent to Advances. At 3.1 GBCC shall not be obligated to make any Advance hereunder (including the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender first) until it shall have received the followingfollowing documents, duly executed in form and substance reasonably satisfactory in all respects to the LenderGBCC and its counsel:
(a) The duly executed counterparts of this Agreement;
(b) The duly UCC-3 financing statements executed Term Note evidencing the Term Loan Commitmentby Company;
(c) Duly executed Certificate the amended and restated continuing unconditional and absolute guarantee by ACS of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completedall Obligations;
(d) Duly an acknowledgment executed Certificates by Finova Mezzanine Capital, Inc. respecting that certain Subordination Agreement, dated as of the Secretary or Assistant Secretary of each of the Credit Parties attaching June 30, 1998, among Finova Mezzanine Capital, Inc. (as successor in interest to Sirrom Capital Corp. d/b/a Tandem Corp.), FFI, FFC, ACS, and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsCompany;
(e) Duly the Trademark Security Agreement;
(f) the Collateral Assignment of Patents;
(g) the Mortgage and a gap mortgage;
(h) certificates executed Certificates of by the President and the Secretary or an Assistant Secretary of each of the Credit Parties Company and ACS certifying (i) the namenames and signatures of the officers of Company or ACS, title as appropriate, authorized to execute Transaction Documents, (ii) the resolutions duly adopted by the Boards of Directors of Company or ACS, as appropriate, authorizing the execution of this Agreement and true signature of each officer of such entities executing the Credit other Transaction Documents, and (iiiii) correctness and completeness of the copy of the bylaws of Company or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existenceACS, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instrumentsappropriate, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they existattached thereto;
(i) Certified copies certificates regarding the valid existence and good standing of indentures, credit agreements, leases, capital leases, instruments, each of Company and other documents evidencing or securing Indebtedness ACS in the state of any Consolidated Company described on Schedule 8.1(b), other than with respect to any its organization issued by the appropriate governmental authorities in such Indebtedness outstanding with the Lender, in any single case greater than $100,000jurisdiction;
(j) Certificates, reports a release executed by Durco releasing all liens and other information as security interests of Durco in the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plansCollateral;
(k) Certificates, reports, environmental audits endorsements naming GBCC as an additional insured and investigations, loss payee on all liability insurance and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence all property insurance policies of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect theretoCompany;
(l) Certificates, reports an appraisal of the Real Property Collateral performed by an appraiser selected by GBCC in its sole and other information as absolute discretion showing that the Lender may reasonably request from any Consolidated Company in order to satisfy fair market value of the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated CompaniesReal Property Collateral is at least $1,315,000;
(m) A summary, set forth a mortgagee's policy of title insurance (or an unconditional commitment for the issuance thereof) in format and detail reasonably an amount at least equal to the fair market value of the Real Property Collateral from a title company acceptable to GBCC insuring that the LenderMortgage creates a valid first lien in favor of GBCC in the Real Property Collateral, such policy to contain only the standard exceptions and such exceptions thereto as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;are acceptable to GBCC; and
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Partiessuch other documents, substantially in the form reasonably acceptable to Lender addressed to the Lender;certificates, opinions, and information that GBCC may require.
(o) Financial Statements of the Borrower3.2 Furthermore, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof GBCC shall not contravene, violate or conflict with, or involve the Lender in a violation of, be obligated to make any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation Advance hereunder (including products liability and patent claimsthe first), unless: (i) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All all representations and warranties made by Borrower contained herein shall be Company in the Transaction Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that Advance as if such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since had been made as of the date of such Advance, (ii) Company has performed and complied with all agreements and conditions required in the most recent financial statements Transaction Documents to be performed or complied with by it on or prior to the date of the Borrower described in Section 6.3 hereofsuch Advance, there (iii) no Default or Event of Default shall have been no change which has had occurred and be continuing, (iv) such Advance shall not be prohibited by any law or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action any regulation or proceeding instituted or pending before any order of any court or other governmental authority oragency or authority, to the knowledge of Borrower, threatened (iv) which reasonably could be expected to Company shall not have a Materially Adverse Effect, repudiated or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation made any anticipatory breach of any portion of its business or assetsobligations under any Transaction Document, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
and (yvi) The Loans to be made and the use of proceeds thereof GBCC shall not contravene, violate have disapproved such Advance in whole or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderpart.
Appears in 1 contract
Sources: Loan and Security Agreement (Aqua Care Systems Inc /De/)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment;
(i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation the amount of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zh) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably requestAdvance. Loan Agreement – F▇▇▇▇▇ ▇▇▇▇▇ ▇▇, all ▇▇, ▇▇ ▇▇-▇ , ▇▇▇▇▇▇ County, Texas 16 No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At The Bank's obligation under this Agreement to make each advance under the time Equipment Line and the obligation of MIDFA to issue its financial assistance for the benefit of the making Borrower is subject to the accuracy, as of the Term Loan hereunder on date hereof and as of the Closing Datedate of each advance, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees representations and expenses warranties contained herein and in each of counsel the other Transaction Documents and to the Lender satisfaction, in the sole discretion of the Bank and any fees MIDFA on or before such date, of the following conditions precedent:
1. The Bank and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender MIDFA (unless otherwise provided) shall have received the following, all of which must be satisfactory in form and substance reasonably satisfactory in all respects content to the LenderBank and MIDFA, in their sole discretion:
(ai) The duly executed counterparts certified copies of this Agreementsuch resolutions, statements, invoices, cancelled checks and other documents as the Bank, MIDFA or their respective counsel may request;
(bii) The duly such lien searches and executed Term Note evidencing financing statements or other documents with respect to the Term Loan Commitmentsecurity interests created by the Transaction Documents as the Bank and MIDFA may request, and such evidence as the Bank may request that all recordings and filings that the Bank, MIDFA or their respective counsel deem necessary or desirable to perfect the security interests created by the Transaction Documents have been effected;
(ciii) Duly executed Certificate of payment by the Borrower in substantially the form which is reasonable acceptable to the Lender Bank and appropriately completed;
(d) Duly executed Certificates MIDFA of the Secretary balance of any commitment fee, loan origination fee, appraisal fee, underwriting fee, MIDFA insurance premium, or Assistant Secretary of each other fees or charges of the Credit Parties attaching and certifying copies of Bank or MIDFA required under the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Transaction Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (iiv) the name, title and true signature grant to the Bank by such documents as the Bank may require of each officer a first lien security interest on a certificate of such entities executing deposit or money market account issued by or established with the Credit Documents, and (ii) the bylaws or comparable governing documents Bank in an amount of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified $500,000.00 which shall increase by the Secretary amount of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Defaultinterest earned;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as a written appraisal of the date of such Loans (except Collateral by an appraiser acceptable to the extent Bank which concludes that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement)the orderly liquidation value of the Collateral will be no less than forty percent (40%) of the original purchase price;
(wvi) Since the date of the most recent financial statements of a written certification signed by the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected that the Collateral is acceptable to have a Materially Adverse Effectthe Borrower;
(xvii) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to a landlord's waiver agreement signed by the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower's landlord; and
(zviii) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory an opinion letter from Borrower's counsel addressed to the LenderBank and MIDFA.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund each Advance shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing Date, all obligations of Borrower hereunder incurred prior to any such applicable Advance (includingthe “Advance Conditions”):
(a) no event constituting a CTMGT Event of Default under a CTMGT Loan shall have occurred and be continuing;
(b) Lender (or the Title Company, without limitationacting at Lender’s direction) shall have received the original Deed of Trust covering the Projects being funded by the Loan, Borrower’s obligations to reimburse duly executed by Borrower for the reasonable fees and expenses benefit of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the followingoriginal Note for the Loan, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitmentby Borrower;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable Lender shall have received all Required Documents relating to the Loan and all Closing Deliveries required to be delivered to Lender and appropriately completedas further described in Section 6.1;
(d) Duly Lender shall have received an Advance Request properly completed and duly executed Certificates of by a Principal Officer, accompanied by all required attachments, and all matters certified in the Secretary or Assistant Secretary of each of the Credit Parties attaching Advance Request shall be true and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentscorrect in all respects;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title representations and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, warranties made in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents this Agreement and the other documents to be executed Loan Documents by Borrower and delivered hereunder, the Borrower-Related Parties and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, certificates and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b)delivered pursuant thereto, other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement)funding;
(wf) Since all of the covenants and agreements contained in this Agreement and the other Loan Documents to be complied with and performed as of the date hereof by Borrower and the Borrower-Related Parties have been duly complied with and performed on and as of the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectfunding;
(xg) There no event constituting an Event of Default, shall have occurred and be no action or proceeding instituted or pending before any court or other governmental authority orcontinuing, as determined by Lender pursuant to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse EffectSection 11.1;
(yh) The Loans on and as of the date of funding, all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the delivered to Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.by
Appears in 1 contract
Sources: Construction Loan Agreement (United Development Funding IV)
Conditions Precedent to Advances. At Notwithstanding any other provision of this Agreement or the time Other Agreements and without affecting in any manner the rights of the making of the Term Loan hereunder on the Closing DateLender under this Agreement, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees it is understood and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the that Lender shall have received no obligation to make any advance under this Agreement unless and until the followingfollowing conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory in all respects to the LenderLender and its counsel:
(a) The Lender shall have received, on or prior to the Closing Date unless otherwise indicated, the following documents:
(i) the Notes, duly executed counterparts of this Agreementand delivered;
(bii) The duly executed Term Note evidencing evidence of the Term Loan Commitmentqualification and good standing of Borrower in each state in which it is required to be qualified to do business except where its failure to qualify or its lack of good standing would not have a material, adverse affect on Borrower or its ability to conduct its business as currently conducted;
(ciii) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying certified copies of the resolutions of the boards Board of directors Directors of Borrower (a) authorizing the Loans and the Hedge Agreement, and (b) authorizing execution and delivery of this Agreement and the Other Agreements by officers of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsBorrower;
(eiv) Duly executed Certificates certificates of the Secretary or an Assistant Secretary of each secretary of the Credit Parties Borrower certifying (i) to the nameLender the names of its officers, title and true signature the offices that each holds, the authenticity of each officer of such entities executing the Credit Documentstheir signatures, and (ii) the bylaws or comparable governing documents completeness and accuracy of such entitiesits articles of incorporation and bylaws;
(fv) Certified copies an opinion of Borrower's counsel, duly executed and delivered; and
(vi) the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit PartyOther Agreements, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partyduly executed and delivered;
(gb) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Borrower shall have executed and delivered hereunder, such additional documents and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall instruments as have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained been requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(oc) Financial Statements of the Borrower, audited representations and warranties contained herein shall be true on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made Closing Date, and there shall exist on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(vd) All representations the advances on the terms and warranties conditions herein provided (including the use by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date proceeds of the most recent financial statements advances) shall not violate any applicable law or governmental regulation (including, without limitation, Regulations G, T, U and X of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(xBoard of Governors of the Federal Reserve System) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the subject Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or to tax (other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form than income and substance reasonably satisfactory to the Lender.franchise taxes)
Appears in 1 contract
Conditions Precedent to Advances. At the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), Bank shall have no obligation to make any Advance until the conditions set forth in the following subparagraphs and elsewhere herein have been paid satisfied at the expense of Borrower, as determined by Bank in full, its sole and the Lender absolute discretion:
(a) Borrower shall have received the followingdelivered to Bank, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of Bank, this Agreement, the Note, the Security Agreements and such other documents, instruments, financing statements, certificates and agreements as Bank may reasonably request;
(b) The duly executed Term Note evidencing If Borrower is a corporation or a partnership, Borrower shall have delivered to Bank, in form and substance satisfactory to Bank in its sole and absolute discretion certified copies of resolutions of Borrower's board of directors or partners, as the Term case may be, authorizing Borrower to execute, deliver, honor and perform the Loan CommitmentDocuments and to grant the security interest in the Property as provided in the Security Agreements and certifying the names and signatures of the officers or partners, as the case may be, of Borrower authorized to sign the Loan Documents;
(c) Duly executed Certificate All of Borrower in substantially Bank's liens and security interests securing the form which is reasonable acceptable to the Lender and appropriately completedLoan, shall have been validly perfected;
(d) Duly executed Certificates No material adverse change shall have occurred in the business or financial condition of Borrower or any guarantor since the date of the Secretary latest financial statements given to Bank by on behalf of Borrower or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentssuch guarantor;
(e) Duly executed Certificates Each of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title warranties and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified representations made by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially Borrower in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowereach Advance; and
(zf) The Lender Borrower shall have received such kept and performed the various covenants, obligations and agreements on its part to be kept and performed under the Loan Documents and no Event of Default, or act or event which with the giving of notice or the passage of time, or both, would constitute an Event of Default hereunder or under any of the other documents or legal opinions as the Lender may reasonably requestLoan Documents, all in form shall have occurred and substance reasonably satisfactory to the Lenderbe continuing.
Appears in 1 contract
Sources: Revolving Line of Credit Loan Agreement (Schuff Steel Co)
Conditions Precedent to Advances. At Lender's obligation to make the time of the making of the Term Loan -------------------------------- first advance hereunder on the Closing Dateshall be subject to, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel in addition to the conditions specified below, delivery to Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts a counterpart of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan CommitmentNote;
(c) Duly executed Certificate the Security Agreement of even date herewith between Borrower in substantially and Lender (the form which is reasonable acceptable to the Lender and appropriately completed;"Security Agreement"); ------------------
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsGuaranty;
(e) Duly executed Certificates an opinion of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title counsel for Borrower and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesGuarantor;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party a Borrowing Base Certificate, certified by the Secretary president of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit PartyBorrower;
(g) Copies termination of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement commitment of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents First Savings Bank to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredadvance funds to Borrower;
(h) Certified true and correct copies of the Intercompany purchase agreement pursuant to which Guarantor is purchasing First Consumer Credit Documents, to the extent that they existLLC;
(i) Certified true and correct copies of indenturesthe assignment documents executed by Guarantor in favor of Borrower, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect pursuant to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000which Guarantor assigned to Borrower all Installment Contracts acquired from First Consumer Credit LLC;
(j) Certificates, reports true and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees correct copies of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;merger documents pursuant to which First Consumer Credit LLC is merged into Borrower with Borrower being the surviving entity; and
(k) Certificates, reports, environmental audits and investigations, and such other information documents as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(ui) There shall then exist no Default or Event a listing of Default;
(v) All representations and warranties all Installment Contracts purchased by Borrower contained herein shall be true since the date of the last report delivered to Lender pursuant to Section 10(e); (ii) a listing of all Installment Contracts sold by Borrower since the date of the last report delivered to Lender pursuant to Section 10(e); and correct in all material respects with the same effect as though such representations and warranties had been made on and (iii) an Installment Contract aging report dated as of the date of Borrower's request for such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderadvance.
Appears in 1 contract
Conditions Precedent to Advances. At 3.1 Fidelity shall not be obligated to make any Advance or Term Advance hereunder (including the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender first) until it shall have received the followingfollowing documents, duly executed in form and substance reasonably satisfactory in all respects to the LenderFidelity and its counsel:
(a) The duly general continuing guarantees of the Obligations executed counterparts of this Agreementby Waste Recovery-Illinois, Waste Recovery-Illinois, L.L.C. and Domino Salvage, Tire Lending, Inc., respectively;
(b) The certificates executed by the President and the Secretary of the Company and each guarantor of the Obligations certifying (i) the names and signatures of the officers of the Company or guarantor, as the case may be, authorized to execute Transaction Documents, (ii) the resolutions duly executed Term Note evidencing adopted by the Term Loan CommitmentBoard of Directors of the Company or guarantor, as the case may be, authorizing the execution of the Transaction Documents to which the Company or guarantor is a party, and (iii) correctness and completeness of the copy of the bylaws of the Company or guarantor, as the case may be, attached thereto;
(c) Duly a certificate executed Certificate by the President and the Chief Financial Officer/Treasurer of Borrower the Company certifying the satisfaction of the conditions set forth in substantially the form which is reasonable acceptable to the Lender and appropriately completedSection 3.2;
(d) Duly executed Certificates certificates regarding the due formation, valid existence and good standing of the Secretary or Assistant Secretary Company and each corporate guarantor in the state of each of its organization issued by the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentsappropriate governmental authorities in such jurisdiction;
(e) Duly releases executed Certificates by Chase Bank releasing all liens and security interests of Chase Bank in the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesCollateral;
(f) Certified copies a favorable opinion of counsel for the Company and each guarantor of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of Obligations covering such Credit Party, together with certificates of good standing or existence, matters as Fidelity may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partyreasonably request;
(g) Copies of endorsements naming Fidelity as an additional insured or loss payee, as appropriate, on all documents liability insurance and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation property insurance policies of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredCompany;
(h) Certified copies an appraisal of the Intercompany Credit Documents, to Company's Eligible Machinery and Equipment performed by an appraiser selected by Fidelity in its sole and absolute discretion showing that the extent that they existforced liquidation value of such Eligible Machinery and Equipment is at least $461,575;
(i) Certified copies of indenturesthe Patent Collateral Assignment and the Trademark Security Agreement, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with duly executed by the Lender, in any single case greater than $100,000Company;
(j) Certificatesa subordination agreement with each of the U.S. Small Business Administration and The Bank of New York (as trustee for the Development Authority of ▇▇▇▇▇▇ County Georgia), reports and other information as respectively, pursuant to which each subordinates in favor of Fidelity any liens or security interests that it may have now or hereafter in the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as Collateral, to the absence satisfaction of any material liabilities or obligations arising from matters relating Fidelity, to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plansFidelity's security interest therein;
(k) Certificatesa letter from NationsBank, reportsN.
A. stating that the financing statements filed in its favor with the Texas Secretary of State covering Waste Recovery Services, environmental audits and investigations, and other information as Inc. do not cover the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect theretoCollateral;
(l) Certificatestax lien releases from the City of Atlanta, reports the State of Georgia, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitationMultnomah County, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;Oregon; and
(m) A summary, set forth in format and detail reasonably acceptable evidence that financing statement no. 97-007725 filed by Associates Commercial Corporation with the Texas Secretary of State has been amended to the Lender, as the Lender may reasonably request, reflect that it does not cover any of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;Collateral.
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof 3.2 Fidelity shall not contravene, violate be obligated to make any Advance or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation Term Advance hereunder (including products liability and patent claimsthe first), unless: (i) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All all representations and warranties made by Borrower contained herein shall be the Company in the Transaction Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that Advance or Term Advance as if such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since had been made as of the date of such Advance or Term Advance, (ii) the most recent financial statements Company has performed and complied with all agreements and conditions required in the Transaction Documents to be performed or complied with by it on or prior to the date of such Advance or Term Advance, (iii) no Event of Default or any event or circumstance that, with the Borrower described in Section 6.3 hereofpassage of time, there the giving of notice or both, would become an Event of Default shall have been no change which has had occurred, (iv) such Advance or could reasonably Term Advance shall not be expected to have a Materially Adverse Effect;
(x) There shall be no action prohibited by any law or proceeding instituted any regulation or pending before any order of any court or other governmental authority oragency or authority, (v) none of the Company or any guarantor shall have repudiated or made any anticipatory breach of any of its obligations under any Transaction Document, and (vi) Fidelity shall not have disapproved such Advance or Term Advance in whole or in part.
3.3 Fidelity shall not be obligated to make the first Advance to the knowledge Company hereunder, unless, at the time thereof, the Borrowing Base exceeds the aggregate principal amount of Borrower, threatened the first Advance to the Company hereunder (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and after taking into account the use of the proceeds thereof shall not contraveneof each such first Advance and the Term Advance), violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderby at least $300,000.
Appears in 1 contract
Conditions Precedent to Advances. At the time of In addition to requirements for the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid set forth elsewhere in fullthis Agreement, and without limiting the discretion of Lender to make or refuse to make any Advance, Lender shall have not make any Advance hereunder unless and until Lender has received all of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this This Agreement, the Note, the Collateral Pledge Agreement, the Guaranty, an Article 9 Certificate and a Federal Reserve Form U-1 (collectively, along with the UCC Financing Statement referred to below, the “Credit Documents”), all properly executed;
(b) The duly executed Term Note evidencing A Uniform Commercial Code Financing Statement in a form acceptable for filing with the Term Loan CommitmentDelaware Secretary of State;
(c) Duly executed Certificate The following organizational information of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
Borrower: (di) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies a copy of the resolutions of adopted by the boards board of directors of the Credit PartiesBorrower, authorizing as applicable the execution, delivery and performance of the Credit DocumentsDocuments and certified by the Secretary of Borrower; (ii) copies of the Certificate of Incorporation and By-Laws of Borrower, certified by its Secretary as being true and correct copies thereof; (iii) a certificate signed by the Secretary of Borrower as to the incumbency and signature of the person or persons authorized to execute and deliver the Credit Documents and all other documents referred to in this Agreement and make requests for advances hereunder; and (iv) a certificate of good standing issued by the Delaware Secretary of State;
(d) The following organizational information of Guarantor: (i) a copy of the resolutions adopted by the board of directors of Guarantor, authorizing the execution, delivery and performance of the Guaranty and certified by the Secretary of Guarantor; (ii) copies of the Certificate of Incorporation and By-Laws of Guarantor, certified by its Secretary as being true and correct copies thereof; (iii) a certificate signed by the Secretary of Guarantor as to the incumbency and signature of the person or persons authorized to execute and deliver the Credit Documents and all other documents referred to in this Agreement and make requests for advances hereunder; and (iv) a certificate of good standing issued by the Delaware Secretary of State;
(e) Duly executed Certificates of UCC search results for Borrower and for P▇▇▇▇ ▇▇▇▇▇▇▇ & Co. from the Secretary or an Assistant Delaware Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesState;
(f) Certified copies An opinion of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Partycounsel from Faegre & B▇▇▇▇▇ LLP, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partycounsel for Borrower and Guarantor;
(g) Copies Payment of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement a closing fee in the amount of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;$500,000.00; and
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and Such other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Notwithstanding any other provision of this Agreement or the time Other Agreements and without affecting in any manner the rights of the making of the Term Loan hereunder on the Closing DateLender under this Agreement, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees it is understood and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the that Lender shall have received no obligation to make any advance under this Agreement unless and until the followingfollowing conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory in all respects to the LenderLender and its counsel:
(a) The Lender shall have received, on or prior to the Closing Date unless otherwise indicated, the following documents:
(i) the Notes, duly executed counterparts of this Agreementand delivered;
(bii) The duly executed Term Note evidencing evidence of the Term Loan Commitmentqualification and good standing of Borrower in each state in which it is required to be qualified to do business except where its failure to qualify or its lack of good standing would not have a material, adverse affect on Borrower or its ability to conduct its business as currently conducted;
(ciii) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying certified copies of the resolutions of the boards Board of directors Directors of Borrower (a) authorizing the Loans and the Hedge Agreement, and (b) authorizing execution and delivery of this Agreement and the Other Agreements by officers of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsBorrower;
(eiv) Duly executed Certificates certificates of the Secretary or an Assistant Secretary of each secretary of the Credit Parties Borrower certifying (i) to the nameLender the names of its officers, title and true signature the offices that each holds, the authenticity of each officer of such entities executing the Credit Documentstheir signatures, and (ii) the bylaws or comparable governing documents completeness and accuracy of such entitiesits articles of incorporation and bylaws;
(fv) Certified copies an opinion of Borrower’s counsel, duly executed and delivered; and
(vi) the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit PartyOther Agreements, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partyduly executed and delivered;
(gb) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Borrower shall have executed and delivered hereunder, such additional documents and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall instruments as have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained been requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(oc) Financial Statements of the Borrower, audited representations and warranties contained herein shall be true on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made Closing Date, and there shall exist on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(vd) All representations the advances on the terms and warranties conditions herein provided (including the use by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date proceeds of the most recent financial statements advances) shall not violate any applicable law or governmental regulation (including, without limitation, Regulations G, T, U and X of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(xBoard of Governors of the Federal Reserve System) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the subject Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or to tax (other governmental authority applicable to Borrower; and
(zthan income and franchise taxes) The and Lender shall have received such certificates or other documents or legal opinions evidence as the Lender may reasonably request, request to establish compliance with this condition; and
(e) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be in substance and form and substance reasonably satisfactory to the LenderLender and its counsel, and Lender and its counsel shall have received all such counterpart originals or certified or other copies of such documents as Lender or its counsel may reasonably request.
Appears in 1 contract
Conditions Precedent to Advances. At Notwithstanding any other provision of this Agreement or the time Other Agreements and without affecting in any manner the rights of the making of the Term Loan hereunder on the Closing DateLender under this Agreement, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees it is understood and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the that Lender shall have received no obligation to make any advance under this Agreement unless and until the followingfollowing conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory in all respects to the LenderLender and its counsel:
(a) The Lender shall have received, on or prior to the Closing Date, the following documents: 10
(i) the Revolving Line of Credit Note, duly executed counterparts of this Agreementand delivered;
(bii) The the Term Note, duly executed Term Note evidencing the Term Loan Commitmentand delivered;
(ciii) Duly the Guaranty, duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completeddelivered;
(div) Duly the Merchant Loan Documents, duly executed and delivered;
(v) certified copies of the Certificates of the Secretary or Assistant Secretary Incorporation, Bylaws and evidence of good standing of each of party comprising the Credit Parties attaching and certifying Borrower Group in each state in which it is required to be qualified to do business;
(vi) certified copies of the resolutions of the boards Board of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary Directors of each of the parties comprising the Borrower Group (a) authorizing the Revolving Credit Parties certifying (i) the name, title Facility and true signature of each officer of such entities executing the Credit Documents, Term Loan and (iib) authorizing execution and delivery of this Agreement and the bylaws or comparable governing documents Other Agreements by officers of such entitiesthe Borrower Group;
(fvii) Certified copies certificates of the certificate or articles of incorporation secretary of each Credit Party certified by party comprising the Secretary Borrower Group certifying to the Lender the names of State or its officers, the Secretary or Assistant Secretary offices that each holds and the authenticity of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partytheir signatures;
(gviii) Copies opinion of B▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower Group, dated as of the Closing Date, with respect to the transactions contemplated in form and substance satisfactory to Lender;
(ix) copies of all documents filing receipts and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or acknowledgments issued by any material Contractual Obligation governmental authority to evidence any recordation or filing necessary to perfect the Lien of Lender on the Credit PartiesCollateral and evidence in a form acceptable to Lender that such Lien constitutes a valid and perfected Prior Security Interest;
(x) the Other Agreements, duly executed and delivered; and
(xi) a Borrowing Base Certificate in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents form satisfactory to be Lender.
(b) Borrower Group shall have executed and delivered hereundersuch documents and instruments as have been requested by Lender in order to create, continue or perfect a Prior Security Interest and First Lien in favor of Lender on the Collateral (except liens described on Schedule I hereto) for the purpose of securing payment of the Indebtedness, and such consentsany and all recording and other taxes in connection therewith shall have been paid by Borrower Group;
(c) the representations and warranties contained herein shall be true on and as of the Closing Date, authorizationsand there shall exist on the Closing Date no Event of Default and no event which, filings and orders with notice, lapse of time or the happening of any further condition, event or act, or any combination of the foregoing, would constitute an Event of Default;
(d) insurance complying with Section 9.5 hereof shall be in full force and effect and all applicable waiting periods and, on or before the Closing Date, Borrower Group shall have expired;delivered to Lender one or more certificates of insurance broker(s) satisfactory to Lender, setting forth the insurance obtained in accordance with such Section and stating that such insurance is in full force and effect, all premiums then due thereon have been paid and the insurance policies relating thereto comply with Section 9.5 hereof; 11
(he) Certified copies the advances on the terms and conditions herein provided (including the use by Borrower Group of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees proceeds of the Consolidated Companiesadvances) shall not violate any applicable law or governmental regulation (including, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability Regulations G, T, U and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, X of the types and amounts Board of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements Governors of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 Federal Reserve System) and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the subject Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or to tax (other governmental authority;
(sthan income and franchise taxes) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such certificates or other evidence as Lender may request to establish compliance with this condition; and
(f) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be in substance and form satisfactory to Lender and its counsel, and Lender and its counsel shall have received all such counterpart originals or legal opinions certified or other copies of such documents as the Lender or its counsel may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Administrative Agent’s and Lenders’ obligation to make any advances or issue any Letter of Credit or take any other action under the time Loan Documents shall be subject at all times to satisfaction of each of the making following conditions precedent (in addition to those set forth in Exhibit C and in any other applicable provision hereof):
(a) There shall exist no Default or Potential Default, as defined in this Agreement, or Default as defined in any of the Term other Loan hereunder on Documents or event, omission or failure of condition which would constitute a Default after notice, lapse of time, or both; and
(b) Administrative Agent shall have received all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials required or reasonably requested by Administrative Agent or any Lender under the Closing Dateterms of this Agreement or any of the other Loan Documents, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse delivery of the reasonable fees Notes executed by the Borrower and expenses of counsel to the Lender and any fees and expenses payable to each Lender, as the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitmentcase may be;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed[Reserved];
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by of Borrower contained herein and Guarantor under the Loan Documents shall be true and correct in all material respects respects;
(e) The Borrower shall have paid to KeyBank the fees payable pursuant to the Fee Letter;
(f) There has been no material adverse change in the financial condition of any Related Party, Subsidiary or the Real Estate Assets in the aggregate since the dates of the financial statements furnished to Administrative Agent in connection with the same effect as though such representations and warranties had been made on and as closing of the date of Facility and, except as otherwise disclosed to Administrative Agent in writing, no Related Party has entered into any material transaction which is not disclosed in such Loans financial statements or in filings with the Securities and Exchange Commission, if applicable;
(except g) At such times as Administrative Agent shall determine in its discretion prior to each funding, to the extent available under applicable law and to the extent Administrative Agent determines that the Title Policy may not insure the priority of the Lenders with respect to such representations funding, a “date down” endorsement to each Title Policy indicating no change in the state of title and warranties containing no survey exceptions not approved by the Administrative Agent, which endorsement shall, expressly relate or by virtue of a proper “revolving credit” clause or endorsement in each Title Policy, increase the coverage of each Title Policy to the aggregate amount of all Loans advanced and outstanding and Letters of Credit issued and outstanding (provided that the amount of coverage under an earlier date individual Title Policy for an individual Mortgaged Property need not equal the aggregate amount of all Loans), or are affected by transactions permitted under this Agreement);
if such endorsement is not available, such other evidence and assurances as the Administrative Agent may reasonably require (w) Since which evidence may include, without limitation, an affidavit from the Borrower stating that there have been no changes in title from the date of the most recent financial statements last effective date of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;Title Policy).
(xh) There shall be no action or proceeding instituted or pending before As a condition precedent to any court Lender’s obligations to make any Loans available to the Borrower hereunder, the Borrower will pay to the Administrative Agent for the account of the applicable recording office any mortgage, recording, intangible, documentary stamp or other governmental authority orsimilar taxes and charges which the Administrative Agent reasonably determines to be payable as a result of such Loan to any state or any county or municipality thereof in which any of the Mortgaged Properties are located, and deliver to the knowledge of Borrower, threatened (i) Administrative Agent such affidavits or other information which the Administrative Agent reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans determines to be made and necessary in connection with such payment in order to insure that the use Mortgages on Mortgaged Property located in such state secure the Borrower’s obligation with respect to the Loans then being requested by the Borrower. The provisions of proceeds thereof this Section 3.1(h) shall not contravenelimit the Borrower’s obligations under other provisions of the Loan Documents, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderincluding without limitation Section 13.1 hereof.
Appears in 1 contract
Sources: Revolving Loan Agreement (Phillips Edison - ARC Shopping Center REIT Inc.)
Conditions Precedent to Advances. At the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoingother conditions precedent to Advances described in this Agreement, the following conditions each Loan advance requested under this Agreement shall have been satisfied or shall exist, all be subject to the reasonable prior satisfaction of the Lenderfollowing conditions:
5.1 The Borrowers, or any one of them, shall have received and shall maintain all governmental licenses, approvals and permits as are necessary to enable a Borrower to lawfully lease and operate the Florida Emerald Facilities from and after the Date of this Agreement and shall have satisfied any and all conditions to the effectiveness thereof; provided, however, that as of the time date of this Agreement such licenses, approvals and permits may be provisional licenses, approvals or rights to occupy in which case the initial Loans are made hereunder:
(r) The Loan Borrowers shall use diligent efforts to be made on the Closing Date and the use of proceeds thereof shall not contravenesatisfy all conditions for such licenses, violate approvals or conflict with, or involve the Lender rights to become permanent in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or timely manner.
5.2 The representations and warranties contained herein and in the other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Transaction Documents shall be reasonably satisfactory in form true, correct and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct accurate in all material respects with the same effect as though such representations and warranties had been made on and as of the date Advance Date of such Loans (requested Advance, except for those relating to specific dates or time periods and as changed as permitted by this Agreement.
5.3 The Borrowers shall have performed in all material respects all agreements and satisfied all conditions that this Agreement and each of the other Transaction Documents provides shall be performed by a Borrower on or before such Advance Date.
5.4 No order, judgment or decree of any court, arbitrator or governmental authority shall purport to enjoin or restrain the Lender from making such advance.
5.5 There shall not be pending or, to the extent that such representations best of Borrowers' knowledge threatened: (a) any action, suit, proceeding, governmental investigation or arbitration against or affecting a Borrower or an Affiliate, or any property of a Borrower or an Affiliate, that, in the opinion of the Lender, could reasonably be expected to have a Material Adverse Effect upon a Borrower or an Affiliate; and warranties expressly relate (b) there shall have occurred no development in any action, suit, proceeding, governmental investigation or arbitration previously disclosed to an earlier date or are affected by transactions permitted under the Lender pursuant to this Agreement);, that, in the opinion of the Lender, could reasonably be expected to have a Material Adverse Effect upon a Borrower or an Affiliate. No injunction or other restraining order shall have been issued and no hearing to cause an injunction or other restraining order shall be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, this Agreement or the making of the Loan hereunder.
(w) 5.6 Since the date of the most recent financial statements of submitted to the Borrower described in Section 6.3 hereofLender pursuant to the Transaction Documents, there nothing shall have been no change which occurred or become known that the Lender shall have determined has had a Material Adverse Effect upon a Borrower or could reasonably an Affiliate.
5.7 No Event of Default shall exist and be expected to have a Materially Adverse Effect;continuing.
(x) There shall be no action 5.8 No event has occurred or proceeding instituted condition exists that with the giving of notice or pending before any court or other governmental authority or, to the knowledge passage of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effecttime, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation both, would constitute an Event of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;Default.
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) 5.9 The Lender shall have received such other documents or legal opinions as a Notice of Requested Borrowing at the Lender may reasonably request, all time and in the form required by Section 4.1 above. The furnishing by the Borrower of a Notice of Requested Borrowing shall be deemed to constitute a representation and substance reasonably satisfactory warranty of the Borrower to the Lendereffect that all the conditions set forth in this Agreement for the requested advance are satisfied as of the date of delivery and will be satisfied on the applicable Advance Date.
5.10 The Transaction Documents (other than the Senior Care Master Lease and the Subleases if promptly replaced by the Replacement Master Lease pursuant to the terms of the Non-disturbance Agreement) shall remain in full force and effect.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, to the knowledge of with all endorsements thereto required by Lender, at Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectexpense;
(yg) The Loans to be made the Title Company shall have executed Lender’s Closing instruction and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowertitle objection letter and have complied with all conditions therein; and
(zh) The the amount of the requested Advance, when added to the outstanding principal amount of all Loan then outstanding, would not exceed the Commitment;
(i) the amount of the Advance has been approved by Lender and the proceeds from such Advance shall be used for Approved Purposes; and
(j) Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Advance. No Advance will constitute a waiver of any condition precedent to any obligation of Lender may reasonably request, all in form and substance reasonably satisfactory to the Lendermake any further Advances.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment;
(i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation the amount of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zh) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate an authorized officer of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, to the knowledge of with all endorsements thereto required by Lender, at Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectexpense;
(yg) The Loans to be made the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein; Loan Agreement Prosper 236, Collin County, Texas 13
(h) the amount of the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zg) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At 3.1 Fidelity shall not be obligated to make any Advance hereunder (including the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender first) until it shall have received the followingfollowing documents, duly executed in form and substance reasonably satisfactory in all respects to the LenderFidelity and its counsel:
(a) The duly continuing unconditional and absolute guarantees by American Consolidated Laboratories, Inc., Carolina Contact Lens, Inc., S-O Nebraska, Inc. and Wolcon Laboratories, Inc. of all Obligations, and a security agreement (the "Security Agreement") executed counterparts by S-O Nebraska, Inc. pursuant to which S-O Nebraska, Inc. pledges substantially all of this Agreement;its assets to Fidelity to secure the payment of the Obligations.
(b) The a certificate executed by the President and the Secretary of the Company certifying (i) the names and signatures of the officers of the Company authorized to execute Transaction Documents, (ii) the resolutions duly executed Term Note evidencing adopted by the Term Loan CommitmentBoard of Directors of the Company authorizing the execution of this Agreement and the other Transaction Documents, and (iii) correctness and completeness of the copy of the bylaws of the Company attached thereto;
(c) Duly a certificate executed Certificate by the President and the Chief Financial Officer of Borrower the Company certifying the satisfaction of the conditions set forth in substantially the form which is reasonable acceptable to the Lender and appropriately completedSection 3.2;
(d) Duly executed Certificates certificates regarding the due formation, valid existence and good standing of the Secretary or Assistant Secretary Company in the state of each of its organization issued by the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentsappropriate governmental authorities in such jurisdiction;
(e) Duly releases executed Certificates by Bausch & Lomb and Polymer Technology releasing all liens and security interests of Bausch & Lomb and Polymer Technology in the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesCollateral;
(f) Certified copies a landlord's lien waiver subordinating the security interest of High Associates, Ltd. in the certificate or articles Collateral to the security interest therein of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit PartyFidelity granted herein;
(g) Copies of all documents and instrumentsan intercreditor agreement with Tullis-Dickerson Capital Foc▇▇ ▇.▇., including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation pursuant to which Tullis-Dickerson Captial Foc▇▇ ▇.▇. subordinates its right to receive payment of the Credit PartiesDebt owed by American Consolidated Laboratories, Inc. to it to the payment and performance by American Consolidated Laboratories, Inc. of its obligations to Fidelity under the general continuing guaranty referred to in connection with Section 3.1(a) (the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired"Guaranty");
(h) Certified copies an intercreditor agreement with American Consolidated Laboratories, Inc. pursuant to which American Consolidated Laboratories, Inc. subordinates its right to receive payment of the Intercompany Credit Documents, Debt owed by the Company to it to the extent that they existpayment of the Obligations;
(i) Certified copies a favorable opinion of indenturesSchifino Fleischer, credit agreementscounsel for the C▇▇▇▇▇▇, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any covering such Indebtedness outstanding with the Lender, matters as Fidelity may request in any single case greater than $100,000its sole discretion;
(j) Certificatesendorsements naming Fidelity as an additional insured or loss payee, reports as appropriate, on all liability insurance and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees all property insurance policies of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;Company; and
(k) Certificatesa warrant (the "Warrant") executed by American Consolidated Laboratories, reportsInc. initially for the purchase of 150,000 shares of the common stock of American Consolidated Laboratories, environmental audits Inc.
3.2 Furthermore, Fidelity shall not be obligated to make any Advance hereunder (including the first), unless: (i) all representatives and investigations, and other information as warranties made by the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans Transaction Documents are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that Advance as if such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since had been made as of the date of such Advance, (ii) the most recent financial statements Company has performed and compiled with all agreements and conditions required in the Transaction Documents to be performed or complied with by it on or prior to the date of such Advance, (iii) no Event of Default or any event or circumstance that, with the Borrower described in Section 6.3 hereofpassage of time, there the giving of notice or both, would become an Event of Default shall have been no change which has had occurred, (iv) such Advance shall not be prohibited by any law or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action any regulation or proceeding instituted or pending before any order of any court or other governmental authority oragency or authority, to (v) the knowledge of Borrower, threatened (i) which reasonably could be expected to Company shall have a Materially Adverse Effect, not repudiated or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation made any anticipatory breach of any portion of its business or assetsobligations under any Transaction Document, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
and (yvi) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender Fidelity shall have received approved such other documents or legal opinions as the Lender may reasonably request, all Advance in form and substance reasonably satisfactory to the Lenderits sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (American Consolidated Laboratories Inc)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereofpriority Lien position stated therein; Loan Agreement – F▇▇▇▇▇ ▇▇▇▇▇ ▇▇, there ▇▇▇▇▇▇ ▇▇▇▇▇▇, Texas 16
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment;
(i) which reasonably could the amount of the Advance has been approved by Lender and the proceeds from such Advance shall be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectused for Approved Purposes;
(yj) The Loans to be Borrower shall have complied with each other reasonable request of Lender made and in connection with the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to BorrowerAdvance; and
(zk) The Lender for any Advance following the Initial Commitment Advance, Borrower shall have received such other documents or legal opinions as satisfied all conditions of the Lender may reasonably request, all Post-Closing Agreement. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At Lender's obligation to make the time of the making of the Term Loan first advance hereunder on the Closing Dateshall be subject to, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel in addition to the conditions specified below, delivery to Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts a counterpart of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan CommitmentNotes;
(c) Duly executed Certificate the Security Agreement of even date herewith between Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completedLender;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit DocumentsGuaranties;
(e) Duly executed Certificates the Security Agreements of the Secretary or an Assistant Secretary of even date herewith between each of the Credit Parties certifying (i) the name, title Guarantor and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesLender;
(f) Certified copies a Certificate of the certificate or articles Corporate Resolutions of incorporation of Borrower and each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit PartyGuarantor;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation a copy of the Credit Parties, in connection with charter documents of Borrower and each Guarantor certified by the execution, delivery, performance, validity and enforceability appropriate official of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredPerson's state of organization;
(h) Certified copies an Arbitration and Notice of the Intercompany Credit DocumentsFinal Agreement among Borrower, to the extent that they existGuarantors and Lender;
(i) Certified copies a certificate (or certificates) of indenturesthe due incorporation, credit agreementsvalid existence and good standing of Borrower and each Guarantor in their respective states of incorporation, leases, capital leases, instrumentsissued by the appropriate authorities of such jurisdiction, and other documents evidencing or securing Indebtedness certificates of any Consolidated Company described on Schedule 8.1(b)Borrower's and each Guarantor's good standing and due qualification to do business, other than with respect to any such Indebtedness outstanding with the Lender, issued by appropriate officials in any single case greater than $100,000state in which the character of the properties owned or held by such Person or the nature of the business transacted by it makes such qualification necessary;
(j) Certificatesthe Assumption Agreement among FCC, reports Borrower and other information as Lender, pursuant to which Borrower assumes all obligations of FCC under the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;Existing Loan Agreement; and
(k) Certificates, reports, environmental audits and investigations, and such other information documents as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of . Lender's obligation to make any advance (including the types and amounts of insurance (property and liabilityfirst) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The under this Loan to be made on the Closing Date Agreement and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Loan Documents shall be reasonably satisfactory in form and substance subject to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effectconditions precedent that, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans advance and after giving effect thereto (except to the extent that such a) all representations and warranties expressly relate made to an earlier date Lender in this Loan Agreement and the other Loan Documents shall be true and correct, as of and as if made on such date, (b) no material adverse change in the consolidated financial condition of Borrower or are affected by transactions permitted under this Agreement);
(w) Since the financial condition of any Guarantors since the effective date of the most recent financial statements of the furnished to Lender by Borrower described in Section 6.3 hereof, there shall have been occurred and be continuing, and (c) no change which event has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effectoccurred and is continuing, or (ii) seeking to prohibit would result from the requested advance, which with notice or restrict one or more Credit Party’s ownership or operation lapse of any portion of its business or assetstime, or to compel one or more Credit Parties to dispose both, would constitute an Event of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
Default (y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received as such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lenderterm is defined hereinbelow).
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund each Advance shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing Date, all obligations of Borrower hereunder incurred prior to any such applicable Advance (includingthe “Advance Conditions”):
(a) no event constituting a CTMGT Event of Default under a CTMGT Loan shall have occurred and be continuing;
(b) Lender (or the Title Company, without limitationacting at Lender’s direction) shall have received the original Deed of Trust covering the Projects being funded by the Loan, Borrower’s obligations to reimburse duly executed by Borrower for the reasonable fees and expenses benefit of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the followingoriginal Note for the Loan, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitmentby Borrower;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable Lender shall have received all Required Documents relating to the Loan and all Closing Deliveries required to be delivered to Lender and appropriately completedas further described in Section 6.1;
(d) Duly Lender shall have received an Advance Request properly completed and duly executed Certificates of by a Principal Officer, accompanied by all required attachments, and all matters certified in the Secretary or Assistant Secretary of each of the Credit Parties attaching Advance Request shall be true and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentscorrect in all respects;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title representations and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, warranties made in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents this Agreement and the other documents to be executed Loan Documents by Borrower and delivered hereunder, the Borrower-Related Parties and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, certificates and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b)delivered pursuant thereto, other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of funding;
(f) all of the covenants and agreements contained in this Agreement and the other Loan Documents to be complied with and performed as of the date hereof by Borrower and the Borrower-Related Parties have been duly complied with and performed on and as of the date of funding;
(g) no event constituting an Event of Default, shall have occurred and be continuing, as determined by Lender pursuant to Section 11.1;
(h) on and as of the date of funding, all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 6.1 and Section 7.1) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such Loans statements, certificates or date untrue in any material respect;
(except i) the amount of the requested Advance, when added to the extent outstanding principal amount of all Loans then outstanding, would not exceed the Maximum Commitment;
(j) as of the date of any such Advance, all of the Loan Documents shall have been executed and delivered, and shall be valid, enforceable and in full force and effect;
(k) as of the date of any such Advance, all Loan Expenses and other fees, charges and expenses owed under any of the Loan Documents as of the date of the requested Advance shall have been paid in full (or Lender shall have agreed to fund such Loan Expenses, fees, charges and expenses out of the proceeds of such Advance);
(l) as of the date of any such Advance, Lender’s security interests in all Collateral shall be duly perfected and in the Lien position stated therein;
(m) the title agent shall have delivered to Lender the Title Company’s Title Binder to the Lender pursuant to a Title Commitment, in form and content satisfactory to Lender, wherein the Title Company agrees to provide a Title Policy covering the Lots being funded by such Advance to Lender, obtained at Borrower’ expense;
(n) Borrower and the Borrower-Related Parties shall have complied with each other reasonable request of Lender made in connection with the then-requested Advance that Lender determines is reasonably related to such representations Advance;
(o) the Project has not been destroyed or materially damaged by fire or other casualty;
(p) the Project is not the subject of a condemnation proceeding or litigation;
(q) the building pad site for the Home is not located in flood zone A or V unless Lender gives its advance written consent thereto, which may be withheld for any reason in Lender’s sole and warranties expressly relate absolute discretion;
(r) if requested by Lender, Borrower will also do the following: (i) deliver copies of recorded Affidavits of Commencement to an earlier Lender and the Title Company; (ii) deliver updated Title Binder to Lender showing title to the Lot or Home to be vested in Borrower and no stated facts objectionable to Lender, including without limitation, mechanic’s liens filings for unpaid bills for labor or materials; (iii) furnish Lender and Title Company with a list of the names and addresses of all contractors, subcontractors, laborers, and suppliers who have furnished labor or materials for any Home; (iv) furnish Lender and Title Company with copies of the contracts, bills of sale, receipted vouchers, and agreements under which Borrower claims title to the materials, articles, fixtures, and other personal property used or to be used in the construction or operation of any Home; and/or (v) furnish Lender and Title Company with lien waivers or lien subordination agreements from all contractors, subcontractors, laborers, or suppliers, who have furnished labor, services or material for any Home certifying that they have been fully paid for all labor, services and material furnished by them through the date or of the immediately prior Advance Request;
(s) Lender and Title Company have received a report from Lender’s Inspector indicating (i) whether the Approved Budget is sufficient to complete the Project in substantial accordance with the Plans and Specifications and if not, specifying the amount in excess of the Approved Budget which is necessary to complete the Project in substantial accordance with the Plans and Specifications, which amount Borrower shall, at Lender’s request, place in escrow with Title Company to be released to Borrower upon Lender’s unilateral request therefor; provided, that upon Borrower’s request to Lender for release of such funds, if no Event of Default has occurred and is continuing, Lender will request the Title Company to release the funds to Borrower upon completion of the Project; and further provided, that Borrower agrees that the released funds will be used solely for the purpose of paying Project costs unless all Project costs have been paid in full, (ii) the progress of the work on such Home, (iii) the conformity of the work with the Plans and Specifications, (iv) the sufficiency of the Loan proceeds to fund the work remaining to be completed on such Home, (v) whether the work can be completed in a timely manner, (vi) the Plans and Specifications are affected in compliance in all material respects with all applicable legal Requirements for the full completion of the Project, and (vii) any other matters that Lender reasonably requests to be reviewed by transactions permitted under this Agreement)Lender’s Inspector;
(t) Lender shall have received sales and marketing reports reasonably requested by Lender;
(u) Lender and Title Company shall have received a Foundation Survey upon completion of the foundation of each Home to be reviewed and approved prior to subsequent Advances for work performed after completion of the foundation, and a Completion Survey upon the completion of the Home to be reviewed and approved prior to the final Advance in connection with such Home;
(v) the use of proceeds of such Advance will comply in all respects with Section 7.4;
(w) Since if the Advance is a first Loan Advance after the related Loan Closing and a Projected Cash Shortfall exists, Borrower shall pay the Projected Cash Shortfall at the time of the Loan Advance or provide Lender evidence that the Projected Cash Shortfall has been paid prior to the Loan Advance; and
(x) Borrower shall have obtained all necessary permits to construct the Home on the Lot (including, without limitation, the building permit, if any) and shall have paid all taxes and fees to applicable Governmental Authorities (including, without limitation, all permitting and impact fees, if any) and to any homeowner association that are due prior to the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the LenderAdvance.
Appears in 1 contract
Sources: Construction Loan Agreement (United Development Funding IV)
Conditions Precedent to Advances. At the time of the making of the Term Loan No Lender shall be obligated to make its Advance hereunder on the Closing Effective Date, all obligations of Borrower hereunder incurred prior nor shall any Lender or the Administrative Agent be obligated to take, fulfill or perform any such Advance (includingother action hereunder, without limitation, Borrower’s obligations to reimburse until the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall following conditions have been paid in full, and the Lender shall have received the followingsatisfied, in form and substance reasonably satisfactory the sole discretion of, or waived in all respects to writing by, the LenderLenders:
(a) The This Agreement and all other Transaction Documents or counterparts hereof or thereof shall have been duly executed counterparts of by, and delivered to, the parties hereto and thereto and the Administrative Agent shall have received such other documents, instruments, agreements and legal opinions (including, but not limited to, the documents listed in Schedule I to this Agreement;) as any Lender shall reasonably request in connection with the transactions contemplated by this Agreement, on or prior to the Effective Date, each in form and substance satisfactory to the Administrative Agent.
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Each Lender shall have received such documentation and other documents or legal opinions information requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and shall be satisfied with the results of the due diligence review performed by it and each Lender shall have received all necessary internal approvals.
(c) The Borrower shall have paid all fees required to be paid by it on the Effective Date, including all fees required hereunder and under the Structuring Fee Letter and the Collateral Custodian Fee Letter to be paid as of such date, and shall have reimbursed each Lender, the Lender may reasonably requestAdministrative Agent, the Syndication Agent and the Collateral Custodian for all in form fees, costs and substance reasonably satisfactory expenses related to the transactions contemplated hereunder and under the other Transaction Documents, including the legal and other document preparation costs incurred by any Lender, the Administrative Agent, the Syndication Agent and the Collateral Custodian.
(d) [Reserved].
(e) The Collateral Custodian shall have confirmed that it shall have received the Required Loan Documents for each Loan that is a Transferred Loan as of the Effective Date and confirmed that the Required Loan Documents satisfy the Review Criteria and delivered a Custodial Certificate to the Administrative Agent.
(f) The Administrative Agent shall have received true and complete copies certified by a Responsible Officer of each of the Borrower the Servicer and the BDC of all filings, authorizations and approvals by any Governmental Authority or other third party, if any, required in connection with the transactions contemplated by this Agreement and the other Transaction Documents.
(g) The Administrative Agent shall have received the audited consolidated financial statements of the BDC and its Subsidiaries for the fiscal year ended December 31, 2024, and the unaudited interim consolidated financial statements of the BDC and its Subsidiaries for the most recent fiscal quarter then ended and which are available on the Effective Date.
(h) No Material Adverse Effect with respect to the Borrower shall have occurred since the date of formation of the Borrower and no Material Adverse Effect with respect to the Servicer shall have occurred since December 31, 2024.
Appears in 1 contract
Conditions Precedent to Advances. At Notwithstanding any other provision of this Agreement or the time Other Agreements and without affecting in any manner the rights of the making of the Term Loan hereunder on the Closing DateLender under this Agreement, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees it is understood and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the that Lender shall have received no obligation to make any advance under this Agreement unless and until the followingfollowing conditions have been, and continue to be, satisfied, all in form and substance reasonably satisfactory in all respects to the LenderLender and its counsel:
(a) The Lender shall have received, on or prior to the Closing Date, the following documents:
(i) the Revolving Line of Credit Note, duly executed counterparts of this Agreementand delivered;
(bii) The the Term Note, duly executed Term Note evidencing the Term Loan Commitmentand delivered;
(ciii) Duly the Guaranty, duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completeddelivered;
(div) Duly the Merchant Loan Documents, duly executed and delivered;
(v) certified copies of the Certificates of the Secretary or Assistant Secretary Incorporation, Bylaws and evidence of good standing of each of party comprising the Credit Parties attaching and certifying Borrower Group in each state in which it is required to be qualified to do business;
(vi) certified copies of the resolutions of the boards Board of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary Directors of each of the parties comprising the Borrower Group (a) authorizing the Revolving Credit Parties certifying (i) the name, title Facility and true signature of each officer of such entities executing the Credit Documents, Term Loan and (iib) authorizing execution and delivery of this Agreement and the bylaws or comparable governing documents Other Agreements by officers of such entitiesthe Borrower Group;
(fvii) Certified copies certificates of the certificate or articles of incorporation secretary of each Credit Party certified by party comprising the Secretary Borrower Group certifying to the Lender the names of State or its officers, the Secretary or Assistant Secretary offices that each holds and the authenticity of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partytheir signatures;
(gviii) Copies opinion of B▇▇▇▇ & H▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower Group, dated as of the Closing Date, with respect to the transactions contemplated in form and substance satisfactory to Lender;
(ix) copies of all documents filing receipts and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or acknowledgments issued by any material Contractual Obligation governmental authority to evidence any recordation or filing necessary to perfect the Lien of Lender on the Credit PartiesCollateral and evidence in a form acceptable to Lender that such Lien constitutes a valid and perfected Prior Security Interest;
(x) the Other Agreements, duly executed and delivered; and
(xi) a Borrowing Base Certificate in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents form satisfactory to be Lender.
(b) Borrower Group shall have executed and delivered hereundersuch documents and instruments as have been requested by Lender in order to create, continue or perfect a Prior Security Interest and First Lien in favor of Lender on the Collateral (except liens described on Schedule I hereto) for the purpose of securing payment of the Indebtedness, and such consentsany and all recording and other taxes in connection therewith shall have been paid by Borrower Group;
(c) the representations and warranties contained herein shall be true on and as of the Closing Date, authorizationsand there shall exist on the Closing Date no Event of Default and no event which, filings and orders with notice, lapse of time or the happening of any further condition, event or act, or any combination of the foregoing, would constitute an Event of Default;
(d) insurance complying with Section 9.5 hereof shall be in full force and effect and all applicable waiting periods and, on or before the Closing Date, Borrower Group shall have expireddelivered to Lender one or more certificates of insurance broker(s) satisfactory to Lender, setting forth the insurance obtained in accordance with such Section and stating that such insurance is in full force and effect, all premiums then due thereon have been paid and the insurance policies relating thereto comply with Section 9.5 hereof;
(he) Certified copies the advances on the terms and conditions herein provided (including the use by Borrower Group of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees proceeds of the Consolidated Companiesadvances) shall not violate any applicable law or governmental regulation (including, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability Regulations G, T, U and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, X of the types and amounts Board of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements Governors of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 Federal Reserve System) and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the subject Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or to tax (other governmental authority;
(sthan income and franchise taxes) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such certificates or other evidence as Lender may request to establish compliance with this condition; and
(f) all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incident thereto shall be in substance and form satisfactory to Lender and its counsel, and Lender and its counsel shall have received all such counterpart originals or legal opinions certified or other copies of such documents as the Lender or its counsel may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At the time of In addition to requirements for the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid set forth elsewhere in fullthis Agreement, and without limiting the discretion of Lender to make or refuse to make any Advance, Lender shall have not make any Advance hereunder unless and until Lender has received all of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this This Agreement, the Note, the Collateral Pledge Agreement, and the Control Agreement (collectively, along with the UCC Financing Statement referred to below, the “Credit Documents”), all properly executed;
(b) The duly executed Term Note evidencing A Uniform Commercial Code Financing Statement in a form acceptable for filing with the Term Loan CommitmentDelaware Secretary of State;
(c) Duly executed Certificate The following organizational information of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
Borrower: (di) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies a copy of the resolutions of adopted by the boards board of directors of the Credit PartiesBorrower, authorizing as applicable the execution, delivery and performance of the Credit DocumentsDocuments and certified by the Secretary of Borrower; (ii) copies of the Certificate of Incorporation and By-Laws of Borrower, certified by its Secretary as being true and correct copies thereof; (iii) a certificate signed by the Secretary of Borrower as to the incumbency and signature of the person or persons authorized to execute and deliver the Credit Documents and all other documents referred to in this Agreement and make requests for advances hereunder; and (iv) a certificate of good standing issued by the Delaware Secretary of State;
(d) UCC search results for Borrower from the Delaware Secretary of State;
(e) Duly executed Certificates An opinion of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the namecounsel from Faegre & ▇▇▇▇▇▇ LLP, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiescounsel for Borrower;
(f) Certified copies Payment to Lender of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, an advisory fee as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;described in Exhibit C attached hereto; and
(g) Copies of all Such other documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereofpriority Lien position stated therein; Loan Agreement – ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, there ▇▇▇▇▇▇ ▇▇▇▇▇▇, Texas 16
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment;
(i) which reasonably could the amount of the Advance has been approved by Lender and the proceeds from such Advance shall be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectused for Approved Purposes;
(yj) The Loans to be Borrower shall have complied with each other reasonable request of Lender made and in connection with the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to BorrowerAdvance; and
(zk) The Lender for any Advance following the Initial Commitment Advance, Borrower shall have received such other documents or legal opinions as satisfied all conditions of the Lender may reasonably request, all Post-Closing Agreement. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement
Conditions Precedent to Advances. At the time of In addition to requirements for the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid set forth elsewhere in fullthis Agreement, and without limiting the discretion of Lender to make or refuse to make any Advance, Lender shall have not make any Advance hereunder unless and until Lender has received all of the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this This Agreement, the Note, the Collateral Pledge Agreement, the Guaranty, and an Article 9 Certificate (collectively, along with the UCC Financing Statement referred to below, the “Credit Documents”), all properly executed;
(b) The duly executed Term Note evidencing A Uniform Commercial Code Financing Statement in a form acceptable for filing with the Term Loan CommitmentDelaware Secretary of State;
(c) Duly executed Certificate The following organizational information of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
Borrower: (di) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies a copy of the resolutions of adopted by the boards board of directors of the Credit PartiesBorrower, authorizing as applicable the execution, delivery and performance of the Credit DocumentsDocuments and certified by the Secretary of Borrower; (ii) copies of the Certificate of Incorporation and By-Laws of Borrower, certified by its Secretary as being true and correct copies thereof; (iii) a certificate signed by the Secretary of Borrower as to the incumbency and signature of the person or persons authorized to execute and deliver the Credit Documents and all other documents referred to in this Agreement and make requests for advances hereunder; and (iv) a certificate of good standing issued by the Delaware Secretary of State;
(d) The following organizational information of Guarantor: (i) a copy of the resolutions adopted by the board of directors of Guarantor, authorizing the execution, delivery and performance of the Guaranty and certified by the Secretary of Guarantor; (ii) copies of the Certificate of Incorporation and By-Laws of Guarantor, certified by its Secretary as being true and correct copies thereof; (iii) a certificate signed by the Secretary of Guarantor as to the incumbency and signature of the person or persons authorized to execute and deliver the Credit Documents and all other documents referred to in this Agreement and make requests for advances hereunder; and (iv) a certificate of good standing issued by the Delaware Secretary of State;
(e) Duly executed Certificates of UCC search results for Borrower from the Secretary or an Assistant Delaware Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesState;
(f) Certified copies An opinion of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Partycounsel from Faegre & B▇▇▇▇▇ LLP, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partycounsel for Borrower and Guarantor;
(g) Copies Payment of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement a closing fee in the amount of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;$250,000.00; and
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and Such other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained requested by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term Loan hereunder on funding date for the Closing DateAdvance or the date of the Interest Reserve Accrual, all obligations of Borrower hereunder incurred prior to any such as applicable (the “Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Conditions”):
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate an authorized officer of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion; Loan Agreement P▇▇▇▇▇▇▇ Creek, D▇▇▇▇▇ County, Texas 13
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, to the knowledge of with all endorsements thereto required by Lender, at Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effectexpense;
(yg) The Loans to be made the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zg) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At Borrower agrees that, notwithstanding anything to the time contrary contained herein or in the other Loan Documents, Lender’s obligation to fund any Advance or to make any Interest Reserve Accrual shall be conditioned upon the satisfaction by Borrower of each of the making following conditions, on and as of the Term funding date for the Advance or the date of the Interest Reserve Accrual, as applicable (the “Advance Conditions”): Loan hereunder on the Closing DateAgreement – Rosehill ReserveHarris County, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:Texas 16
(a) The duly executed counterparts no event constituting an Event of this AgreementDefault shall have occurred and be continuing;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be Principal Officer shall have executed and delivered hereunderto Lender an Advance Request dated the funding date, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially certified in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein Advance Request shall be true and correct in all material respects respects, and Lender shall have approved the Advance Request, as determined by Lender in its sole discretion;
(c) all statements contained in all Loan Documents and all other certificates, statements and data furnished to Lender by or on behalf of Borrower or in connection with the same effect as though such representations and warranties had been made on and as transactions contemplated by this Agreement or any of the other Loan Documents (including all of the documents and information required to be delivered to Lender by Section 7) shall be true and complete in all material respects, and there are no facts or events actually known to Borrower that, if disclosed to Lender, would make such statements, certificates or date untrue in any material respect (and Borrower agrees to inform Lender, prior to Lender making any such Advance, of any such Loans (except facts or events actually known to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this AgreementBorrower);
(wd) Since the date all of the most recent financial statements of Loan Documents shall be valid and subsisting, enforceable and in full force and effect and in the Borrower described in Section 6.3 hereof, there priority Lien position stated therein;
(e) all Loan Expenses owing shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effectpaid in full;
(xf) There the Title Company shall be no action or proceeding instituted or pending before any court or other governmental authority orhave delivered to Lender the Title Company’s unconditional commitment to issue the Title Policy for the Deed of Trust pursuant to a commitment that is satisfactory to Lender in all respects in the full Note amount, with all endorsements thereto required by Lender, at Borrower’s expense;
(g) the Title Company shall have executed Lender’s Closing instruction and title objection letter and have complied with all conditions therein;
(h) the amount of the requested Advance, when added to the knowledge outstanding principal amount of Borrowerall Loan then outstanding, threatened would not exceed the Commitment and would not cause the a violation of Section 10(aa) with respect to the LTV Ratio;
(i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation the amount of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made the Advance has been approved by Lender and the use of proceeds thereof from such Advance shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrowerbe used for Approved Purposes; and
(zh) The Lender Borrower shall have received such complied with each other documents or legal opinions as reasonable request of Lender made in connection with the Lender may reasonably request, all Advance. No waiver given in form and substance reasonably satisfactory connection with any Advance will constitute a waiver of any condition precedent with respect to the Lenderfuture Advances.
Appears in 1 contract
Sources: Loan Agreement (United Development Funding Income Fund V)
Conditions Precedent to Advances. At 3.1 Fidelity shall not be obligated to make any Advance hereunder (including the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender first) until it shall have received the followingfollowing documents, duly executed in form and substance reasonably satisfactory in all respects to the LenderFidelity and its counsel:
(a) The lockbox agreements relating to the lockboxes at any Remittance Address and the related deposit accounts, duly executed counterparts of this Agreementby the financial institutions establishing and maintaining such lockboxes and deposit accounts;
(b) The certificates executed by the President and the Secretary of each Company certifying (i) the names and signatures of the officers of such Company authorized to execute Transaction Documents, (ii) the resolutions duly executed Term Note evidencing adopted by the Term Loan CommitmentBoard of Directors of such Company authorizing the execution of the Transaction Documents to it which it is a party, and (iii) correctness and completeness of the copy of the bylaws of such Company attached thereto;
(c) Duly a certificate executed Certificate by the President and the Chief Financial Officer/Treasurer of Borrower each Company certifying the satisfaction of the conditions set forth in substantially the form which is reasonable acceptable to the Lender and appropriately completedSection 3.2;
(d) Duly executed Certificates of certificates regarding the Secretary or Assistant Secretary due formation, valid existence and good standing of each Company in the state of its organization issued by the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documentsappropriate governmental authorities in such jurisdiction;
(e) Duly executed Certificates landlord agreements subordinating the security interests of any landlord for premises where Eligible Inventory is located in the Secretary or an Assistant Secretary Collateral to the security interest therein of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entitiesFidelity granted herein;
(f) Certified copies a favorable opinion of counsel for the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of Companies covering such Credit Party, together with certificates of good standing or existence, matters as Fidelity may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Partyrequest in its sole discretion;
(g) Copies of endorsements naming Fidelity as an additional insured or loss payee, as appropriate, on all documents liability insurance and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation property insurance policies of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expiredCompanies;
(h) Certified copies validity guaranties of the Intercompany Credit Documents▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to the extent that they exist▇▇.;
(i) Certified copies of indenturesrelease agreements executed by IBM, credit agreementsAT&T, leasesHewlett-Packard, capital leasesWilmington Savings, instrumentsWilmington Trust, Banyan Systems and other documents evidencing or securing Indebtedness ▇▇▇▇▇▇ Micro of any Consolidated Company described on Schedule 8.1(bliens or security interests, if any, that they may have in the Collateral.
3.2 Fidelity shall not be obligated to make any Advance hereunder (including the first), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
unless: (ji) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties made by Borrower contained herein shall be each Company in the Transaction Document are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that Advance as if such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since had been made as of the date of such Advance, (ii) each Company have performed and complied with all agreements and conditions required in the most recent financial statements Transaction Documents to be performed or complied with by them on or prior to the date of such Advance, (iii) no Event of Default or any event or circumstance that, with the Borrower described in Section 6.3 hereofpassage of time, there the giving of notice or both, would become an Event of Default shall have been no change which has had occurred, (iv) such Advance shall not be prohibited by any law or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action any regulation or proceeding instituted or pending before any order of any court or other governmental authority oragency or authority, to the knowledge of Borrower, threatened (iv) which reasonably could be expected to neither Company shall have a Materially Adverse Effect, repudiated or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation made any anticipatory breach of any portion of its business obligations under any Transaction Document, and (vi) Fidelity shall not have disapproved such Advance in whole or in part.
3.3 Fidelity shall not be obligated to make any Advance hereunder (including the first), unless (a) Litronic shall have completed an initial public offering of its capital stock resulting in net proceeds of at least $20,000,000 to Litronic and (b) the Companies shall have acquired all of the assets, or to compel one or more Credit Parties to dispose and assumed all of or hold separate all or any portion the liabilities, of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the LenderPulsar.
Appears in 1 contract
Conditions Precedent to Advances. At the time The obligation of the making of the Term Loan Lenders to make Advances hereunder on the Closing DateDate is subject to satisfaction, all obligations or waiver by each Lender hereunder, of Borrower hereunder incurred prior to any such Advance the following conditions precedent:
(including, without limitation, Borrower’s obligations to reimburse the reasonable fees a) Administrative Agent and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the each Lender shall have received each of the followingfollowing documents, duly executed, in each case, in form and substance reasonably satisfactory in all respects to the LenderAdministrative Agent and each of Lenders:
(ai) The duly executed counterparts of this Agreementthe Margin Loan Documentation, dated as of the Closing Date;
(bii) The duly executed Term Note evidencing the Term Loan Commitment;
(cA) Duly executed Certificate a certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates Borrower, dated as of the Secretary or Assistant Secretary of each of the Credit Parties attaching Closing Date, and certifying copies of executed by its Authorized Representative, which shall (1) certify the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
Margin Loan Documentation to which it is a party and the Transactions to be consummated by it on such date and (e2) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the namecontain appropriate attachments, title including its amended and true signature of each officer of such entities executing the Credit restated Organization Documents, and (iiB) the bylaws or comparable governing documents a long form good standing certificate for Borrower from its jurisdiction of such entitiesorganization;
(fiii) Certified copies a solvency certificate of Borrower from an Authorized Representative thereof, dated as of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit PartyClosing Date;
(giv) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed a favorable opinion of in-house legal counsel to the Credit PartiesBorrower’s counsel, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the BorrowerAdministrative Agent and Lenders, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance reasonably satisfactory to the Lender; and
(t) The status of all pending Administrative Agent and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the each Lender, and dated as of the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of DefaultClosing Date;
(v) the results of a recent Lien and judgment search in the jurisdiction of organization of Borrower, and such search shall reveal no Liens on any of the assets of, or judgments against, Borrower except for Permitted Liens;
(vi) proper financing statements (Form UCC-1 or the equivalent) for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security and Control Agreements;
(vii) FRB Form U-1 completed to satisfaction of Lenders and duly executed by Borrower; and
(viii) any information or documentation reasonably requested by any Lender pursuant to Section 9.15.
(b) On or prior to the Closing Date, the Collateral Accounts for the Lenders shall have been established by Borrower; Borrower shall have executed and delivered all account opening documentation required by Custodian; security entitlements in respect of the Initial Pledged Units constituting Acceptable Collateral shall have been credited to the Collateral Accounts on a Pro Rata Basis free from all Transfer Restrictions (other than Existing Transfer Restrictions) and the Collateral Requirement shall have been satisfied in all material respects.
(c) All reasonable and documented out-of-pocket fees or expenses required to be paid under the Margin Loan Documentation on or before the Closing Date, including the Structuring Fee and counsel fees, which such counsel fees shall not exceed the Maximum Counsel Fee Amount, invoiced at least two Business Days prior to such date shall have been paid on or before such date or netted against the Advances hereunder.
(d) Each of the representations and warranties by Borrower contained herein in the Margin Loan Documentation shall be true and correct in all material respects with the same effect (unless any such representation or warranty is qualified as though such representations to materiality, in which case it shall be true and warranties had been made correct in all respects) on and as of the date of such Loans (Closing Date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such date (unless any such representation or are affected by transactions permitted under this Agreementwarranty is qualified as to materiality, in which case it shall be true and correct in all respects as of such date);.
(we) Since Borrower shall have delivered to Administrative Agent a certificate from a Responsible Officer of Borrower in the date form set forth in Exhibit A hereto, dated as of the most recent financial statements Closing Date, which shall contain representations that the conditions set forth in Subsections (b), (d), (f) and (g) of this Section 4.01 have been satisfied.
(f) Immediately after giving effect to each of the Borrower described in Section 6.3 hereofAdvances, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or the LTV Ratio shall not exceed the LTV Initial Level and (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation all types and amounts of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have Collateral shall be held on a Materially Adverse Effect;Pro Rata Basis.
(yg) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender No Mandatory Prepayment Event shall have received such other documents occurred that has not been cured or legal opinions waived, and no Default, Event of Default or Adjustment Determination Period shall have occurred and be continuing, in each case on the Closing Date, and none of the foregoing shall result from the Advances or the application of the proceeds therefrom and any related Collateral deliveries. Each borrowing of an Advance shall be deemed to constitute a representation and warranty by Borrower on the date thereof as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lendermatters specified in Subsections (b), (d), (f) and (g) above.
Appears in 1 contract