Conditions Precedent to Loans. The obligation of each of the Lenders to make its Loan shall be subject to fulfillment of the following conditions precedent on or prior to the Closing Date in form and substance satisfactory to the Administrative Agent and its counsel: (a) The Borrower shall have delivered to the Administrative Agent the Notice of Borrowing along with the Pay Proceeds Letter. (b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower, certifying that, as of the Closing Date, all of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens). (c) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent: (i) A Note duly executed by the Borrower for each Lender; (ii) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with evidence of such filings; (iii) A certified copy of the Borrower’s certificate of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect to the Loan Documents; (iv) A certificate of the Borrower certifying the names and true signatures of the person or persons authorized to execute and deliver on behalf of the Borrower the Loan Documents to which it is a party and the other documents to be delivered by it hereunder; (v) A favorable opinion of each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special New York counsel to the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special STB counsel to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrower; (vi) Confirmation that the Uniform Commercial Code Financing Statements naming the Administrative Agent (as the Secured Party under the Security Agreement and the Pledge Agreement) as secured party in the States of California, Delaware, Florida and Illinois have been filed in the proper recording office in connection with the Collateral; (vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 of the Security Agreement; (viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request; (ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement; (x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment; (xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto; (xii) The Initial Appraisal; (xiii) [Intentionally Omitted] (xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds; (xv) The Management Agreement duly executed by the Borrower and PLM; and (xvi) Each of the other Loan Documents duly executed by each of the parties thereto. (d) The Borrower shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein. (e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to such Equipment Lessees). (f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that: (i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties shall have been true and accurate as of such earlier date); and (ii) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement of the Loans. (g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date. (h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0. (i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 2 contracts
Sources: Loan Agreement (PLM Equipment Growth & Income Fund Vii), Loan Agreement (PLM Equipment Growth Fund V)
Conditions Precedent to Loans. The obligation On the Closing Date, all obligations of each of the Lenders to make its Loan shall be subject to fulfillment of the following conditions precedent on or Intermet hereunder incurred prior to such date (including, without limitation, Intermet's obligations to reimburse the Closing Date in form reasonable fees and substance satisfactory expenses of counsel to the Administrative Agent and its counsel:
(a) The Borrower shall have delivered any fees and expenses payable to the Administrative Agent Agent, the Notice of Borrowing along Lenders (including BNS and the other Arrangers) and their Affiliates pursuant to the Fee Letters or as otherwise previously agreed with the Pay Proceeds Letter.
(b) The Borrower Intermet), shall have delivered to been paid in full, and the Administrative Agent a certificate of a Responsible Officer of the Borrower, certifying that, as of the Closing Date, all of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).
(c) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory in all respects to the Administrative Agent:
(ia) A Note the duly executed by the Borrower for each Lendercounterparts of this Agreement;
(iib) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by Term Notes evidencing the Borrower and filed with the STB and the Registrar General of Canada and together with evidence of such filingsCommitments;
(iiic) A certified copy the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of Exhibit F attached hereto and appropriately completed:
(e) certificates of the Borrower’s certificate Secretary or Assistant Secretary of formation each of the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) attaching and limited liability company agreement, certifying copies of the resolutions of the members or manager(s)boards of directors (or, as applicablein the case of any Foreign Subsidiary, the comparable governing body of such entity) of the Borrower Credit Parties, authorizing Borrower’s execution and as applicable the execution, delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect to the Loan Credit Documents;
(ivf) A certificate certificates of the Borrower Secretary or an Assistant Secretary of each of the Credit Parties (or, in the case of any Foreign Subsidiary, a comparable company officer) certifying (i) the names name, title and true signatures signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(g) certified copies of the person certificate or persons authorized to execute and deliver on behalf articles of incorporation of each Credit Party (or comparable organizational document) 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 (or comparable office or registry for each Foreign Subsidiary) of the Borrower jurisdiction of incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law (including, without limitation, the Loan Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended) or by any material Contractual Obligation of the Credit Parties, in connection with the Target Acquisition or the execution, delivery, performance, validity and enforceability of the Credit Documents to which it is a party and the other documents to be executed and delivered by it hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired without any requests for additional information;
(vi) A an internally prepared draft of Intermet's consolidated financial statements for the fiscal period ending September 30, 1999, certified by the chief financial officer of Intermet;
(j) [reserved];
(k) certificates, reports and other information as the Administrative Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders 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, Foreign Plans, and other compensation and employee benefit plans;
(l) certificates, reports, environmental audits and investigations, and other information as the Administrative Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders 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;
(m) certificates, reports and other information as the Administrative Agent may reasonably request from any Consolidated Company in order to satisfy the Lenders 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;
(n) a summary, set forth in format and detail reasonably acceptable to the Administrative Agent, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(i) the favorable opinion of each of ▇▇Dick▇▇▇▇▇ and ▇▇▇g▇▇ ▇▇▇ LLP▇C, special New York counsel to the BorrowerCredit Parties, substantially in the form of ▇▇▇▇▇▇ & ▇▇▇▇▇▇Exhibit G-1, special STB counsel addressed to the BorrowerAdministrative Agent and each of the Lenders, and (ii) the favorable opinion of ▇▇Kilp▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP▇▇▇, special Canadian Georgia counsel to the Borrower;
(vi) Confirmation that the Uniform Commercial Code Financing Statements naming the Administrative Agent (as the Secured Party under the Security Agreement and the Pledge Agreement) as secured party in the States of CaliforniaCredit Parties, Delaware, Florida and Illinois have been filed in the proper recording office in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 of the Security Agreement;
(viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, substantially in the form of Exhibit F heretoG-2, from addressed to the Borrower, Administrative Agent and each of the PLM Growth FundsLenders and (iii) the favorable opinion of Maye▇, and each other Person listed as “lessor” on Schedule C ▇▇ow▇ & ▇lat▇, ▇▇ecial New York counsel to the Security Agreement appointing Administrative Agent, substantially in the form of Exhibit G-3, addressed to the Administrative Agent its attorney-in-fact authorized and each of the Lenders;
(p) 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 execute the Required Lenders;
(q) copies of each of the Target Acquisition Documents fully executed by the parties thereto and deliver of all material instruments, agreements and other documents required to be delivered or furnished thereunder or in connection therewith (including, in the Notices case of Assignment with respect opinions of counsel to Intermet, if any, reliance letters expressly permitting the Administrative Agent and the Lenders to rely thereon as if such opinions had been addressed thereto), in each Equipment Lease in accordance with case certified by an Executive Officer of Intermet, and, except as expressly permitted by the Administrative Agent and the Required Lenders, none of the terms of the Security AgreementTarget Acquisition (including any condition precedent to Intermet's performance thereof or obligation to consummate the Target Acquisition) shall have been amended, waived or otherwise modified in any respect;
(xr) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to such Equipment Lessees).
(f) On the Closing Date and evidence that, after giving effect to the making Loans to be made hereunder on the Closing Date and the application thereof by Intermet, the Target Acquisition shall have been or shall be duly consummated in accordance with the Target Acquisition Documents for an amount not to exceed $285,000,000 (including payment of the Loanspurchase price for the Targets, payment in full and termination of the following statements shall be true on Target Existing Indebtedness and as payment of such date all related fees and expenses in connection with either of the foregoing) without amendment, waiver or other modification thereof unless the Administrative Agent and the Required Lenders shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:expressly consented thereto in writing;
(is) The representations and warranties of such Loan Party contained in evidence that each of the Loan Documents to which it is a party are true Five-Year Credit Agreement and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties 364-Day Credit Agreement shall have been true amended to provide that the "Applicable Margin" (as defined therein) shall be no less than 2.00%, the "Base Rate Margin" (as defined therein) shall be no less than 1.00%, and accurate the "Applicable Commitment Fee Percentage" (as defined therein) shall be no less than 0.375% under the Five-Year Credit Agreement or 0.350% under the 364-Day Credit Agreement, in each case for the first six months following the Closing Date;
(t) evidence that each Target and Intermet Holding Company, a Delaware corporation, shall have executed and delivered counterparts to the "Guaranty Agreement" under each of such earlier date)the Five-Year Credit Agreement and the 364-Day Credit Agreement, together with the other documents required by Section 6.10 thereof; and
(iiu) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement evidence that Intermet shall have complied in all respects with Section 7.03 of the Loans.
(g) The Borrower shall have paid to Five-Year Credit Agreement and the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans364-Day Credit Agreement, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest including, without limitation, in the Borrower to the Secured Party case of subsection (c)(ii) thereof, all back-up information and shall have taken any other action required pursuant to the Pledge Agreementassumptions made in connection therewith.
Appears in 1 contract
Sources: Term Loan Agreement (Intermet Corp)
Conditions Precedent to Loans. The obligation of each of the Lenders Lender to make its Loan shall be the Loans is subject to fulfillment of the following conditions condition precedent on or prior to that the Closing Date Lender shall have received, in form and substance satisfactory to the Administrative Agent Lender and its counsel, the following:
(a) The Borrower shall have delivered to this Agreement, the Administrative Agent Notes, the Notice of Borrowing along with Security Documents and the Pay Proceeds Letter.other Loan Documents, duly executed by the Borrower;
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower, certifying that, as Borrower with respect to resolutions of the Closing DateBoard of Directors (or equivalent governing body) authorizing the execution and delivery of this Agreement, the Notes, the Security Documents and the other Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).such officers;
(c) The Administrative Agent shall have received on the certificate of incorporation, articles of organization, or before other substantially similar formative documents of the Closing Date Borrower and all amendments and supplements thereto, filed in the followingoffice of the Secretary of State of New York, each dated certified by said Secretary of State as being a true and correct copy thereof (receipt of which is acknowledged by Lender);
(d) the Closing Datebylaws, in form operating agreement, or other substantially similar governance document of the Borrower and substance reasonably satisfactory all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary (or equivalent officer) as being a true and correct copy thereof (receipt of which is acknowledged by Lender);
(e) a certificate of the Secretary of State of New York, as to the Administrative Agent:Borrower’s legal existence and good standing in such state and listing all documents on file in the office of said Secretary of State and a certificate of the Secretary of State of each of Massachusetts and Minnesota with respect to the qualification and good standing of Borrower as a foreign corporation in such state (receipt of which is acknowledged by Lender);
(f) documentary evidence acceptable to Lender as to the tax good standing of Borrower as a corporation in New York and as a foreign corporation in each of Massachusetts and Minnesota (receipt of which is acknowledged by Lender);
(g) opinions of counsel addressed to Lender from counsel to the Borrower, substantially in the form of Exhibit F hereto;
(h) appraisals of the Collateral (receipt of which is acknowledged by Lender);
(i) A Note duly executed documentary evidence of compliance by the Borrower for each Collateral with all zoning, environmental and other applicable laws, such evidence shall include, without limitation, a recent environmental audit of the property encumbered by the Real Property Security Instruments (receipt of which is acknowledged by Lender);
(iij) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with documentary evidence of such filings;
(iii) A certified copy of the Borrower’s certificate of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect insurance coverage required pursuant to the Loan Documents;
(ivk) A certificate of the Borrower certifying the names and true signatures of the person or persons authorized to execute and deliver on behalf of the Borrower the Loan Documents to which it is a party and the other documents to be delivered lien searches deemed appropriate by it hereunderLender’s counsel;
(vl) A favorable opinion proforma title policies insuring the liens of each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special New York counsel the Real Property Security Instruments together with escrow instructions binding the title insurer to the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special STB counsel issue a title insurance policy in such form (Lender to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrowerbe responsible for all title insurance premiums);
(vim) Confirmation that surveys of the Uniform Commercial Code Financing Statements naming property encumbered by the Administrative Agent Real Property Security Instruments (receipt of which is acknowledged by Lender);
(n) such other documents, and completion of such other matters, as counsel for the Secured Party under the Security Agreement and the Pledge AgreementLender may reasonably deem necessary or appropriate;
(o) as secured party in the States payment of California, Delaware, Florida and Illinois have been filed in the proper recording office all expenses incurred by Lender in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 closing of the Security Agreement;
Loans (viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C $30,000.00 deposit heretofore made by Borrower to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower Lender shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to be applied towards such Equipment Lesseesexpenses).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties shall have been true and accurate as of such earlier date); and
(ii) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement of the Loans.
(g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 1 contract
Conditions Precedent to Loans. The obligation of each of the Lenders Lender to make its Loan shall be the Loans is subject to fulfillment of the following conditions condition precedent on or prior to that the Closing Date Lender shall have received, in form and substance satisfactory to the Administrative Agent Lender and its counsel, the following:
(a) The Borrower shall have delivered to this Agreement, the Administrative Agent Notes, the Notice of Borrowing along with Security Documents and the Pay Proceeds Letter.other Loan Documents, duly executed by the Borrower;
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower, certifying that, as Borrower with respect to resolutions of the Closing DateBoard of Directors (or equivalent governing body) authorizing the execution and delivery of this Agreement, the Notes, the Security Documents and the other Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).such officers;
(c) The Administrative Agent shall have received on the certificate of incorporation, articles of organization, or before other substantially similar formative documents of the Closing Date Borrower and all amendments and supplements thereto, filed in the followingoffice of the Secretary of State of New York, each dated certified by said Secretary of State as being a true and correct copy thereof (receipt of which is acknowledged by Lender);
(d) the Closing Datebylaws, in form operating agreement, or other substantially similar governance document of the Borrower and substance reasonably satisfactory all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary (or equivalent officer) as being a true and correct copy thereof (receipt of which is acknowledged by Lender);
(e) a certificate of the Secretary of State of New York, as to the Administrative Agent:Borrower’s legal existence and good standing in such state and listing all documents on file in the office of said Secretary of State and a certificate of the Secretary of State of each of Massachusetts and Minnesota with respect to the qualification and good standing of Borrower as a foreign corporation in such state (receipt of which is acknowledged by Lender);
(f) documentary evidence acceptable to Lender as to the tax good standing of Borrower as a corporation in New York and as a foreign corporation in each of Massachusetts and Minnesota (receipt of which is acknowledged by Lender);
(g) opinions of counsel addressed to Lender from counsel to the Borrower, substantially in the form of Exhibit F hereto;
(h) intentionally deleted;
(i) A Note duly executed documentary evidence of compliance by the Borrower for each Collateral with all zoning, environmental and other applicable laws, such evidence shall include, without limitation, a recent environmental audit of the property encumbered by the Real Property Security Instruments (receipt of which is acknowledged by Lender);
(iij) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with documentary evidence of such filings;
(iii) A certified copy of the Borrower’s certificate of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect insurance coverage required pursuant to the Loan Documents;
(ivk) A certificate of the Borrower certifying the names and true signatures of the person or persons authorized to execute and deliver on behalf of the Borrower the Loan Documents to which it is a party and the other documents to be delivered lien searches deemed appropriate by it hereunderLender’s counsel;
(vl) A favorable opinion of each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special New York counsel to the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special STB counsel to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrowerintentionally deleted;
(vim) Confirmation that surveys of the Uniform Commercial Code Financing Statements naming property encumbered by the Administrative Agent Real Property Security Instruments (receipt of which is acknowledged by Lender);
(n) such other documents, and completion of such other matters, as counsel for the Secured Party under the Security Agreement and the Pledge AgreementLender may reasonably deem necessary or appropriate;
(o) as secured party in the States payment of California, Delaware, Florida and Illinois have been filed in the proper recording office all expenses incurred by Lender in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 closing of the Security Agreement;
Loans (viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C $25,000.00 deposit heretofore made by Borrower to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower Lender shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to be applied towards such Equipment Lesseesexpenses).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties shall have been true and accurate as of such earlier date); and
(ii) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement of the Loans.
(g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 1 contract
Conditions Precedent to Loans. The obligation of each of the Lenders to make its Loan shall be subject to fulfillment of the following conditions precedent on or prior to the Closing Date in form and substance satisfactory to the Administrative Agent and its counsel:
(a) The Borrower shall have delivered to the Administrative Agent the Notice of Borrowing along with the Pay Proceeds Letter.
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower, certifying that, as of the Closing Date, all of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).
(c) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A Note duly executed by the Borrower for each Lender;
(ii) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with evidence of such filings;
(iii) A certified copy of the Borrower’s certificate of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect to the Loan Documents;
(iv) A certificate of the Borrower certifying the names and true signatures of the person or persons authorized to execute and deliver on behalf of the Borrower the Loan Documents to which it is a party and the other documents to be delivered by it hereunder;
(v) A favorable opinion of each of ▇C▇▇▇▇▇▇ and ▇C▇▇▇▇▇ LLP, special New York counsel to the Borrower, of ▇A▇▇▇▇▇ & ▇A▇▇▇▇▇, special STB counsel to the Borrower, and of ▇M▇▇▇▇▇▇▇ ▇T▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrower;
(vi) Confirmation that the Uniform Commercial Code Financing Statements naming the Administrative Agent (as the Secured Party under the Security Agreement and the Pledge Agreement) as secured party in the States of California, Delaware, Florida and Illinois have been filed in the proper recording office in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 of the Security Agreement;
(viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to such Equipment Lessees).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties shall have been true and accurate as of such earlier date); and
(ii) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement of the Loans.
(g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 1 contract
Conditions Precedent to Loans. The obligation of each of the Lenders Lender to make its Loan shall be Loans hereunder is subject to fulfillment satisfaction of the following conditions precedent on precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or prior to telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and its counsel:
(a) The Borrower shall have delivered to the Administrative Agent the Notice of Borrowing along with the Pay Proceeds Letter.
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer each of the Borrower, certifying that, as of the Closing Date, all of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).
(c) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Administrative AgentLenders:
(i) A Note duly executed by counterparts of this Agreement, sufficient in number for distribution to the Borrower for Administrative Agent, each LenderLender and the Borrower;
(ii) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly a Note executed by the Borrower and filed with the STB and the Registrar General in favor of Canada and together with evidence of such filingseach Lender requesting a Note;
(iii) A certified copy such certificates of the Borrower’s certificate resolutions or other action, incumbency certificates and/or other certificates of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, Responsible Officers of the Borrower authorizing Borrower’s execution as the Administrative Agent may require evidencing the identity, authority and delivery of, capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and performance under, this Agreement, each of the other Loan Documents to which it the Borrower is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect to the Loan Documentsparty;
(iv) A certificate of such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower certifying the names is duly organized or formed, and true signatures of the person or persons authorized to execute and deliver on behalf of that the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the Loan Documents conduct of its business requires such qualification, except to which it is the extent that failure to do so could not reasonably be expected to have a party and the other documents to be delivered by it hereunderMaterial Adverse Effect;
(v) A a favorable opinion of each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special New York counsel to the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special STB counsel to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel addressed to the Borrower;
(vi) Confirmation that the Uniform Commercial Code Financing Statements naming the Administrative Agent (and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower and the Loan Documents as the Secured Party under the Security Agreement and the Pledge Agreement) as secured party in the States of California, Delaware, Florida and Illinois have been filed in the proper recording office in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 of the Security Agreement;
(viii) Such other approvals, opinions, documents or filings as the Administrative Agent Required Lenders may reasonably request;
(ixvi) Receipt a certificate of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each a Responsible Officer of the PLM Growth FundsBorrower either (A) attaching copies of all consents, licenses and each other Person listed as “lessor” on Schedule C to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease approvals required in accordance connection with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed execution, delivery and performance by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by validity against the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to such Equipment Lessees).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in clauses (d) and (e) below have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) that the pro forma financial statements delivered pursuant to Section 4.01(a)(ix) were prepared in good faith based upon reasonable assumptions and (D) the current Debt Ratings;
(viii) a duly completed Compliance Certificate as of February 14, 2006 signed by a Responsible Officer of the Borrower;
(ix) pro forma financial statements and covenant compliance projesctions in form and substance reasonably acceptable to the Administrative Agent; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and accurate with the same effect as if made correct on and as of such date (the Closing Date, except to the extent of the that such representations and warranties which relate specifically refer to an earlier date, in which case such representations and warranties they shall have been be true and accurate correct as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b); and, respectively, of Section 6.01.
(iie) No Event of Default shall exist, or Default has occurred and is continuing would result from such proposed Loans or will exist upon from the disbursement application of the Loansproceeds thereof.
(f) The Administrative Agent shall have received a Loan Notice in accordance with the requirements hereof.
(g) The completion of all due diligence with respect to the Borrower shall have paid and its Subsidiaries, such due diligence to be satisfactory to the Administrative Agent Agent, the fees Arrangers and the Lenders. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 1.11 4.01, each Lender that are payable on the Closing Date.
(h) After giving effect has signed this Agreement shall be deemed to the disbursement of the Loanshave consented to, the LTV Ratio shall not exceed 0.75 approved or accepted or to 1.0.
be satisfied with, (i) Each Pledgor this Agreement and each other document to which it is a party or which it has reviewed or (ii) any other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower received notice from such Lender prior to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Health Care Property Investors Inc)
Conditions Precedent to Loans. The obligation of each of (a) Documents Required Prior to Initial Availability. In no event will the Lenders Lender consider requests for discretionary Loans prior to make its Loan shall be subject to fulfillment receipt of the following conditions precedent on or prior to the Closing Date documents in form and substance satisfactory to the Administrative Agent Lender: (i) this Agreement, duly executed by each of the Borrower and its counsel:
the Lender; (aii) The Borrower shall have delivered to the Administrative Agent the Notice of Borrowing along with the Pay Proceeds Letter.
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower, certifying that, as certified by a secretary of the Closing Date, all of the railcars constituting the Equipment are free of all Liens Borrower including: (except for Permitted Liens).
(cA) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent:
(i) A Note duly executed by the Borrower for each Lender;
(ii) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with evidence of such filings;
(iii) A certified copy of the Borrower’s a certificate of formation and limited liability company agreementformation, resolutions of the members organization or manager(s)incorporation, as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each certified by the relevant authority of the other Loan Documents jurisdiction of organization of the Borrower; (B) by-laws, operating agreements and partnership agreements, as applicable, for the Borrower as in effect on the date on which the resolutions referred to below were adopted; (C) original or certified copies of the resolutions of the governing body for the Borrower approving the transaction and each Transaction Document to which it is or is to be a party party, and of all documents evidencing other necessary company corporate action and governmental approvals, if any, with respect to the Loan Transaction Documents;
; (ivD) A a certificate of the secretary or an assistant secretary of the Borrower certifying the names and true signatures of the person officers, directors or persons authorized to execute and deliver on behalf other duly appointed employees of the Borrower the Loan Documents authorized to sign each Transaction Document to which it is or is to be a party and the other documents to be delivered by it hereunder;
hereunder and thereunder; and (E) a good standing certificate for the Borrower from its jurisdiction of organization; (iii) evidence of the payment in full of all accrued and unpaid fees and all reasonable costs and expenses due; (iv) a legal opinion, dated as of the date hereof, from in-house general counsel to the Borrower covering, inter alia, capacity, authority and enforceability in form and substance satisfactory to the Lender; and (v) A favorable opinion of each of ▇▇▇▇▇▇▇ the following: (A) the documentation and ▇▇▇▇▇▇ LLP, special New York counsel to other information so requested by the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special STB counsel to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrower;
(vi) Confirmation that the Uniform Commercial Code Financing Statements naming the Administrative Agent (as the Secured Party under the Security Agreement and the Pledge Agreement) as secured party in the States of California, Delaware, Florida and Illinois have been filed in the proper recording office Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Collateral;
PATRIOT Act; and (viiB) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 of the Security Agreement;
(viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to such Equipment Lessees).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of qualifying as a “legal entity customer” under the representations and warranties which relate to an earlier dateBeneficial Ownership Regulation, in which case such representations and warranties shall have been true and accurate as of such earlier date); and
(ii) No Event of Default or Default has occurred and is continuing or will exist upon if requested by the disbursement of the LoansLender, a Beneficial Ownership Certification.
(g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 1 contract
Sources: Uncommitted Money Market Line Credit Agreement (Jones Lang Lasalle Inc)
Conditions Precedent to Loans. The obligation of each of the Lenders Lender to make its Loan shall be the Loans is subject to fulfillment of the following conditions condition precedent on or prior to that the Closing Date Lender shall have received, in form and substance satisfactory to the Administrative Agent Lender and its counsel, the following:
(a) The Borrower shall have delivered to this Agreement, the Administrative Agent Notes, the Notice of Borrowing along with Security Documents and the Pay Proceeds Letter.other Loan Documents, duly executed by the Borrower;
(b) The Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer the Secretary or an Assistant Secretary (or equivalent officer) of the Borrower, certifying that, as Borrower with respect to resolutions of the Closing DateBoard of Directors (or equivalent governing body) authorizing the execution and delivery of this Agreement, the Notes, the Security Documents and the other Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of the railcars constituting the Equipment are free of all Liens (except for Permitted Liens).such officers;
(c) The Administrative Agent shall have received on the certificate of incorporation, articles of organization, or before other substantially similar formative documents of the Closing Date Borrower and all amendments and supplements thereto, filed in the followingoffice of the Secretary of State of New York, each dated certified by said Secretary of State as being a true and correct copy thereof;
(d) the Closing Datebylaws, in form operating agreement, or other substantially similar governance document of the Borrower and substance reasonably satisfactory all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary (or equivalent officer) as being a true and correct copy thereof;
(e) a certificate of the Secretary of State of New York, as to the Administrative Agent:Borrower’s legal existence and good standing in such state and listing all documents on file in the office of said Secretary of State and a certificate of the Secretary of State of each of Massachusetts and Minnesota with respect to the qualification and good standing of Borrower as a foreign corporation in such state;
(f) documentary evidence acceptable to Lender as to the tax good standing of Borrower as a corporation in New York and as a foreign corporation in each of Massachusetts and Minnesota;
(g) opinions of counsel addressed to Lender from counsel to the Borrower, substantially in the form of Exhibit F hereto;
(h) appraisals of the Collateral;
(i) A Note duly executed documentary evidence of compliance by the Borrower for each LenderCollateral with all zoning, environmental and other applicable laws, such evidence shall include, without limitation, a recent environmental audit of the property encumbered by the Real Property Security Instruments;
(iij) The Security Agreement (or memorandum thereof in form and substance satisfactory to the parties hereto) duly executed by the Borrower and filed with the STB and the Registrar General of Canada and together with documentary evidence of such filings;
(iii) A certified copy of the Borrower’s certificate of formation and limited liability company agreement, resolutions of the members or manager(s), as applicable, of the Borrower authorizing Borrower’s execution and delivery of, and performance under, this Agreement, each of the other Loan Documents to which it is a party and all documents evidencing other necessary company action and governmental approvals, if any, with respect insurance coverage required pursuant to the Loan Documents;
(ivk) A certificate of the Borrower certifying the names and true signatures of the person or persons authorized to execute and deliver on behalf of the Borrower the Loan Documents to which it is a party and the other documents to be delivered lien searches deemed appropriate by it hereunderLender’s counsel;
(vl) A favorable opinion proforma title policies insuring the liens of each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special New York counsel the Real Property Security Instruments together with escrow instructions binding the title insurer to the Borrower, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special STB counsel to the Borrower, and of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Borrowerissue a title insurance policy in such form;
(vim) Confirmation that surveys of the Uniform Commercial Code Financing Statements naming property encumbered by the Administrative Agent Real Property Security Instruments;
(n) such other documents, and completion of such other matters, as counsel for the Secured Party under Lender may deem necessary or appropriate;
(o) payment of an administrative fee equal to one percent (1.00%) of the Security Agreement and aggregate principal amount of the Pledge AgreementLoans; and
(p) as secured party in the States payment of California, Delaware, Florida and Illinois have been filed in the proper recording office all expenses incurred by Lender in connection with the Collateral;
(vii) Certificates as to insurance naming the Administrative Agent as additional insured and sole loss payee, all of which satisfy the requirement of Section 3.02 closing of the Security Agreement;
Loans (viii) Such other approvals, opinions, documents or filings as the Administrative Agent may reasonably request;
(ix) Receipt of an irrevocable power of attorney, in the form of Exhibit F hereto, from the Borrower, each of the PLM Growth Funds, and each other Person listed as “lessor” on Schedule C $100,000.00 deposit heretofore made by Borrower to the Security Agreement appointing the Administrative Agent its attorney-in-fact authorized to execute and deliver the Notices of Assignment with respect to each Equipment Lease in accordance with the terms of the Security Agreement;
(x) Evidence that the PLM Growth Funds have delivered to the Borrower duly executed Bills of Sale for each Item of Equipment;
(xi) A certified copy of the Escrow Agreement duly executed by the Borrower and the other parties thereto;
(xii) The Initial Appraisal;
(xiii) [Intentionally Omitted]
(xiv) The Assignments duly executed by the Borrower and each of the PLM Growth Funds;
(xv) The Management Agreement duly executed by the Borrower and PLM; and
(xvi) Each of the other Loan Documents duly executed by each of the parties thereto.
(d) The Borrower Lender shall have made a notation on each original executed Equipment Lease constituting Collateral clearly describing the Secured Party’s security interest therein.
(e) On the Closing Date the Borrower shall have delivered to the Administrative Agent a copy of each of the Equipment Leases for the ten (10) largest Equipment Lessees (as calculated using the Fair Market Value of the Equipment on lease to be applied towards such Equipment Lesseesexpenses).
(f) On the Closing Date and after giving effect to the making of the Loans, the following statements shall be true on and as of such date and the Administrative Agent shall have received certificates signed by a Responsible Officer of each Loan Party dated as of such date, stating that:
(i) The representations and warranties of such Loan Party contained in each of the Loan Documents to which it is a party are true and accurate with the same effect as if made on and as of such date (except to the extent of the representations and warranties which relate to an earlier date, in which case such representations and warranties shall have been true and accurate as of such earlier date); and
(ii) No Event of Default or Default has occurred and is continuing or will exist upon the disbursement of the Loans.
(g) The Borrower shall have paid to the Administrative Agent the fees specified in Section 1.11 that are payable on the Closing Date.
(h) After giving effect to the disbursement of the Loans, the LTV Ratio shall not exceed 0.75 to 1.0.
(i) Each Pledgor shall have delivered the certificates representing or evidencing the LLC Membership Interest in the Borrower to the Secured Party and shall have taken any other action required pursuant to the Pledge Agreement.
Appears in 1 contract