Borrower Representations. The Borrower represents, warrants and agrees as follows: (a) the Borrower has been duly organized, validly exists and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents; (b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents; (c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the Borrower; (d) there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents; (e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances; (f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents; (g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower; (h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received; (i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower; (j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs; (k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference; (l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof; (m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment; (n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.; (o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto; (p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds: i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement; ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement; (q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows: i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan; ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”); iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower; (r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240); (s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and (t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Loan Agreement (Nedak Ethanol, LLC)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as followsto the Lender that:
(a) The Persons executing the Fourth Amendment on behalf of the Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has been not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly organizedformed, validly exists existing and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the BorrowerTexas;
(d) there is no actionThe execution, suitdelivery and performance by the Borrower of the Fourth Amendment and other Loan Documents as amended as of the date hereof, proceedinghave been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Fourth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or after the date hereof, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the Inventory Loan or the Supplemental Loan, or compliance with the terms of the Loan Agreement, the Loan Documents, the Receivables Loan Agreement, the Textron Documents, the Bond Holder Exchange Documents, the Sovereign Documents or the DZ Documents. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Borrower’s knowledgeReal Estate Collateral and the Ineligible Note Portfolio, any inquiry in favor of Textron and Sovereign.
(f) Except as disclosed on SCHEDULE 23(f) hereto, there are no actions, suits, proceedings, orders or investigation at law or in equity or before or by any public board or body injunctions pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or its property or, to Borrower’s knowledgegovernmental authority alleging that Borrower has violated any applicable timeshare act, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract rules or the Loan Documents regulations thereunder, or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;any other applicable laws.
(g) Since the Loan Documents have been duly executed and delivered by proper officers date of the Borrower. Each of Inventory Loan and the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents Receivables Loan, except as otherwise disclosed by the Borrower and to Lender in writing, since September 30, 2001, there has occurred no materially adverse change in the performance by financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its obligations thereunder do subsidiaries as of September 30, 2001, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not and will not violate had any materially adverse effect either individually or constitute a default under in the Amended and Restated Articles of Organization aggregate on the business or Amended and Restated Operating Agreement financial condition of the Borrower or any court orderof its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, and do not and will not violate 2001, there has occurred no materially adverse change in the financial condition or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which business of the Borrower is boundand its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of December 31, and no approval 2001, or other action by any governmental authority or agency is required in connection therewiththe consolidated statement of income as of such date, other than those which changes in the ordinary course of business that have been received;
(i) there is no action not had any materially adverse effect either individually or proceedings pending in the aggregate on the business or threatened looking toward the dissolution, liquidation or sale of substantially all financial condition of the assets Borrower or any of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costsits Subsidiaries. Since September 30, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due2001, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facilitynot made any Distribution.
Appears in 1 contract
Samples: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as followsto the Lender that:
(a) The Persons executing the Third Amendment on behalf of the Borrower have full authority to execute the Third Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Third Amendment and the performance thereunder by Borrower has been not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly organizedformed, validly exists existing and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the BorrowerTexas;
(d) there is no actionThe execution, suitdelivery and performance by the Borrower of the Third Amendment and other Loan Documents as amended as of the date hereof, proceedinghave been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Third Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or after the date hereof, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the Third Amendment or the Fifth Amendment to Second Amended and Restated Inventory Loan Agreement and Modification of Notes, or compliance with the terms of the Loan Agreement, the Loan Documents or the Inventory Loan or Supplemental Loan. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Borrower’s knowledgeReal Estate Collateral and the Ineligible Note Portfolio, any inquiry in favor of Textron and Sovereign.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or investigation at law or in equity or before or by any public board or body injunctions pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or its property or, to Borrower’s knowledgegovernmental authority alleging that Borrower has violated any applicable timeshare act, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract rules or the Loan Documents regulations thereunder, or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;any other applicable laws.
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents Except as otherwise disclosed by the Borrower and to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the performance by financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its obligations thereunder do subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not and will not violate had any materially adverse effect either individually or constitute a default under in the Amended and Restated Articles of Organization aggregate on the business or Amended and Restated Operating Agreement financial condition of the Borrower or any court orderof its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, 2002, and do not and will not violate except for the Allowance Increase, there has occurred no materially adverse change in the financial condition or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which business of the Borrower is boundand its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of December 31, and no approval 2002, or other action by any governmental authority or agency is required in connection therewiththe consolidated statement of income as of such date, other than those which changes in the ordinary course of business that have been received;
(i) there is no action not had any materially adverse effect either individually or proceedings pending in the aggregate on the business or threatened looking toward the dissolution, liquidation or sale of substantially all financial condition of the assets Borrower or any of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costsits Subsidiaries. Since September 30, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due2003, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facilitynot made any Distribution.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as followsto the Lender that:
(a) The Persons executing the Fourth Amendment on behalf of the Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has been not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly organizedformed, validly exists existing and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the BorrowerTexas;
(d) there is no actionThe execution, suitdelivery and performance by the Borrower of the Fourth Amendment and other Loan Documents as amended as of the date hereof, proceedinghave been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Fourth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or after the date hereof, a party to any contract or agreement which prohibits Borrower's execution of the Fourth Amendment or the Sixth Amendment to Second Amended and Restated Inventory Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Inventory Loan or Supplemental Loan. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the Borrower’s knowledgefuture (upon the happening of a contingency or otherwise) any of the Collateral, any inquiry whether now owned or investigation at law hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or in equity or before or by any public board or body injunctions pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or its property or, to Borrower’s knowledgegovernmental authority alleging that Borrower has violated any applicable timeshare act, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract rules or the Loan Documents regulations thereunder, or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;any other applicable laws.
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents Except as otherwise disclosed by the Borrower and to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the performance by financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its obligations thereunder do subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not and will not violate had any materially adverse effect either individually or constitute a default under in the Amended and Restated Articles of Organization aggregate on the business or Amended and Restated Operating Agreement financial condition of the Borrower or any court orderof its subsidiaries. Since September 30, and do not and will not violate or constitute a default under any agreement2003, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by has not made any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seqDistribution.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as follows:
to Lender that: (a) on the Borrower has been duly organizedModification Closing Date (i.e., validly exists and is in good standing as a limited liability company under the laws after giving effect to this Amendment), (i) no Event of the State of Nebraska, is duly qualified to do business in NebraskaDefault will exist, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(bii) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the Borrower;
(d) there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against other than any Defaults that may arise from matters disclosed in letters received in connection with the Approved Franchise Agreements for the Mortgaged Properties set forth in paragraph A of Schedule 1.3 attached hereto (copies of which have been or affecting shall be delivered to Lender), no Default will exist; (b) except as set forth on the original Exception Report and on Exhibit E attached hereto (which Exception Report shall be deemed to include the information set forth on Exhibit E attached hereto), and as otherwise specifically disclosed in this Amendment, all representations and warranties of Borrower contained in the Loan Agreement or its property orin any of the other Loan Documents (as the Loan Documents and such other Loan Documents are amended hereby) are true and correct as of the date hereof in all material respects, except (i) to the extent such representations and warranties expressly relate to an earlier date (other than the Closing Date), such representations and warranties shall be reaffirmed as of such earlier date, and (ii) to the extent that any of such representations or warranties by their terms are limited to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident such reaffirmation shall also be limited to Borrower’s knowledge; (c) there have been no changes to the execution and delivery organizational or governing documents of the Redevelopment Contract Borrower or any other party (other than Lender) to the Loan Documents other than any such changes that have been previously disclosed to Lender; (d) Borrower and each other party executing this Amendment or the validity or enforceability of the Redevelopment Contract or the any other Loan Documents pursuant to this Amendment have obtained all required authorizations and approvals to enter into and perform their respective obligations under this Amendment and such other Loan Documents;
; (e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by Borrower has terminated all TRS Leases in accordance with Section 2.4 of the Permitted Encumbrances;
Original Loan Agreement, and no TRS Lessees hold any interest in the Collateral; (f) the Borrower has duly authorized, by agreements set forth in paragraph B of Schedule 1.3 attached hereto are all necessary company action, the execution, delivery and due performance of the currently effective Mezzanine A Loan Documents;
; and (g) the all Mezzanine Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to Mezzanine Loans B through G, inclusive, have been released pursuant to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as release agreements set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A paragraph C of Schedule 1.3 attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Third Omnibus Amendment to Loan Documents (Mortgage Loan) (W2007 Grace Acquisition I Inc)
Borrower Representations. The Each Borrower represents, hereby represents and warrants to the Administrative Agent and agrees the Lenders as follows:
(a) a. each of the representations and warranties of the Borrower has been duly organizedcontained or incorporated in the Loan Agreement, validly exists and is as amended by this Agreement (solely excluding the representations set forth in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery Section 7.11 of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions Agreement), or in any of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the other Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any is true and correct in all material adverse change in the business of the Borrower;
(d) there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution respects on and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created (x) that if any such representation or warranty was made as of a specific date, then the same shall have been true and correct in all material respects as of such specific date, and (y) for purposes of remaking the representations and warranties set forth in Section 6.1 of the Loan Agreement as of the date hereof, (1) reference should be made to (and such representations and warranties are qualified in their entirety by the Permitted Encumbrancesinformation contained in) the rent roll and accounts receivable report delivered by the Borrower to the Administrative Agent in connection with this Agreement and (2) exception is further taken for the default notice delivered to Laderach;
(f) b. as of the date hereof and immediately after giving effect to this Agreement and the actions contemplated hereby, to the knowledge of each Borrower, no Potential Default or Event of Default has occurred and is continuing;
c. each Borrower has duly authorized, by all necessary company actionlimited liability company, corporate, or limited partnership power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have this Agreement has been duly authorized by all necessary limited liability company, corporate, or limited partnership action on the part of such Borrower; and this Agreement has been duly and validly executed and delivered by proper officers each Borrower and constitutes the legal, valid and binding obligation of such Borrower, enforceable in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the Borrower. Each enforcement of creditors’ rights generally and (ii) the Loan Documents was executed application of general principles of equity (regardless of whether such enforceability is considered in substantially the form a proceeding in which approved by the Borrower;equity or at law); and
(h) d. the execution and delivery of this Agreement by each Borrower (i) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for such as have been obtained or made and are in full force and effect, (ii) will not violate the Loan Documents by the Borrower and the performance by the Borrower operating agreement or by-laws of its obligations thereunder do not and any Borrower, (iii) will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute result in a default under any agreementapplicable law or regulation, any order of any Governmental Authority, indenture, mortgage, lease agreement or other instrument binding upon any Borrower or any other obligation of its assets, or instrument give rise to which the Borrower is bound, and no approval or other action a right thereunder to require any payment to be made by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contractsuch Person, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect each case to the Project extent such violation or default would not reasonably be expected to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included result in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputesMaterial Adverse Effect, and (2iv) all statements in process but will not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount result in the amount creation or imposition of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest any Lien on the Loan due through December 1, 2008, pursuant to Section 9 any asset of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), any Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Omnibus Amendment to Loan Documents (Alexanders Inc)
Borrower Representations. The Borrower represents, warrants and agrees represents to Lender, as followsof the date hereof and as of the date of any Loan made hereunder, that:
(a) the Borrower has been is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized, validly exists organized and is existing and in good standing as a limited liability company under the laws of the State state of Nebraska, is duly its organization as set forth above and (ii) qualified or licensed to do business in Nebraskaall other states in which the laws require Borrower to be so qualified and/or licensed, and is duly qualified except if the failure to enter into the transactions contemplated by and necessary or incident do so would not reasonably be expected to the execution and delivery of the Loan Documents;have a Material Adverse Effect.
(b) attached hereto as Exhibit B are Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Resolutions Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the Borrower proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, (“i) conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof), (ii) breach any provision contained in Borrower’s Resolutions”organizational documents, or (iii) authorizing the transactions contemplated breach any material agreement, instrument or document to which Borrower is now or hereafter a party or by the Loan Documents;which it is or may become bound or give rise to or result in any default thereunder.
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower which would reasonably be expected to have a Material Adverse Effect. Borrower is not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order which has or would reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound.
(e) Borrower has all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it except for any which would not reasonably be expected to have a Material Adverse Effect. :
(f) The unaudited financial statements for the first quarter of 2007 and the audited financial statements for 2005 and 2006 delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly present the assets, liabilities and financial condition and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP (subject to the absence of footnotes and normal year end adjustments), and no event, condition or change that has had, or would reasonably be expected to have, a Material Adverse Effect has occurred since the date of the last delivery of financial information this Loan Agreement.
(g) As to the Lead Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, there free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender, which as of the date hereof are: (x) 200 Xxxxxxxx Xxx, Xxxxxxxxxx, XX 00000, (y) 2000 Xxxx Xxxxxxxx, Xxxxx Xxxxx, XX, and (z) 10000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxxxxx 00000; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower shall keep and maintain the Collateral in good operating condition and repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved in all material respects; and (v) Borrower shall not permit any of the Collateral to become a fixture to real estate or accession to other personal property.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is now perfected and has a first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed (subject to any applicable extensions), and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims would not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not been incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material adverse change fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in Borrower’s financial statements or sales projections are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the business of the Borrower;aggregate, would reasonably be expected to result in a Material Adverse Effect.
(dm) there is no action, suit, proceeding, Borrower has provided to Lender on or prior to the Borrower’s knowledgedate hereof a schedule that correctly identifies, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(fn) the (i) Borrower (A) has duly authorizedbeen and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, by all necessary company action, the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute whether from a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency otherwise, alleging that Borrower is required not in connection therewithsuch compliance, other than those and there are no past or present actions, activities, circumstances conditions, events or incidents that would reasonably be expected to prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or would reasonably be likely to have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which would reasonably be expected to result in any material Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any material Environmental Claim Borrower has or would reasonably be expected to have been received;retained or assumed either contractually or by operation of law.
(i) there Borrower is no action an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the Borrower;
assets of any employee benefit plan for purposes of the DOL Regulations [Under review] and (jii) Borrower certifies nor any subsidiary of Borrower complies in all material respects with any obligations to make contributions to any employee benefit plan that it has incurred Qualified Project Costsis subject to Title IV of the Employee Retirement Income Security Act of 1974, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached amended from time to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputestime, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 any successor statute (“Origination FeesERISA”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Borrower Representations. The Borrower representsBorrowers represent, warrants warrant and agrees as follows:
covenant to the Agent and the Lenders that (a) the Borrower has been duly organized, validly exists and is in good standing as a limited liability company under the laws outstanding principal balance of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery Senior Loans as of the Loan Documents;
date hereof is See Attached Schedule I [and outstanding accrued and unpaid interest on the Senior Loans as of the date hereof is See Attached Schedule I] (b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the Borrower;
(d) there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents are set forth in Exhibit A annexed hereto and made a part hereof, and have not been modified or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
amended except as may be set forth in Exhibit A; (ec) there are no valid material security interests other understandings or agreements relating to the Loans other than the Loan Documents; (d) the Loan Documents are and shall remain in or liens against full force and effect; (e) Borrowers are in default under the interest of the Borrower Loan Documents as set forth in the Redevelopment Project as of the date hereof, except those created Exhibit B annexed hereto and made a part hereof and there are no other defaults by the Permitted Encumbrances;
Borrowers under the Loan Documents; (f) the Borrower has duly authorized, by all necessary company action, Agent and the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each Lenders are not in default under any of the Loan Documents was executed and there are no offsets, counterclaims or defenses to the obligations of the Obligors, or the rights, remedies or powers of the Lenders, thereunder; (g) there are no defenses, set-offs or counterclaims to or with respect to the obligations of the Obligors under the Loan Documents and the Obligors agree not to interpose any defense, set-off or counterclaim in substantially the form in which approved any action brought by the Borrower;
Agent or the Lenders with respect thereto; (h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which Obligors have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale represented by counsel of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services their choice in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan this Agreement purchase, construction which it has executed freely and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers without coercion or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seqduress.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Pre Workout Agreement (Opticare Health Systems Inc)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as followsto the Lender that:
(a) The Persons executing the Sixth Amendment on behalf of the Borrower have full authority to execute the Sixth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Sixth Amendment and the performance thereunder by Borrower has been not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly organizedformed, validly exists existing and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the BorrowerTexas;
(d) there is no actionThe execution, suitdelivery and performance by the Borrower of the Sixth Amendment and other Loan Documents as amended as of the date hereof, proceedinghave been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Sixth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or after the date hereof, a party to any contract or agreement which prohibits Borrower's execution of the Sixth Amendment or the Fourth Amendment to Amended and Restated Receivables Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Receivables Loan Agreement. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the Borrower’s knowledgefuture (upon the happening of a contingency or otherwise) any of the Collateral, any inquiry whether now owned or investigation at law hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or in equity or before or by any public board or body injunctions pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or its property or, to Borrower’s knowledgegovernmental authority alleging that Borrower has violated any applicable timeshare act, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract rules or the Loan Documents regulations thereunder, or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;any other applicable laws.
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents Except as otherwise disclosed by the Borrower and to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the performance by financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its obligations thereunder do subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not and will not violate had any materially adverse effect either individually or constitute a default under in the Amended and Restated Articles of Organization aggregate on the business or Amended and Restated Operating Agreement financial condition of the Borrower or any court orderof its subsidiaries. Since September 30, and do not and will not violate or constitute a default under any agreement2003, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by has not made any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seqDistribution.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, hereby represents and warrants and agrees as followsto the Lender that:
(a) The Persons executing the Fifth Amendment on behalf of the Borrower have full authority to execute the Fifth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fifth Amendment and the performance thereunder by Borrower has been not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly organizedformed, validly exists existing and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“Borrower’s Resolutions”) authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the BorrowerTexas;
(d) there is no actionThe execution, suitdelivery and performance by the Borrower of the Fifth Amendment and other Loan Documents as amended as of the date hereof, proceedinghave been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Fifth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or after the date hereof, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the Fifth Amendment or the Third Amendment to Amended and Restated Receivables Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Receivables Loan Agreement. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Borrower’s knowledgeReal Estate Collateral and the Ineligible Note Portfolio, any inquiry in favor of Textron and Sovereign.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or investigation at law or in equity or before or by any public board or body injunctions pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or its property or, to Borrower’s knowledgegovernmental authority alleging that Borrower has violated any applicable timeshare act, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract rules or the Loan Documents regulations thereunder, or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;any other applicable laws.
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents Except as otherwise disclosed by the Borrower and to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the performance by financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its obligations thereunder do subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not and will not violate had any materially adverse effect either individually or constitute a default under in the Amended and Restated Articles of Organization aggregate on the business or Amended and Restated Operating Agreement financial condition of the Borrower or any court orderof its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, 2002, and do not and will not violate except for the Allowance Increase, there has occurred no materially adverse change in the financial condition or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which business of the Borrower is boundand its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of December 31, and no approval 2002, or other action by any governmental authority or agency is required in connection therewiththe consolidated statement of income as of such date, other than those which changes in the ordinary course of business that have been received;
(i) there is no action not had any materially adverse effect either individually or proceedings pending in the aggregate on the business or threatened looking toward the dissolution, liquidation or sale of substantially all financial condition of the assets Borrower or any of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costsits Subsidiaries. Since September 30, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due2003, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facilitynot made any Distribution.
Appears in 1 contract
Samples: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, warrants and represents to Lender as of the date hereof and as of the date of any Loan made hereunder, and agrees as followsand covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof), duly organized and existing and in good standing under the laws of the state of its organization as set forth above (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof) and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where failure to be so qualified and/or licensed has not had and could not reasonably be expected to have a Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement, the Warrants and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement, the Warrants and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder.
(c) This Loan Agreement and the Warrants are (and when executed and delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, other than actions or proceedings which have not had and could not reasonably be expected to have a Material Adverse Effect. Borrower is not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order which has had or could reasonably be expected to have a Material Adverse Effect, nor is Borrower in default in any material respect under any indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound.
(e) Borrower has been duly organized, validly exists and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it (except where the failure to have the same or to maintain the same in good standing has not had and could not reasonably be expected to have a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan DocumentsMaterial Adverse Effect);
(bf) attached hereto The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as Exhibit B are the Resolutions of the Borrower dates and for the periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently applied (“Borrower’s Resolutions”) authorizing except, in the transactions contemplated by case of interim financial statements, for normal year-end adjustments and the Loan Documents;
(c) absence of footnote disclosures), and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the Borrowerthis Loan Agreement;
(dg) there As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower shall keep and maintain the Collateral in good operating condition and repair (ordinary wear and tear excepted) and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved in all material respects; and (v) Borrower shall not permit any such material items to become a fixture to real estate or accession to other personal property without notifying Lender promptly thereof.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is no actionnow and at all times hereafter shall be perfected and have a first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, suitand Borrower, proceedingby written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All material income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other material assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable (other than those being contested in good faith by appropriate proceedings and for which Borrower maintains adequate reserves).
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s then current assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby (when taken as a whole) contains or will contain any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. Except as disclosed to Lender in writing prior to the Borrower’s knowledgedate hereof, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in facts known to Borrower that, individually or liens against the interest of the Borrower in the Redevelopment Project aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof, except those created by the Permitted Encumbrances;.
(fn) the (i) Borrower (A) has duly authorizedbeen and is in compliance in all material respects with all applicable Environmental Laws; (B) has not, by all necessary company action, the execution, delivery and due performance as of the date of this Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute Agreement, received any communication, whether from a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency otherwise, alleging that Borrower is required not in connection therewithsuch compliance, other than those and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no material Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for such Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any material Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for such Environmental Claim Borrower has or may have been received;retained or assumed either contractually or by operation of law.
(i) there Borrower is no action an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the Borrower;
assets of any employee benefit plan for purposes of the DOL Regulations and (jii) neither Borrower certifies nor any Subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that it has incurred Qualified Project Costsis subject to Title IV of the Employee Retirement Income Security Act of 1974, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached amended from time to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputestime, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 any successor statute (“Origination FeesERISA”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Borrower Representations. The Borrower represents, warrants and agrees as follows:
(a) the Borrower has been duly organized, validly exists and is in good standing as a limited liability company under the laws of the State of Nebraska, is duly qualified to do business in Nebraska, and is duly qualified to enter into the transactions contemplated by and necessary or incident to the execution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower (“"Borrower’s 's Resolutions”") authorizing the transactions contemplated by the Loan Documents;
(c) since the date of the last delivery of financial information to the Lead Lender, there has not been any material adverse change in the business of the Borrower;
(d) there is no action, suit, proceeding, or to the Borrower’s 's knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s 's knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s 's knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’', mechanics’', laborers or materialmen’s 's statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ ss.ss. 18-2101, et. seq.;
(o) unless previously provided to providxx xx Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“"Origination Fees”"), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Xxxxxxxxxxx Oppenheimer & Co. Inc. as its total payment for placement agent placemenx xxxxx services (“"Placement Agent Services Fee”");
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s 's Counsel ($50,000), Placement Agent’s 's Counsel ($50,000), Borrower’s 's Counsel ($30,000) and Lead Lender’s 's Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “"Miscellaneous Charges”"), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Samples: Loan Agreement (Nedak Ethanol, LLC)
