Conditions Precedent to Initial Loan. The obligation of Lender to make the initial Loan is subject to the condition precedent that Lender shall have received, in form and substance reasonably satisfactory to Lender, all of the following: (A) This Agreement duly executed by Borrower. (B) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. duly executed by Borrower. (C) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender duly executed by Borrower. (D) Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender with respect to the SVB Obligations and provide evidence of the full release of any and all liens related to the SVB Obligations. (E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower. (F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents. (G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents. (H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date. (I) The insurance coverage required by SECTION 6.9 of this Agreement. (J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents. (K) Payment of any unreimbursed Lender's Expenses. (L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
Appears in 1 contract
Samples: Loan and Security Agreement (Alnylam Pharmaceuticals Inc)
Conditions Precedent to Initial Loan. The obligation of Lender the Bank to make the initial Loan and all advances contemplated hereunder to the Borrower is subject to the condition precedent that Lender shall have receivedBank's receipt of the following, satisfactory in form and substance to it and its counsel:
(a) evidence of all Corporate ("Corporate") action by the Borrower consisting of certified (as of the date of this Agreement) copies of all Corporate action taken by the Borrower, including Certificate of Incorporation and all amendments thereto and Corporate resolutions authorizing the execution, delivery, and performance of the Loan Documents to which it is a party, and each other document to be delivered pursuant to this Agreement, in form and substance reasonably satisfactory to Lender, all of the following:Bank and its counsel; and
(Aa) This Agreement this Agreement, duly executed by the Borrower.;
(Bb) The Warrants to be issued to Lender and Lighthouse Capital Partners IVthe Note, L.P. duly executed by the Borrower.;
(Cc) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender a duly executed by Borrower.
Modified and Restated Revolving Credit Security Agreement of even date herewith (Dat times, the "Revolving Credit Security Agreement" or "Modified and Restated Revolving Credit Security Agreement" or "Security Agreement") Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender with respect to the SVB Obligations and provide evidence of the full release of any and all liens related to the SVB Obligations.
(E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by the Borrower granting to the Bank a first position security interest in all assets of the Borrower., except real property and other property already subject to purchase money financing lien(s), along with appertaining UCC-1 financing statements, and evidence of the Bank's priority of lien with respect thereto showing no other financing statements or other liens;
(Fd) Copies certificate of good standing with respect to Borrower;
(e) a duly executed Pledge Agreement of even date herewith (at times, the "Pledge Agreement") made by the Borrower in favor of the contracts Bank, granting to the Bank a security interest in and agreements referenced assignment and pledge of all monies, deposits, or other sums now or hereafter held by the Bank on deposit, in SECTION 5.14safekeeping, transit or otherwise, at any time credited by or due from Bank to the Borrower, or in which the Borrower shall have an interest; and
(f) documentation deemed sufficient by the Bank and any third party consents required by Borrower thereunder for its counsel, in their sole discretion, verifying the execution, delivery and performance continuation of the Loan Documents.collateral Assignment to the Bank of a portion of the proceeds of a life insurance policy issued on the life of Xxxxxxx X. Xxxxxxxxx, President and CEO of the Borrower, in the amount of Five Hundred Thousand and 00/100 ($500,000.00) Dollars which such policy was issued by Pruco Life Insurance Company of New Jersey (a Stock Company of the Prudential Insurance Company of America), under policy no.[intentionally omitted] (contract date October 14, 2006) and has a face value of Two Million and 00/100 ($2,000,000.00) Dollars; and
(Gg) An officerevidence there has been no pending or threatened litigation against the Borrower which would, in the Bank's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and judgment, have a material adverse effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and ability to perform the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.obligations hereunder; and
Appears in 1 contract
Conditions Precedent to Initial Loan. The Each Lender’s obligation of Lender to make the initial Loan is subject to the condition precedent that Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all of the following:
(A) This Agreement duly executed by Borrower.
(B) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. duly executed by Borrower.
(C) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender duly executed by Borrower.
(D) Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender with respect to the SVB Obligations and provide evidence of the full release of any and all liens related to the SVB Obligations.
(E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender Agent may reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed signatures to this Agreement;
(b) duly executed original signatures to each Warrant;
(c) duly executed signatures to the IP Security Agreement;
(d) duly executed signatures to a Subordination Agreement with respect to certain existing notes outstanding as of the Closing Date;
(e) duly executed signatures to each Seller Subordination Agreement;
(f) a subordination agreement, duly executed by Xxxxxxx Xxxxxxxxxx;
(g) for each Borrower, a certificate of such Borrower, duly executed by a Responsible Officer of such Borrower, certifying and attaching (i) the Operating Documents of such Borrower, (ii) resolutions duly approved by the Board of such Borrower, (iii) any resolutions, consent or waiver duly approved by the requisite holders of such Borrower’s Equity Interests, if applicable (or certifying that no such resolutions, consent or waiver is required), and (iv) a schedule of incumbency;
(h) a payoff letter with respect to Indebtedness outstanding as of the Closing Date to ORIX Growth Capital, LLC and MidCap Financial Trust, together with all documents reasonably required in connection with the payoff and release of security interests;
(i) a payoff letter and consent to early termination with respect to certain financed receivables and associated Contingent Obligations outstanding as of the Closing Date under the C6 Factoring Facility;
(j) the Perfection Certificate of Borrower Representative, together with the duly executed signature thereto;
(k) evidence satisfactory to Agent, that the insurance policies and endorsements required by Section 6.5 are in full force and effect;
(l) a legal opinion of counsel to Borrowers;
(m) projections for Parent’s fiscal year ending December 31, 2020;
(n) all documentation and other information that Agent or any Lender reasonably requires in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to include a duly executed copy of an IRS Form W-9 or other such applicable IRS Forms;
(o) a disbursement letter, duly executed by Borrower Representative;
(p) the Automatic Payment Authorization, duly executed by Borrower Representative;;
(q) payment of the closing fee and Secured Party Expenses then due as specified in Section 2.4(a);
(r) capitalization tables for Parent, including both a summary of Equity Interests outstanding, by class and series, as well as a detail showing holdings investor, with respect to each investment, the purchase price per share, the deemed original issue price (if different), and with respect to each convertible security, option, or warrant, the conversion price or exercise price, as applicable, and including detail by class and series as well as on an as-converted to common stock basis; and
(s) completion of such matters and delivery of such documents as Agent may reasonably require.
Appears in 1 contract
Conditions Precedent to Initial Loan. The obligation of Lender to make the initial an Initial Loan to a Collateral Pool Borrower is subject to Lender’s determination that each of the condition following conditions precedent that has been satisfied:
(a) Receipt by Lender shall have receivedof a fully executed Loan Request by such Collateral Pool Borrower;
(b) The Coverage and LTV Tests for such Collateral Pool are satisfied;
(c) If the Initial Loan is a Variable Loan to such Collateral Pool Borrower, receipt by Lender at least three (3) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Hedge commitment, in accordance with the Hedge Security Agreement, effective as of the Initial Closing Date with a term ending no earlier than the Variable Loan maturity date;
(d) If the Initial Loan to such Collateral Pool Borrower is a Variable Loan, receipt by Lender of Interest Rate Hedge Documents and an executed Hedge Security Agreement, each effective as of the Initial Closing Date with a term ending no earlier than the Variable Loan maturity date;
(e) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Loan Note (if applicable for such Collateral Pool), and/or a Fixed Loan Note (if applicable for such Collateral Pool), a Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties in such Collateral Pool and UCC-1 Financing Statements covering the portion of the Collateral in such Collateral Pool comprised of personal property, and other appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the reasonable opinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Loan Documents for such Collateral Pool creating a Lien in favor of Lender, and the payment of all of the following:taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(Af) This Agreement duly executed by Borrower.Intentionally Omitted
(Bg) The Warrants to be issued to Receipt by Lender of all reasonable legal fees and Lighthouse Capital Partners IV, L.P. duly executed expenses payable by Borrower.the applicable Collateral Pool Borrower in connection with the Initial Loan;
(Ch) The Negative Pledge Agreement Receipt by Lender of evidence that the Bank Debt and Xxxxxx Mezzanine Debt or an equivalent amount of equity is in place and has been advanced to the form of EXHIBIT F extent necessary to be issued to Lender duly executed by Borrower.effect the transactions contemplated hereby and under the documents evidencing the Bank Debt and the Xxxxxx Mezzanine Debt;
(Di) Borrower shall have delivered to Receipt by Lender of an acceptable Intercreditor Agreement on a payoff letter in Xxxxxx Mae approved form and substance reasonably satisfactory to Lender with respect to the SVB Obligations Xxxxxx Mezzanine Debt and provide evidence of the full release of any and all liens related to the SVB Obligations.Bank Debt;
(Ej) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents If required by Borrower thereunder for the executionLender, delivery and performance receipt by Lender of the Loan Documentsan acceptable cash management agreement on a Xxxxxx Mae approved form.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Archstone Smith Operating Trust)
Conditions Precedent to Initial Loan. The ------------------------------------ obligation of Lender the Banks to undertake the Commitment and to make the initial Loan hereunder is subject to the condition precedent that Lender prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have receivedreceived each of the following, in form and substance reasonably satisfactory to Lender, all of the followingBanks:
(Ai) This Agreement duly executed by Borrower.
(B) The Warrants to be issued to Lender the loan certificate of the Borrower and Lighthouse Capital Partners IVeach Consolidated Entity Guarantor, L.P. duly executed by Borrower.
(C) The Negative Pledge Agreement in the form including a certificate of EXHIBIT F to be issued to Lender duly executed by Borrower.
(D) Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender incumbency with respect to the SVB Obligations and provide evidence signature of each Authorized Signatory of the full release Borrower and any authorized signatures of any and all liens related to the SVB Obligations.
(E) The ACH Authorization Form such Consolidated Entity Guarantor, which loan certificate shall be in substantially the form of EXHIBIT Exhibit E attached hereto duly executed hereto, together with appropriate attachments thereto, which shall include without limitation the following items: (A) a true, complete and delivered by Borrower.
(F) Copies correct copy of the contracts Articles of Incorporation and agreements referenced in SECTION 5.14By-Laws of the Borrower and, for each Consolidated Entity Guarantor such Persons corresponding organizational documents, and any third party consents required by (B) a copy of the resolutions of the Borrower thereunder for and each Consolidated Entity Guarantor authorizing the Borrower and such Consolidated Entity Guarantor with respect to the borrowing hereunder and the execution, delivery and performance by the Borrower and such Consolidated Entity Guarantor of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.Documents in accordance with their respective terms and of any other documents contemplated hereunder and the consummation of the transactions contemplated hereby and thereby;
(Kii) Payment duly executed Notes;
(iii) duly executed Consolidated Entity Guaranties from the Consolidated Entity Guarantors;
(iv) the opinion of counsel to the Borrower and the Consolidated Entity Guarantors addressed to each Bank, the Issuing Bank and the Administrative Agent substantially in the form of Exhibit F attached hereto;
(v) the duly executed Request for Loan for the initial Loan of the Loans;
(vi) audited financial statements for the Borrower for the calendar year ended December 31, 2000 and the unaudited financial statements for the Borrower for the quarter ended June 30, 2001;
(vii) payment in full of the commitment fee required pursuant to Section 2.4(a), the arrangement fee required pursuant to Section 2.4(e) and the prorated portion of any unreimbursed Lender's Expenses.other fees payable quarterly in advance under Section 2.4 to the Administrative Agent for the Banks, which fee shall be fully earned when due and non-refundable when paid;
(Lviii) Such a Compliance Certificate reflecting Borrower's compliance with the covenants and other documentsmatters addressed therein as of June 30, 2001; and
(ix) evidence as to the termination of that certain Amended and completion Restated Loan Agreement dated as of such other mattersAugust 27, as Lender may reasonably deem necessary or appropriate1999, among the Borrower, Bank of America and Wachovia Bank, N.A.
(b) All of the representations and warranties of the Borrower under this Agreement shall be true and correct in all material respects, both before and after giving effect to the application of the proceeds of the initial Loan.
Appears in 1 contract
Conditions Precedent to Initial Loan. The obligation (irrespective of any approval of a Transaction Approval Request) of Lender to make the initial Approved Loan, whether on the Closing Date or thereafter, is, in addition to the conditions precedent specified in Subsection 3.02, subject to the delivery of all documents listed on, the taking of all actions set forth on and the satisfaction of all other conditions precedent listed in the Closing Checklist attached hereto as Annex “A”, all in form and substance, or in a manner, reasonably satisfactory to Lender. Without limiting the foregoing, the obligation of Lender to make the initial Approved Loan is subject to receipt by Lender, on or prior to the condition precedent that Lender shall have receivedapplicable Funding Date, of the following documents, each in form and substance reasonably satisfactory to Lender, all of the following:
(A1) This Agreement duly executed by Copies of all formation, capitalization and governance documents of Holdings reflecting that it has issued and sold Stock to Compass Wilton Partners, LP, the gross cash proceeds of which are at least $25,000,000 and that Holdings has, in turn, contributed or otherwise purchased not less than $25,000,000 of capital Stock of Borrower.
(B) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. duly executed by Borrower.
(C) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender duly executed by Borrower.
(D) Borrower shall have delivered to Lender a payoff letter in form and substance together with evidence, reasonably satisfactory to Lender with respect Lender, that such proceeds have been deposited to the SVB Obligations Disbursement Account or the Revolver Prefunding Escrow Account and provide evidence have been used or are otherwise available to Borrower solely and expressly for purposes of making or purchasing Permitted Investments;
(2) Certificates of the full release managers of any each of Holdings and all liens related to of Borrower, dated the SVB Obligations.
(E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the initial Funding Date, (ii) incumbency certifying that no Default or Event of Default exists or would be created by the contemplated Loans, that all conditions precedent specified in Subsections 3.01, 3.02 and representative signatures, 3.03 have been fully satisfied and (iii) resolutions authorizing the execution that all representations and delivery warranties set forth in Section 4.01 are true and correct as of this Agreement and each of the other Loan Documents.such date; and
(H3) A good standing certificate from Borrower's state Evidence of incorporation and the state in which Borrower's principal place of business is locatedinsurance as required under Subsection 5.01(f), together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documentsextent not already delivered to Lender.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
Appears in 1 contract
Conditions Precedent to Initial Loan. The Each Lender’s obligation of Lender to make the initial Loan is subject to the condition precedent that Lender Agent shall have received, in form and substance reasonably satisfactory to LenderAgent, all of the following:
(A) This Agreement duly executed by Borrower.
(B) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. duly executed by Borrower.
(C) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender duly executed by Borrower.
(D) Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender with respect to the SVB Obligations and provide evidence of the full release of any and all liens related to the SVB Obligations.
(E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender Agent may reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed signatures to this Agreement;
(b) duly executed original signatures to the Warrant;
(c) duly executed signatures to the IP Security Agreement;
(d) subject to Section 3.3(b), duly executed signatures to the Account Control Agreement(s) required under Section 6.6(b);
(e) subject to Section 3.3(b), duly executed signatures to the Collateral Access Agreement(s) for such locations as Agent may require;
(f) a certificate of Borrower, duly executed by a Responsible Officer, certifying and attaching (i) the Operating Documents, (ii) resolutions duly approved by the Board, (iii) any resolutions, consent or waiver duly approved by the requisite holders of Borrower’s Equity Interests, if applicable (or certifying that no such resolutions, consent or waiver is required), and (iv) a schedule of incumbency;
(g) a payoff letter with respect to the Existing Notes, together with all documents reasonably required in connection with the payoff and release of any Liens securing the Existing Notes;
(h) the Perfection Certificate of Borrower Representative, together with the duly executed signature thereto;
(i) evidence satisfactory to Agent, that the insurance policies and endorsements required by Section 6.5 are in full force and effect;
(j) a legal opinion of counsel to Borrowers;
(k) budget for fiscal year 2019, approved by Borrower Representative’s Board and projections for Borrower Representative’s fiscal year ending December 31, 2020;
(l) all documentation and other information that Agent or any Lender reasonably requires in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to include a duly executed copy of an IRS Form W-9 or other such applicable IRS Forms;
(m) a disbursement letter, duly executed by each Borrower;
(n) the Automatic Payment Authorization, duly executed by Borrower Representative;
(o) payment of the closing fee as specified in Section 2.4(a) and Lender Expenses and administrative agent fee then due as specified in Section 2.4(d); and
(p) capitalization tables for Borrower Representative, including a summary of Equity Interests outstanding, by class.
Appears in 1 contract
Samples: Loan and Security Agreement (Brilliant Earth Group, Inc.)
Conditions Precedent to Initial Loan. The Lender’s obligation of Lender to make the initial Loan hereunder is subject to the condition precedent that fulfillment, to the satisfaction of Lender and its counsel, of each of the following conditions:
(a) Lender shall have receivedreceived the following, each (as applicable) duly executed and in form and substance reasonably satisfactory to Lender, all of the followingLender in its sole discretion:
(Ai) This the Note, duly executed by Borrower, payable to the order of Lender;
(ii) the Security Agreement duly executed by Borrower.Borrower and all documents contemplated thereby;
(Biii) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. the Dain Control Agreement duly executed by Borrower.Borrower and Dain;
(Civ) The Negative Pledge Agreement in a copy of the form of EXHIBIT F to be issued to Lender duly executed by Borrower.Dain Account Agreement;
(Dv) Borrower shall have delivered to Lender a payoff letter in form and substance reasonably satisfactory to Lender with respect to the SVB Obligations and provide evidence copy of the full release Certificate of any Formation and all liens related to the SVB Obligations.LLC Agreement of Borrower as then in effect;
(Evi) The ACH Authorization Form copy of the Trust Agreement of Guarantor as then in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.effect;
(Fvii) Copies a copy of the contracts Management Agreement as in effect on the date hereof;
(viii) certified copies of (A) resolutions of the Board of Managers of Borrower and agreements referenced in SECTION 5.14, of the Board of Trustees of Guarantor authorizing and any third party consents required by Borrower thereunder for approving the execution, delivery and performance of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery Guarantor of this Agreement and each the other Credit Documents and the borrowings hereunder, and (B) documents evidencing all other necessary actions and governmental approvals, if any, with respect to this Agreement and any other Credit Document and the transactions contemplated hereby and thereby;
(ix) a certificate of Borrower, executed by an authorized officer, certifying the names, titles and true signatures of the officers of Borrower authorized to sign this Agreement or any other Loan DocumentsCredit Document to which Borrower is a party and to make Borrowings hereunder and otherwise to act on behalf of Borrower hereunder and stating that Lender is authorized to rely thereon until notified of any change by Borrower.
(Hx) A a certificate of Guarantor, executed by an authorized officer, certifying the names, titles and true signatures of the officers of Guarantor authorized to sign this Agreement or any other Credit Document to which Guarantor is a party and authorized to act on behalf of Guarantor hereunder and stating that Lender is entitled to rely thereon until notified of any change by Guarantor in writing;
(xi) a certificate issued by the Secretary of State of Delaware, dated a date not more than ten Business Days prior to the Closing Date, as to the valid existence and good standing of Borrower;
(xii) a certificate from Borrower's state issued by the Secretary of incorporation State of the State of Maryland dated a date not more than ten Business Days prior to the Closing Date, as to the valid existence and good standing of Guarantor;
(xiii) written opinion(s) of counsel to Borrower and Guarantor;
(xiv) evidence that not less than 34,530 Alesco Funding Preferred Shares are credited to the Dain Account.
(xv) evidence of the due filing in each appropriate jurisdiction of such documents, and the state taking of all such other actions, as the Bank shall specify to obtain a first priority, perfected Lien on the Collateral;
(xvi) the results of tax, judgment and lien searches on Borrower in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such stateall jurisdictions specified by Lender, each dated a date not more than ten Business Days prior to the Closing Date;
(xvii) a copy of a Valuation Report as of a recent datedate not more than five (5) Business Days prior to the initial Borrowing Date.
(Ixviii) The insurance coverage required by SECTION 6.9 if available, a copy of the Sunset Financial Merger Agreement; and
(xix) such other approvals, opinions and documents relating to the organization, existence and good standing of each Obligor, this AgreementAgreement and the transactions contemplated hereby as Lender shall have requested.
(Jb) All necessary consents of shareholders and other third parties with respect Borrower shall have reimbursed Lender for legal fees incurred by Lender pursuant to the execution, delivery and performance of this Agreement, the Warrants and the other Loan DocumentsSection 9.04 that have been invoiced to Borrower.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
Appears in 1 contract
Conditions Precedent to Initial Loan. The obligation of Lender Lenders to make the initial Loan extension of credit under this Agreement is subject to the condition precedent that Lender fulfillment, to Administrative Agent's satisfaction, of each of the following conditions precedent:
(a) Administrative Agent shall have receivedreceived each of the following, in each case in form and substance satisfactory to Administrative Agent:
(i) A copy of the organizational documents of Borrower and all amendments thereto, accompanied by the certificate of the appropriate Governmental Authority of Borrower's jurisdiction of organization bearing a current date acceptable to Administrative Agent, to the effect that such copy is correct and complete and that Borrower is duly organized and validly existing in such jurisdiction;
(ii) Certification by the appropriate Governmental Authority, bearing a current date acceptable to Administrative Agent, to the effect that Borrower is in good standing and qualified to transact business in Borrower's jurisdiction of organization and in each other jurisdiction where Borrower transacts business;
(iii) a copy of the bylaws or similar governing document of Borrower and all amendments thereto, (B) certification of the name, signature and incumbency of all officers of Borrower who are authorized to execute any Loan Document or request Loans on behalf of Borrower and (C) a copy of authorizing resolutions approving this Agreement and the other Loan Documents to be executed and delivered by Borrower, authorizing the transactions contemplated thereby, and authorizing and directing a named officer or officers of Borrower to sign and deliver all Loan Documents to be executed by Borrower, duly adopted by Borrower's board of directors or similar governing body of Borrower, all accompanied by a certificate from a Responsible Officer of Borrower dated as of the Agreement Date to the effect that each such item is true and complete and in full force and effect as of the Agreement Date;
(iv) This Agreement, duly executed by Borrower;
(v) Evidence of insurance in compliance with the requirements of this Agreement;
(vi) All third-party waivers, subordinations and consents as may be required by Administrative Agent with respect to any Collateral located on premises not owned by Borrower;
(vii) A Subordination Agreement with respect to any Debt proposed by Borrower as Subordinated Debt and a copy of the instrument evidencing any such debt;
(viii) A Guaranty of payment of the Obligations, executed by Parent;
(ix) The Parent Pledge Agreement;
(x) If requested by Administrative Agent, a security agreement in respect of Proprietary Rights;
(xi) Evidence satisfactory to Administrative Agent that Availability, after giving effect to the initial Revolving Loans, paying all fees and Lender Expenses required to be paid by this Agreement (and with all taxes paid and trade indebtedness reduced to within 30 days of terms), will be in an amount equal to or greater than $1,000,000;
(xii) UCC-3 termination statements, partial releases or such other releases as may be required by Administrative Agent with respect to the Collateral;
(xiii) Copies of Borrower's unaudited financial statements for the Fiscal Year ending December 31, 2010;
(xiv) Copies of Borrower's unaudited financial statements for the period ending March 31, 2011;
(xv) Financial statements of each Guarantor, certified by it as being true, correct and complete;
(xvi) An opinion of counsel for Borrower and each Guarantor, respectively, in form and substance reasonably satisfactory to Lender, all of the following:Administrative Agent;
(Axvii) This Agreement A request for Revolving Loan and Borrowing Base Certificate as required by Section 8.5(a) duly executed by Borrower.a Responsible Officer;
(Bxviii) The Warrants the Letter of Credit;
(xix) A copy of IRS Form 8821, listing Administrative Agent as "Appointee" and otherwise completed in a manner satisfactory to be issued Administrative Agent, signed by Borrower and filed with the appropriate office of the Internal Revenue Service; and
(xx) A closing certificate, certifying to Lender and Lighthouse Capital Partners IVthe satisfaction of conditions precedent specified by this Section 6.1, L.P. duly executed by Borrower.a Responsible Officer;
(C) The Negative Pledge Agreement in the form of EXHIBIT F to be issued to Lender duly executed by Borrower.
(Db) Borrower shall have delivered established cash proceeds management and Control of all Deposit Accounts in which proceeds of Accounts will be deposited, pursuant to Lender Section 5.3, and confirmed that Borrower's reporting systems are acceptable to Administrative Agent;
(c) Administrative Agent shall have filed all financing statements as required to perfect Administrative Agent's Liens in all Collateral with respect to which perfection can be achieved by filing a payoff letter financing statement, and shall have received evidence or other confirmation of such filing, satisfactory to Administrative Agent;
(d) Administrative Agent shall have Control of the Pledged Cash Collateral;
(e) Administrative Agent shall have received satisfactory reference checks with respect to Borrower's senior management;
(i) Borrower shall have established arrangements with G2 Secure Staff, LLC, or a wholly owned Subsidiary thereof, providing for the outsourcing of Borrower's general and administrative functions, pursuant to a written agreement in form and substance reasonably satisfactory to Lender Administrative Agent (the "Services Agreement"), a copy of which shall have been delivered to Administrative Agent and (ii) Agent shall have established arrangements for the provision of services to Agent, as secured party, in connection with respect the Services Agreement, pursuant to the SVB Obligations a written agreement in form and provide evidence of the full release of any and all liens related substance satisfactory to the SVB Obligations.Administrative Agent;
(Eg) The ACH Authorization Form in Administrative Agent shall have completed confirmation of Borrower's Accounts, and the form results of EXHIBIT E attached hereto duly executed and delivered by Borrower.such confirmation shall be satisfactory to Administrative Agent;
(Fh) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents.shall have paid all Lender Expenses; and
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) All legal and business matters in connection with the certificate of incorporation and by-laws of Borrower certified transaction contemplated by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documentsshall be satisfactory to Administrative Agent.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.
Appears in 1 contract
Samples: Loan and Security Agreement (Icts International N V)
Conditions Precedent to Initial Loan. The obligation of Lender to make the initial Loan is subject to the condition precedent that Lender shall have received, in form and substance reasonably satisfactory to Lender, all of the following:
(Aa) This Agreement duly executed by Borrower.Borrower and Lender;
(Bb) The Warrants to be issued to Lender and Lighthouse Capital Partners IV, L.P. Parent Guaranty duly executed by Parent;
c) Evidence that a UCC financing statement has been filed with the office of the Secretary of State of the State of Missouri;
d) An amendment to the Credit Agreement dated as of June 10, 2005 (as amended, restated, modified and supplemented from time to time, the “Xxxxx Fargo Credit Agreement”) among Xxxxx Fargo Foothill, Inc., as “Agent” (as defined thereunder) and a “Lender” (as defined thereunder), the other “Lenders” from time to time party thereto and Borrower., permitting the Borrower to enter into this Agreement;
(Ce) The Negative Pledge An Intercreditor Agreement in dated as of even date herewith by and among Xxxxx Fargo Foothill, Inc., Borrower and Lender establishing the form relative rights and priorities of EXHIBIT F to be issued to Lender duly executed by Borrower.
(D) Borrower shall have delivered to Lender a payoff letter in form Xxxxx Fargo Foothill, Inc. and substance reasonably satisfactory to Lender with respect to the SVB Obligations assets of Borrower;
f) An unaudited (x) consolidated and provide evidence consolidating balance sheet and income statement and (y) consolidated statement of the full release of any and all liens related to the SVB Obligations.
(E) The ACH Authorization Form cash flow, in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder each case for the executionmost recent month ended covering Parent, delivery Borrower and performance of the Loan Documents.their respective Subsidiaries’ operations during such period;
(Gg) An officer's ’s certificate of Borrower with copies of the following documents attached: (i) the certificate articles of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Datedate hereof, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.Documents (as defined in Section II);
h) An officer’s certificate of Parent with copies of the following documents attached: (Hi) A good standing the amended and restated certificate from Borrower's state of incorporation and by-laws of Parent certified by Parent as being in full force and effect on the state in which date hereof, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of the Parent Guaranty;
i) Evidence of good standing from Borrower's principal place ’s jurisdiction of business is locatedincorporation, together with certificates of or other evidence from the applicable governmental authorities in Borrower’s jurisdiction of incorporation stating that Borrower is in compliance with the franchise tax laws of each such statejurisdiction, each dated as of a recent date.;
(Ij) The Evidence of good standing from Parent’s jurisdiction of incorporation, together with certificates or other evidence from the applicable governmental authorities in Parent’s jurisdiction of incorporation stating that Parent is in compliance with the tax laws of such jurisdiction, each dated as of a recent date and in form and substance satisfactory to Lender;
k) Evidence of the insurance coverage required by SECTION 6.9 Section IV.B of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(L) Such other documents, and completion of such other matters, as Lender may reasonably deem necessary or appropriate.;
Appears in 1 contract
Conditions Precedent to Initial Loan. The obligation of Lender to make the initial Initial Loan on the Initial Closing Date is subject to the condition precedent that following conditions precedent:
(a) Receipt by Lender shall have receivedof the Replacement Reserve Agreement and the Completion/Repair Security Agreement;
(b) Receipt by Lender of opinions of counsel to Borrower and counsel to Operator in form and content satisfactory to Lender;
(c) Receipt by Lender of the documents and instruments required by Sections 6.11 and 6.12;
(d) Delivery to the Title Company with fully executed instructions directing the Title Company to file and/or record in all applicable jurisdictions, all applicable Loan Documents required by Lender to be filed or recorded, including duly executed and delivered original copies of the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance reasonably satisfactory to Lender, all of the following:
(A) This Agreement duly executed by Borrower.
(B) The Warrants to be issued to Lender and Lighthouse Capital Partners IVin form proper for recordation, L.P. duly executed as may be necessary in the opinion of Lender to perfect the Liens created by Borrower.the applicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(Ce) The Negative Pledge Agreement in Receipt by Lender of the form of EXHIBIT F Initial Origination Fee pursuant to be issued Section 10.01(a) and the Initial Due Diligence Fee pursuant to Lender duly executed by Borrower.Section 10.01(b);
(Df) Borrower shall have delivered An Interest Rate Cap must be purchased pursuant to Section 1.11, unless such requirement is waived by Lender a payoff letter in form and substance reasonably satisfactory pursuant to Lender with respect to the SVB Obligations and provide evidence of the full release of any and all liens related to the SVB Obligations.Section 1.11; and
(E) The ACH Authorization Form in the form of EXHIBIT E attached hereto duly executed and delivered by Borrower.
(F) Copies of the contracts and agreements referenced in SECTION 5.14, and any third party consents required by Borrower thereunder for the execution, delivery and performance of the Loan Documents.
(G) An officer's certificate of Borrower with copies of the following documents attached: (i) the certificate of incorporation and by-laws of Borrower certified by Borrower as being in full force and effect on the Funding Date, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(H) A good standing certificate from Borrower's state of incorporation and the state in which Borrower's principal place of business is located, together with certificates of the applicable governmental authorities stating that Borrower is in compliance with the franchise tax laws of each such state, each dated as of a recent date.
(I) The insurance coverage required by SECTION 6.9 of this Agreement.
(J) All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrants and the other Loan Documents.
(K) Payment of any unreimbursed Lender's Expenses.
(Lg) Such other documents, instruments, approvals (and, if requested by Fxxxxx Mxx and completion Lender, certified duplicates of such other matters, executed copies thereof) and opinions as Fxxxxx Mae or Lender may reasonably deem necessary or appropriaterequest.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Brookdale Senior Living Inc.)
