Conditions Precedent to the Initial Advance. The obligation of Banks under this Agreement is subject to the fulfillment, to the satisfaction of Banks and their counsel, of each of the following conditions on or before July 1, 2008: (a) Banks shall have received each of the following documents, duly executed, and each such document shall be in full force and effect: (i) this Agreement duly executed by Borrower; (ii) the Advance Request Form and Disbursement Letter; (iii) any Notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B; and (iv) any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B. (b) Banks shall have received a certificate from an Authorized Person attesting to the corporate authorization of Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific individuals associated with and authorized by Borrower to execute the same. (c) Banks shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person. (d) Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Banks and their counsel; (e) Banks shall have received satisfactory evidence that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower’s Chief Financial Officer to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof (f) Borrower shall have paid (i) the fees payable on the Closing Date and (ii) all expenses of Banks incurred in connection with the transactions contemplated by this Agreement, including without limitation asset searches, credit reports, and the fees and expenses of its outside counsel, as of the Closing Date; (g) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Banks and their counsel; (h) Banks shall have given, in their sole discretion, final credit approval of the credit facilities set forth in this Agreement; (i) Banks shall have been satisfied, in their sole discretion, with the results of a review of Borrower’s most recent interim financial statement; (i) No adverse changes in Borrower’s most recent interim financial statement, or in Borrower’s profits, property, business prospects, or financial condition, shall have occurred since the Banks’ review of Borrower’s most recent financial statement for the period ending March 31, 2008; (k) Banks shall have completed and been satisfied, in Banks’ sole discretion, with Borrower’s trade, credit, and background cheeks, conducted by or for Banks, utilizing resources and data bases selected by Banks; (1) Banks shall have received the written opinion of counsel for Borrower, in form and substance satisfactory to Banks; and
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of Banks under this Agreement is subject to the fulfillment, to the satisfaction of Banks and their counsel, of each of the following conditions on or before July 1, 2008:
(a) Banks shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) this Agreement duly executed by Borrower;
(ii) the Advance Request Form and Disbursement Letter;
(iii) any Notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B; and
(iv) any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B.
(b) Banks shall have received a certificate from an Authorized Person attesting to the corporate authorization of Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific individuals associated with and authorized by Borrower to execute the same.
(c) Banks shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person.
(d) Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Banks and their counsel;
(e) Banks shall have received satisfactory evidence that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower’s Chief Financial Officer to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof
(f) Borrower shall have paid (i) the fees payable on the Closing Date and (ii) all expenses of Banks incurred in connection with the transactions contemplated by this Agreement, including without limitation asset searches, credit reports, and the fees and expenses of its outside counsel, as of the Closing Date;
(g) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Banks and their counsel;
(h) Banks shall have given, in their sole discretion, final credit approval of the credit facilities set forth in this Agreement;
(i) Banks shall have been satisfied, in their sole discretion, with the results of a review of Borrower’s most recent interim financial statement;
(i) No adverse changes in Borrower’s most recent interim financial statement, or in Borrower’s profits, property, business prospects, or financial condition, shall have occurred since the Banks’ review of Borrower’s most recent financial statement for the period ending March 31, 2008;
(k) Banks shall have completed and been satisfied, in Banks’ sole discretion, with Borrower’s trade, credit, and background cheeks, conducted by or for Banks, utilizing resources and data bases selected by Banks;
(1) Banks shall have received the written opinion of counsel for Borrower, in form and substance satisfactory to Banks; and
Appears in 1 contract
Conditions Precedent to the Initial Advance. The obligation of Banks Lenders to make the initial Advance under this Agreement is the Revolving Line of Credit shall be subject to the fulfillmentcondition precedent that Lenders shall have received all of the following, each in form and substance satisfactory to the satisfaction of Banks and Lenders in their counselsole discretion, of each and/or that all of the following conditions shall be true, correct, complete, and acceptable to Lenders in their sole discretion on or before July 1, 2008the date thereof:
(a) Banks shall have received each i. A certificate of the following documentsSecretary or an Assistant Secretary of Borrower, duly executed, and each such document shall be in full force and effect:
certifying as to (i) this Agreement duly executed by Borrower;
(ii1) the Advance Request Form and Disbursement Letter;
(iii) any Notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B; resolutions of the directors and
(iv) any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B.
(b) Banks shall have received a certificate from an Authorized Person attesting to , if required, the corporate authorization shareholders, of Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents, (2) the articles of incorporation and bylaws of Borrower, and (iii) the signatures of the officers or agents of Borrower authorized to execute and deliver this Agreement, the other Loan Documents to which and other instruments, agreements, and certificates, including Advance requests, on behalf of Borrower.
ii. A current certificate issued by the Secretary of State of the state of Borrower's incorporation certifying that Borrower is a party in compliance with all organizational requirements of such state.
iii. Evidence that Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
iv. This Agreement, the Revolving Notes, and authorizing specific individuals associated with the other Loan Documents, fully and authorized properly executed by Borrower to execute the same.and all other parties thereto;
(c) Banks shall have received copies of Borrower’s Governing Documentsv. A subordination agreement from Fortress, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person.
(d) Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the in form and substance acceptable to Lenders in their sole discretion, whereby Fortress, among other things, subordinates all indebtedness and Restricted Equity Investment to the liens of which shall be satisfactory to Banks and their counsel;Lenders.
(e) Banks shall have received satisfactory evidence vi. the Maintenance Agreement with The Fortress Group.
vii. A Borrowing Base Certificate dated as of November 6, 2000.
viii. Current searches of appropriate filing offices showing that all no state or federal tax returns required to be filed by Borrower liens have been timely filed and remain in effect against Borrower and Lenders have duly filed all taxes upon Borrower Security Instruments necessary to perfect the liens and security interests in favor of Lenders.
ix. Financing statements and UCC filings as requested and required by Lenders, in its sole discretion.
x. ALTA Mortgagee's Title Insurance Policies (or its propertiesunconditional commitments for title insurance acceptable to Lenders and letters confirming the irrevocable and imminent issuance of such policies) from all applicable title insurance companies insuring the Property in the amount of not less than $50,000,000.00 and any related endorsements required by Lenders, assetsproperly executed by the applicable title insurance companies.
xi. Lenders, incomeat their sole option, may require a notice of title continuation or an endorsement to their mortgagee's title insurance policies indicating that since the last preceding Advance, there has been no change in the state of title adverse to Lenders.
xii. Releases and terminations of all claims, encumbrances, liens, and franchises security interests against the Collateral (including real property taxes other than the Permitted Encumbrances and payroll taxesthose belonging to Lenders) have been paid prior properly executed by the lienholders and secured parties.
xiii. Certificates of Insurance and endorsements to delinquency, except such taxes that are the subject insurance policies required hereunder.
xiv. Payment of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower’s Chief Financial Officer any unpaid fees or other amounts owing to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof
(f) Borrower shall have paid (i) the fees payable on the Closing Date and (ii) all expenses of Banks incurred in connection with the transactions contemplated by this Agreement, including without limitation asset searches, credit reports, and the fees and expenses of its outside counsel, Lenders as of the Closing Date;.
(g) all other documents xv. An opinion of counsel to Borrower and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be Fortress in form and substance satisfactory acceptable to Banks Lenders addressed to Lenders, their participants, successors, and assigns, and their counsel;attorneys.
(h) Banks xvi. All of the conditions to the closing of the Revolving Line of Credit contained in the Commitment and this Agreement have been and remain satisfied.
xvii. Borrower shall have givenmaterially complied with all of its covenants and agreements contained in all of the Loan Documents, and Borrower's representations and warranties contained in any of the Loan Documents shall be true as of the date of disbursement as if first made on that date.
xviii. Current Master Budgets and Plans and Specifications (including updated list of options) for all Filings and all Finished Lots and Units in the Filings, all in form and substance acceptable to Lenders in their sole discretion, final credit approval .
xix. Current surveys or approved Plats for each portion of the credit facilities set forth in this Agreement;
(i) Banks shall have been satisfiedProperty and all documentation regarding the platting of each portion of the Property, in their sole discretion, with the results of a review of Borrower’s most recent interim financial statement;
(i) No adverse changes in Borrower’s most recent interim financial statement, or in Borrower’s profits, property, business prospects, or financial condition, shall have occurred since the Banks’ review of Borrower’s most recent financial statement for the period ending March 31, 2008;
(k) Banks shall have completed and been satisfied, in Banks’ sole discretion, with Borrower’s trade, credit, and background cheeks, conducted by or for Banks, utilizing resources and data bases selected by Banks;
(1) Banks shall have received the written opinion of counsel for Borrower, all in form and substance satisfactory acceptable to Banks; Lenders in their sole discretion and, if a survey is provided, certified as accurate by a licensed surveyor in the state of Colorado, for the benefit of Lenders.
xx. The Improvements are being and have been constructed substantially in accordance with the Master Budgets and the Plans and Specifications approved by Lenders.
xxi. Any certifications and lien waivers required by Lenders.
xxii. Fully executed assignments of all contracts between Borrower and Builder with reference to all major subcontractors, suppliers, architects, and engineers of Borrower.
xxiii. Such other agreements, documents, and instruments as Lenders in their reasonable discretion may require.
Appears in 1 contract
Samples: Senior Borrowing Base Revolving Line of Credit Agreement (Fortress Group Inc)
Conditions Precedent to the Initial Advance. The obligation obligations of Banks each Lender under this Agreement is and the obligation of each Lender to make the Initial Advance shall be subject to the fulfillment, to the satisfaction of Banks and their counsel, of each of the following conditions precedent that on or before July 1, 2008the Closing Date:
(a) Banks All terms, conditions and documentation in connection with this Agreement shall be acceptable to Lenders.
(b) The making of the Commitment shall not contravene any Law applicable to Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized Officer stating that no Material Adverse Change has occurred since the December 31, 1999 financial statements provided to Lenders. Administrative Agent shall have received financial information regarding Company and each Subsidiary of Company requested by it.
(d) Each Lender shall have received an executed copy of this Agreement and its respective Note, duly completed and correct. Lenders shall have received copies of the Fee Letters signed by Company, as applicable. Each of the following documentsshall have been delivered to Administrative Agent on behalf of Lenders, duly executedin form and substance satisfactory to Administrative Agent, Special Counsel and each Lender. The Guaranty Agreement executed by each Guarantor and a Subordination Agreement executed by each payee of an Intercompany Note.
(e) Company shall have delivered to Administrative Agent a Certificate, dated the Closing Date, executed by an Authorized Officer, certifying that, to such Authorized Officer's knowledge, (i) no Default or Event of Default has occurred and is continuing, (ii) the representations and warranties set forth in ARTICLE IV hereof are true and correct in all material respects, and (iii) Company and each Subsidiary of Company has complied with all agreements and conditions to be complied with by it in all material respects under the Loan Papers by such document date.
(f) Company and each Guarantor shall be have each delivered to Administrative Agent on behalf of Lenders a Secretary's Certificate, dated the Closing Date, certifying (i) that attached copies of the certificates of organization certified by the Secretary of States of the appropriate states, and bylaws are true and complete, and in full force and effect:
(i) this Agreement duly executed by Borrower;
, without amendment except as shown, and (ii) that a copy of the Advance Request Form resolutions authorizing execution and Disbursement Letter;
(iii) any Notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B; and
(iv) any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B.
(b) Banks shall have received a certificate from an Authorized Person attesting to the corporate authorization of Borrower authorizing the execution, delivery, and performance delivery of this Agreement and the other any Loan Documents to which Borrower is a party and authorizing specific individuals associated with and authorized by Borrower to execute the same.
(c) Banks shall have received copies of Borrower’s Governing DocumentsPapers, as appropriate, are true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified, or supplemented revoked, and constitute all resolutions adopted with respect to this loan transaction. Administrative Agent and Lenders may conclusively rely on the certificates delivered pursuant to this subsection until they receive notice in writing to the contrary.
(g) Administrative Agent shall have received an opinion or opinions of counsel to Company and its Subsidiaries, dated the Closing Date, certified by an Authorized Person.
(d) Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the acceptable to Lenders and otherwise in form and substance of which shall be satisfactory to Banks Lenders and their counsel;
(e) Banks shall have received satisfactory evidence that all tax returns required Special Counsel, with respect to be filed by Borrower have been timely filed this loan transaction and all taxes upon Borrower or its propertiesotherwise, assetsincluding, incomewithout limitation, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower’s Chief Financial Officer to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof
(f) Borrower shall have paid opinions (i) to the fees payable on valid and binding nature of the Closing Date and Loan Papers, (ii) all expenses to the power, authorization and corporate matters of Banks incurred each such Person taken in connection with the transactions contemplated by this Agreementthe Loan Papers, including without limitation asset searches(iii) that the execution, credit reportsdelivery and performance by Company and the Subsidiaries of Company of the respective Loan Papers does not violate any of the terms of Company's or any such Subsidiary's agreements, and the fees and expenses (iv) to such other matters as are reasonably requested by Special Counsel.
(h) Administrative Agent shall have received, on behalf of its outside counselLenders, as each of the Closing Date;following, in form and substance satisfactory to Administrative Agent and Special Counsel:
(gi) evidence that all other documents proceedings of Company and legal matters its Subsidiaries taken in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be reasonably satisfactory in form and substance satisfactory to Banks Lenders and their counselSpecial Counsel; and each Lender shall have received copies of all documents or other evidence which Lenders or Special Counsel may reasonably request in connection with this facility, including without limitation the resolutions of the Board of Directors of Company and each Subsidiary, and the requisite authorizations of all other Persons necessary to authorize the transactions contemplated herein, certified to be true and correct by an Authorized Officer;
(hii) Banks shall have givenpayment of all fees, in their sole discretioncosts and expenses (including, final credit approval without limitation, attorneys' fees of Special Counsel due to be paid on or through the credit facilities set forth in this Agreement;Closing Date); and
(iii) a Compliance Certificate computed after giving effect to the Initial Advance.
(i) Banks shall have been satisfied, All corporate proceedings of Company and its Subsidiaries taken in their sole discretion, connection with the results of a review of Borrower’s most recent interim financial statement;
(i) No adverse changes in Borrower’s most recent interim financial statementtransactions contemplated hereby, or in Borrower’s profits, property, business prospects, or financial conditionand all documents incidental thereto, shall have occurred since the Banks’ review of Borrower’s most recent financial statement for the period ending March 31, 2008;
(k) Banks shall have completed and been satisfied, in Banks’ sole discretion, with Borrower’s trade, credit, and background cheeks, conducted by or for Banks, utilizing resources and data bases selected by Banks;
(1) Banks shall have received the written opinion of counsel for Borrower, be satisfactory in form and substance satisfactory to Banks; andeach Lender. Administrative Agent and each Lender shall have received copies of all documents or other evidence that it may reasonably request in connection with such transactions.
(j) All conditions precedent to the Initial Advance (as defined in the Amended and Restated Credit Agreement) and the Initial Letter of Credit (as defined in the Amended and Restated Credit Agreement) shall have been satisfied (or waived by each Lender).
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Conditions Precedent to the Initial Advance. The Lender's obligation of Banks under this Agreement is to make the initial Advance hereunder shall be subject to the fulfillment, to condition precedent that the satisfaction of Banks and their counsel, of each of the following conditions on or before July 1, 2008:
(a) Banks Lender shall have received each all of the following documentsfollowing, duly executed, and each such document shall be in full force and effect:
(i) this Agreement duly executed by Borrower;
(ii) the Advance Request Form and Disbursement Letter;
(iii) any Notes required or provided by Banks for execution by Borrower to document Facility A and/or Facility B; and
(iv) any other instruments required or provided by Banks for execution by Borrower to document Facility A and/or Facility B.
(b) Banks shall have received a certificate from an Authorized Person attesting to the corporate authorization of Borrower authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific individuals associated with and authorized by Borrower to execute the same.
(c) Banks shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by an Authorized Person.
(d) Banks shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Banks and their counsel;
(e) Banks shall have received satisfactory evidence that all tax returns required to be filed by Borrower have been timely filed and all taxes upon Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; such satisfactory evidence shall be provided in the form of written certification by Borrower’s Chief Financial Officer to the effect that the foregoing matters in this paragraph have been fully satisfied, unless Banks in their discretion shall request further evidence thereof
(f) Borrower shall have paid (i) the fees payable on the Closing Date and (ii) all expenses of Banks incurred in connection with the transactions contemplated by this Agreement, including without limitation asset searches, credit reports, and the fees and expenses of its outside counsel, as of the Closing Date;
(g) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Banks the Lender:
(a) This Agreement, properly executed by the Borrower.
(b) The Note, properly executed by the Borrower.
(c) The SBA/Ex-Im Bank Joint Application, properly completed and their counsel;executed by the Borrower.
(d) The Borrower Agreement, properly executed by the Borrower.
(e) A properly completed and executed Borrowing Base Certificate as of a date not more than five (5) Business Days before the date of this Agreement.
(f) A certificate of the Borrower's secretary or assistant secretary certifying as to (i) the resolutions of the Borrower's directors and if required, shareholders, authorizing the execution, delivery and performance of this Agreement, the Note, the Borrower Agreement and the Loan Authorization Agreement, (ii) the Borrower's articles of incorporation and bylaws, and (iii) the signatures of the Borrower's officers or agents authorized to execute and deliver this Agreement, the Note, the Borrower Agreement and the Loan Authorization Agreement and other instruments, agreements and certificates, including Advance requests, on the Borrower's behalf.
(g) An Exceptions Approval Letter, properly signed by Ex-Im Bank.
(h) Banks shall have given, in their sole discretion, final credit approval Payment of the credit facilities set forth in this Agreement;fees and commissions due through the date of the initial Advance and expenses incurred by the Lender through such date and required to be paid by the Borrower under Sections 2.6 and 8.4, including all legal expenses incurred through the Closing Date.
(i) Banks shall have been satisfied, Such other documents as the Lender in their its sole discretion, with the results of a review of Borrower’s most recent interim financial statement;
(i) No adverse changes in Borrower’s most recent interim financial statement, or in Borrower’s profits, property, business prospects, or financial condition, shall have occurred since the Banks’ review of Borrower’s most recent financial statement for the period ending March 31, 2008;
(k) Banks shall have completed and been satisfied, in Banks’ sole discretion, with Borrower’s trade, credit, and background cheeks, conducted by or for Banks, utilizing resources and data bases selected by Banks;
(1) Banks shall have received the written opinion of counsel for Borrower, in form and substance satisfactory to Banks; anddiscretion may require.
Appears in 1 contract
