Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s obligation to make the initial Disbursement is subject to the condition precedent that Ex-Im Bank shall have received, in form and substance satisfactory to Ex-Im Bank, such documents, and completion of such other matters, as Ex-Im Bank may reasonably deem necessary or appropriate, including each of the documents listed in the closing checklist attached as Exhibit D hereto (to the extent not duplicative of the following) and the following: i. This Agreement, duly executed by Borrower and Guarantors; ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authority) of the state of Borrower’s state of organization as of a date no earlier than thirty (30) days prior to the Effective Date; iii. duly executed original signatures to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the execution, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially in the form of Exhibit A attached hereto; iv. certified copies, dated no earlier than thirty (30) days prior to the Effective Date, of UCC financing statement searches, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request (and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released; v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank; vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank; vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder; viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request; ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid; x. payment of the Exposure Fee and all other fees and expenses described herein and in the Loan Documents which are due and payable on the Effective Date, including without limitation, the fees and expenses of counsel to Ex-Im Bank; xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s), in form and substance satisfactory to Ex-Im Bank, evidencing the Borrower’s direction to pay proceeds, up to $400,000, under any existing letter of credit naming Borrower as a beneficiary, including, without limitation, the Borrower’s irrevocable letter of credit issued by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M in the amount of EUR 533,209) to Ex-Im Bank; and xiii. such other agreements, documents, resolutions, reports, instruments, certifications, statements, or consents as Ex-Im Bank may require.
Appears in 2 contracts
Samples: Loan, Security and Guarantee Agreement (Ener-Core Inc.), Loan Agreement (Ener-Core Inc.)
Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s The obligation of BANKS to make the initial Disbursement disbursement under the CONSTRUCTION LOAN is subject to the condition precedent, unless waived by the ADMINISTRATIVE AGENT, that BORROWER shall be in compliance with the conditions set forth in Section 4.2 of this AGREEMENT and to the further condition precedent that Exthat, unless waived by ADMINISTRATIVE AGENT in writing in the POST-Im Bank CLOSING LETTER (as defined below in Section 8.13), ADMINISTRATIVE AGENT shall have receivedreceived on or before the CLOSING all of the following, each dated (unless otherwise indicated) the day of CLOSING, in form and substance satisfactory to Ex-Im Bank, such documentsADMINISTRATIVE AGENT:
4.1.1 This AGREEMENT, and completion the CONSTRUCTION NOTES, duly executed on behalf of such other mattersBORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.2 The MORTGAGE duly executed on behalf of BORROWER and in form acceptable for recording in Ford County, as Ex-Im Bank may reasonably deem necessary Illinois.
4.1.3 The FEE LETTER duly executed by BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.4 The SECURITY AGREEMENT, duly executed on behalf of BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.5 A financing statement or appropriatestatements sufficient when filed to perfect the security interests granted under the MORTGAGE, including each of the documents listed in SECURITY AGREEMENT, and the closing checklist attached as Exhibit D hereto (ASSIGNMENT OF CONSTRUCTION CONTRACT, to the extent not duplicative such security interests are capable of the following) and the following:
i. This Agreementbeing perfected by filing, duly executed by Borrower and Guarantors;
ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authority) of the state of Borrower’s state of organization as of a date no earlier than thirty (30) days prior to the Effective Date;
iii. duly executed original signatures to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the execution, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially in the form of Exhibit A attached hereto;
iv. certified copies, dated no earlier than thirty (30) days prior to the Effective Date, of UCC financing statement searches, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request (and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released;
v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank;
vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank;
vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder;
viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request;
ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid;
x. payment of the Exposure Fee and all other fees and expenses described herein and in the Loan Documents which are due and payable on the Effective Date, including without limitation, the fees and expenses of counsel to Ex-Im Bank;
xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and
xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s), deposit account control agreement in form and substance satisfactory acceptable to Exthe ACCOUNTS BANK to perfect the ACCOUNTS BANK’s security interest in any deposit accounts maintained by BORROWER with financial institutions other than the ACCOUNTS BANK and a securities control agreement to perfect any investment property held by a financial intermediary.
4.1.6 A copy of the PLANS, with the PLANS prepared by XXXXX ENGINEERING certified by XXXXX ENGINEERING, DESIGN-Im BankBUILDER and BORROWER, evidencing and a copy of the Borrower’s direction plans for a dewatering system which addresses shallow groundwater at the PROPERTY to pay proceeds, up to $400,000, under any existing letter the satisfaction of credit naming Borrower as a beneficiary, including, without limitation, ADMINISTRATIVE AGENT and the Borrower’s irrevocable letter of credit issued by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M in the amount of EUR 533,209) to Ex-Im Bank; and
xiii. such other agreements, documents, resolutions, reports, instruments, certifications, statements, or consents as Ex-Im Bank may requireINSPECTING ARCHITECT.
Appears in 1 contract
Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s The obligation of BANKS to make the initial Disbursement disbursement under the CONSTRUCTION LOAN is subject to the condition precedent, unless waived by the ADMINISTRATIVE AGENT, that BORROWER shall be in compliance with the conditions set forth in Section 4.2 of this AGREEMENT and to the further condition precedent that Exthat, unless waived by ADMINISTRATIVE AGENT in writing in the POST-Im Bank CLOSING LETTER (as defined below in Section 8.13), ADMINISTRATIVE AGENT shall have receivedreceived on or before the CLOSING all of the following, each dated (unless otherwise indicated) the day of CLOSING, in form and substance satisfactory to Ex-Im Bank, such documentsADMINISTRATIVE AGENT:
4.1.1 This AGREEMENT, and completion the CONSTRUCTION NOTES, duly executed on behalf of such other mattersBORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.2 The MORTGAGE duly executed on behalf of BORROWER and in form acceptable for recording in Ford County, as Ex-Im Bank may reasonably deem necessary Illinois.
4.1.3 The FEE LETTER duly executed by BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.4 The SECURITY AGREEMENT, duly executed on behalf of BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.5 A financing statement or appropriatestatements sufficient when filed to perfect the security interests granted under the MORTGAGE, including each of the documents listed in SECURITY AGREEMENT, and the closing checklist attached as Exhibit D hereto (ASSIGNMENT OF CONSTRUCTION CONTRACT, to the extent not duplicative such security interests are capable of the following) and the following:
i. This Agreementbeing perfected by filing, duly executed by Borrower and Guarantors;
ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authority) of the state of Borrower’s state of organization as of a date no earlier than thirty (30) days prior to the Effective Date;
iii. duly executed original signatures to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the execution, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially in the form of Exhibit A attached hereto;
iv. certified copies, dated no earlier than thirty (30) days prior to the Effective Date, of UCC financing statement searches, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request (and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released;
v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank;
vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank;
vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder;
viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request;
ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid;
x. payment of the Exposure Fee and all other fees and expenses described herein and in the Loan Documents which are due and payable on the Effective Date, including without limitation, the fees and expenses of counsel to Ex-Im Bank;
xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and
xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s), deposit account control agreement in form and substance satisfactory acceptable to Exthe ACCOUNTS BANK to perfect the ACCOUNTS BANK’s security interest in any deposit accounts maintained by BORROWER with financial institutions other than the ACCOUNTS BANK and a securities control agreement to perfect any investment property held by a financial intermediary.
4.1.6 A copy of the PLANS, with the PLANS prepared by FXXXX ENGINEERING certified by FXXXX ENGINEERING, DESIGN-Im BankBUILDER and BORROWER, evidencing and a copy of the Borrower’s direction plans for a dewatering system which addresses shallow groundwater at the PROPERTY to pay proceeds, up to $400,000, under any existing letter the satisfaction of credit naming Borrower as a beneficiary, including, without limitation, ADMINISTRATIVE AGENT and the Borrower’s irrevocable letter of credit issued by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M in the amount of EUR 533,209) to Ex-Im Bank; and
xiii. such other agreements, documents, resolutions, reports, instruments, certifications, statements, or consents as Ex-Im Bank may requireINSPECTING ARCHITECT.
Appears in 1 contract
Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s The obligation of BANKS to make the initial Disbursement disbursement under the CONSTRUCTION LOAN is subject to the condition precedent, unless waived by the ADMINISTRATIVE AGENT, that BORROWER shall be in compliance with the conditions set forth in Section 4.2 of this AGREEMENT and to the further condition precedent that Ex-Im Bank that, unless waived by ADMINISTRATIVE AGENT in writing in the POST CLOSING LETTER (as defined below in Section 8.13), ADMINISTRATIVE AGENT shall have receivedreceived on or before the CLOSING all of the following, each dated (unless otherwise indicated) the day of CLOSING, in form and substance satisfactory to Ex-Im Bank, such documentsADMINISTRATIVE AGENT:
4.1.1 This AGREEMENT, and completion the CONSTRUCTION NOTES and REVOLVING NOTES, duly executed on behalf of such BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.2 The MORTGAGE duly executed on behalf of BORROWER and in form acceptable for recording in Redwood County and Cottonwood County, Minnesota.
4.1.3 The FEE LETTER duly executed by BORROWER and delivered to ADMINISTRATIVE AGENT and BORROWER’s payment of all fees due at closing under the FEE LETTER.
4.1.4 The SECURITY AGREEMENT, duly executed on behalf of BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.5 A financing statement or statements sufficient when filed to perfect the security interests granted under the MORTGAGE, the SECURITY AGREEMENT, and the other mattersLOAN DOCUMENTS, as Ex-Im Bank may reasonably deem necessary or appropriate, including each of the documents listed in the closing checklist attached as Exhibit D hereto (to the extent not duplicative such security interests are capable of the following) and the following:
i. This Agreementbeing perfected by filing, duly executed by Borrower and Guarantors;
ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authority) of the state of Borrower’s state of organization as of a date no earlier than thirty (30) days prior to the Effective Date;
iii. duly executed original signatures to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the execution, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially in the form of Exhibit A attached hereto;
iv. certified copies, dated no earlier than thirty (30) days prior to the Effective Date, of UCC financing statement searches, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request (and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released;
v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank;
vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank;
vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder;
viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request;
ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid;
x. payment of the Exposure Fee and all other fees and expenses described herein and in the Loan Documents which are due and payable on the Effective Date, including without limitation, the fees and expenses of counsel to Ex-Im Bank;
xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and
xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s), deposit account control agreement in form and substance satisfactory acceptable to Ex-Im Bank, evidencing the Borrower’s direction COLLATERAL AGENT to pay proceeds, up perfect the BANKs’ security interest in any deposit accounts maintained by BORROWER with financial institutions other than the COLLATERAL AGENT and a securities control agreement to $400,000, under perfect any existing letter of credit naming Borrower as investment property held by a beneficiaryfinancial intermediary, including, without limitationbut not limited, to a control agreement with First National Capital Markets, Inc. and a control agreement with any commodity intermediary who maintains hedging accounts for BORROWER.
4.1.6 A copy of the Borrower’s irrevocable letter PLANS, including the PLANS prepared by XXXXX ENGINEERING certified by XXXXX ENGINEERING, DESIGN-BUILDER and BORROWER, a copy of credit issued the plans for a dewatering system which addresses soil conditions and shallow groundwater at the PROPERTY to the satisfaction of ADMINISTRATIVE AGENT and the INSPECTING ARCHITECT and a survey of and plans for the construction of the water xxxxx, water lines, natural gas lines and other lines bringing utilities to the PROJECT and a survey of the property covered by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M in the amount of EUR 533,209) to Ex-Im Bank; and
xiii. such other agreements, documents, resolutions, reports, instruments, certifications, statements, or consents as Ex-Im Bank may requireWATER EASEMENTS.
Appears in 1 contract
Samples: Construction Loan Agreement (Highwater Ethanol LLC)
Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s The obligation of each Bank to make disbursement of its portion of the initial Disbursement Loans hereunder is subject to the condition conditions precedent that Ex-Im each Bank shall have receivedreceived on or before the Closing Date all of the following, in form and substance satisfactory to Ex-Im each Bank:
(A) a copy, certified in writing as of the Closing Date by the Secretary or Assistant Secretary of each Borrower, of resolutions of the Board of Directors of each Borrower evidencing approval of this Agreement and the Note and other matters contemplated hereby;
(B) a favorable opinion of outside counsel for the Borrowers dated as of the Closing Date on such matters as the Banks shall require and in form and substance satisfactory to the Banks;
(C) a certificate dated the date hereof by the Secretary or an Assistant Secretary of each Borrower as to the names and signatures of the officers of each Borrower authorized to sign this Agreement, the Notes and the other documents or certificates of the Borrowers to be executed and delivered pursuant hereto;
(D) a Note payable to the order of each Bank;
(E) copies of the Certificate of Incorporation and Bylaws of each Borrower, certified as true, correct and complete by each Borrower's Secretary or Assistant Secretary and, with respect to charter documents, and completion of such other matters, as Ex-Im Bank may reasonably deem necessary or appropriate, including each by the appropriate governmental official of the documents listed in the closing checklist attached as Exhibit D hereto (to the extent not duplicative of the following) and the following:
i. This Agreement, duly executed by jurisdiction where such Borrower and Guarantorswas formed;
ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authorityF) of the state of Borrower’s state of organization as of a date no earlier than certificates dated within thirty (30) days prior of the Closing Date, issued by the Secretary of State (or similar official) of each jurisdiction in which each Borrower is incorporated or is qualified as a foreign corporation to do business, stating that such Borrower is a corporation duly incorporated or authorized to do business, as the case may be, and in good standing under the laws of such jurisdiction;
(G) evidence that the Borrowers have opened the Operating Account;
(H) unless this Agreement is executed on the Closing Date, a certificate of the Borrowers dated the Closing Date (with supporting evidence if required by the Banks) representing to the Effective Date;
iii. duly executed original signatures Banks that (1) the Borrowers have complied in all material respects with all applicable federal, state and local laws and regulations, including without limitation all Environmental Laws with which the failure to comply would have a Material Adverse Effect; (2) there is no pending or, to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the executionBorrowers' knowledge, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially threatened litigation which in the form of Exhibit A attached hereto;
iv. certified copiesaggregate, dated no earlier if decided against a Borrower, would result in a Material Adverse Effect; (3) other than thirty (30) days prior as previously disclosed to the Effective DateBanks in writing, no material adverse change has occurred in the financial condition of UCC financing statement searchesa Borrower since September 26, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request 1994; (4) the representations and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that warranties of the Liens indicated Borrowers contained in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released;
v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank;
vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank;
vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder;
viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request;
ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid;
x. payment of the Exposure Fee and all other fees and expenses described herein and in the other Loan Documents to which the Borrowers are due a party are correct and payable accurate on and as of the Closing Date as though made on and as of the Closing Date; and (5) no Default or Event of Default has occurred or will result from the making of the Loans;
(I) the following evidence of insurance coverage:
(1) a certificate evidencing all risk casualty insurance coverage in an amount equal to 100% of the replacement value of all improvements on the Effective DateBorrowers' real estate and inventory, including without limitation, the fees fixtures and expenses of counsel to Ex-Im Bank;
xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and
xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s)equipment, in form and substance satisfactory to Ex-Im Bank, evidencing the Borrower’s direction to pay proceeds, up to $400,000, under any existing letter of credit naming Borrower as a beneficiary, including, without limitation, the Borrower’s irrevocable letter of credit issued by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M in the amount of EUR 533,209) to Ex-Im BankBanks; and
xiii(2) a certificate of insurance issued to the Agent evidencing workmen's compensation and public liability insurance, insuring the interest of the Borrowers in amounts and in form and substance satisfactory to the Banks. such other agreementsEach policy of insurance must be issued by an insurance company satisfactory to the Banks, documentsmust have premiums therefor prepaid to not earlier than through the first quarter ending after the date of this Agreement, resolutions, reports, instruments, certifications, statements, and must provide that it will not be terminated or consents as Ex-Im Bank may require.otherwise modified adversely to the Banks without at least 30 days' prior written notice to the Banks;
(J) a lien search prepared by a search company acceptable to the Banks showing no perfected liens against any property of the Borrowers except for Permitted Encumbrances;
Appears in 1 contract
Conditions Precedent to the Initial Disbursement. Ex-Im Bank’s The obligation of BANKS to fund the TERM LOAN and make an initial Advance under the initial Disbursement REVOLVING LOAN is subject to the condition precedent precedent, unless waived by the ADMINISTRATIVE AGENT, that Ex-Im Bank ADMINISTRATIVE AGENT shall have receivedreceived on or before the CLOSING all of the following, each dated (unless otherwise indicated) the day of CLOSING, in form and substance satisfactory to Ex-Im Bank, such documentsADMINISTRATIVE AGENT:
4.1.1 This AGREEMENT, and completion the REVOLVING NOTES, TERM NOTES and other LOAN DOCUMENTS not specifically described below, duly executed on behalf of such other mattersBORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.2 The MORTGAGE duly executed on behalf of BORROWER and in form acceptable for recording in Xxxxxx County, as Ex-Im Bank may reasonably deem necessary South Dakota.
4.1.3 The FEE LETTER duly executed by BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.4 The SECURITY AGREEMENT and a SECURITY AGREEMENT AND ASSIGNMENT OF HEDGING ACCOUNTS granting the COLLATERAL AGENT a security interest in BORROWER’S commodity hedging accounts and corresponding Control Agreements, duly executed on behalf of BORROWER and delivered to ADMINISTRATIVE AGENT.
4.1.5 A financing statement or appropriatestatements sufficient when filed to perfect the security interests granted under the MORTGAGE, including each the SECURITY AGREEMENT, SECURITY AGREEMENT AND ASSIGNMENT OF HEDGING ACCOUNTS, and the assignments of the documents listed in the closing checklist attached as Exhibit D hereto (Material Contracts, to the extent not duplicative such security interests are capable of the following) and the following:
i. This Agreementbeing perfected by filing, duly executed by Borrower and Guarantors;
ii. Borrower’s Operating Documents and a good standing certificate of Borrower certified by the secretary of state (or similar authority) of the state of Borrower’s state of organization as of a date no earlier than thirty (30) days prior to the Effective Date;
iii. duly executed original signatures to the completed Borrower Resolution and Incumbency Certificate of Borrower authorizing the execution, delivery and performance of this Agreement, a loan application, notes, other agreements, indemnities, security agreements, guarantees (whether related to Borrower’s own obligations or those of others), and other instruments evidencing such loans or credit arrangements, including modifications, extensions or renewals thereof, substantially in the form of Exhibit A attached hereto;
iv. certified copies, dated no earlier than thirty (30) days prior to the Effective Date, of UCC financing statement searches, tax liens searches, utility security instrument searches, or such other certified searches as Ex-Im Bank shall request (and is hereby authorized to order at Borrower’s expense) accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such certified searches either constitute Liens permitted under this Agreement or have been or, in connection with the initial Disbursement, will be terminated or released;
v. certified copies of UCC financing statements or such other similar filing receipts or acknowledgements issued by a Government Authority evidencing any filing or recordation necessary to perfect the Liens of Ex-Im Bank in the Collateral in form satisfactory to Ex-Im Bank;
vi. the insurance policies and/or endorsements required pursuant to Section 6(d) hereof and evidence satisfactory to Ex-Im Bank that the insurance policies required by Section 6(d) hereof remain in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Ex-Im Bank;
vii. receipt by Ex-Im Bank from any existing creditor of the Borrower of consent letters, in form satisfactory to Ex-Im Bank, evidencing the consent of such creditor to this Agreement, the pledge of the collateral, and the making and repayment of the Disbursements hereunder;
viii. receipt by Ex-Im Bank of a completed Application with such documents, financial statements and other evidence that Ex-Im Bank may request;
ix. receipt by Ex-Im Bank of a completed Letter of Direction in the form of Exhibit E specifying to whom and in what amount the proceeds of the initial Disbursement are to be paid;
x. payment of the Exposure Fee and all other fees and expenses described herein and in the Loan Documents which are due and payable on the Effective Date, including without limitation, the fees and expenses of counsel to Ex-Im Bank;
xi. receipt by Ex-Im Bank of an anti-lobbying certificate, in the form of Exhibit F attached hereto; and
xii. receipt by Ex-Im Bank of irrevocable direction to pay proceeds agreement(s), deposit account control agreement in form and substance satisfactory acceptable to Exthe ACCOUNTS BANK to perfect the ACCOUNTS BANK’s security interest in any deposit accounts maintained by BORROWER with financial institutions other than the ACCOUNTS BANK and a securities control agreement to perfect any investment property held by a financial intermediary.
4.1.6 An ALTA/ACSM Land Title Survey prepared in accordance with the current accuracy standards jointly adopted by ALTA (American Land Title Association), ACSM (American Congress on Surveying and Mapping) and NSPS (National Society of Professional Surveyors) together with optional survey requirements #2 (vicinity map showing the property surveyed in reference to nearby highway(s) or major street intersections); #6 (identify setbacks); #7 (identify exterior dimensions of all existing and proposed buildings “As-Im BankBuilt”, evidencing including square footage of exterior footprint of all buildings, gross floor area of all buildings); and #11 (location of utilities). The survey shall show the Borrowerlocation of all easements and encroachments onto or from the PROPERTY that are visible on the PROPERTY, known to the surveyor preparing the survey or of record, identifying easements of record by recording data. Such surveyor shall certify there are no easements or encroachments upon the PROPERTY except as shown on the survey.
4.1.7 An appraisal to be performed by Xxxxxxx Associates Appraisal Services which shows the as-completed value of the PROPERTY and PROJECT addressed to and otherwise acceptable to ADMINISTRATIVE AGENT.
4.1.8 A title commitment from Commercial Partners Title, LLC as agent of Xxxxxxx Title Guaranty Company (the “TITLE COMPANY”) at BORROWER’s direction expense, constituting a commitment by the TITLE COMPANY to pay proceedsissue a mortgagee’s title policy in favor of COLLATERAL AGENT as mortgagee under the MORTGAGE that will be free from all standard exceptions, up including mechanics’ liens and all other exceptions not previously approved by AGENT and that will insure the MORTGAGE to $400,000, under any existing letter of credit naming Borrower be a valid first lien on the PROPERTY. Such loan policy shall include additional endorsement coverage as a beneficiarymay be reasonably requested by AGENT, including, without limitation, the Borrowerfollowing ALTA endorsement forms: ALTA Endorsement Form 3.1 Zoning-Improved Land ALTA Endorsement Form 6 Variable Rate Mortgage ALTA Endorsement Form 8.1 Environmental Xxxx XXXX Endorsement Form 9 Comprehensive ALTA Endorsement Form 27 Usury ALTA Endorsement Form 16 Access ALTA Endorsement Form 14 Future Advance ALTA Endorsement Form 19 Contiguity ALTA Endorsement Form 26 Subdivision Deletion of Arbitration Endorsement ALTA Endorsement Form 17.2 Utility Access covering water, natural gas, telephone, electrical power, sanitary sewer, storm water drainage Contiguity Endorsement ALTA Endorsement Form 18 Tax Parcel ALTA Endorsement Form 20 First Loss
4.1.9 A Phase I Environmental Report of the PROPERTY, as well as any subsequent Environmental Site Assessments issued prior to CLOSING, and such other environmental testing and due diligence as may be reasonably required by ADMINISTRATIVE AGENT, all in form and content satisfactory to ADMINISTRATIVE AGENT and establishing the environmental condition of the PROPERTY as satisfactory to ADMINISTRATIVE AGENT.
4.1.10 Copies of all PERMITS from the applicable regulatory agencies from whom a permit or license is required as of the then current stage of the PROJECT.
4.1.11 Copies of documents from the appropriate state, federal, city or county authority having jurisdiction over the PROPERTY and the PROJECT that provide to the reasonable satisfaction of ADMINISTRATIVE AGENT that the PROJECT and the contemplated use thereof are permitted by and comply in all material respects with all applicable use or other restrictions and requirements in prior conveyances, zoning ordinances, environmental laws and regulations, water shed district regulations and all other applicable laws or regulations, and GOVERNMENTAL AUTHORITIES having jurisdiction over the PROJECT.
4.1.12 Copies of certificates of insurance demonstrating the types, levels, deductibles, endorsements and other coverage parameter issues to the satisfaction of ADMINISTRATIVE AGENT for all risk property insurance, commercial general liability, an umbrella policy, business automobile liability insurance, environmental liability insurance, worker’s irrevocable letter compensation insurance, and the other insurance required in this AGREEMENT, all as required under Section 5.3.1 of credit issued this AGREEMENT, with all such insurance in full force and effect and approved by Union Bank (the Advising Bank on the ING Bank N.V. Documentary Letter of Credit L/C - E323396M ADMINISTRATIVE AGENT, in the amount exercise of EUR 533,209) its reasonable discretion, and naming ADMINISTRATIVE AGENT as an additional insured and loss payee together with appropriate flood insurance, if the PROPERTY is in a flood hazard area. In addition, BORROWER shall provide to ExADMINISTRATIVE AGENT proof of insurance for business interruption/extra expense coverage for six months of operating expenses, and also Directors/Officers coverage of no less than $5,000,000.00.
4.1.13 A signed opinion of counsel for BORROWER, addressed to AGENT but for the benefit of and reliance upon by the BANKS, in form and substance acceptable to AGENT and AGENT’s counsel.
4.1.14 A Secretary’s Certificate executed by such person or persons authorized by BORROWER’s organizational documents and/or agreements to do so, certifying the incumbency and signatures of the officers or other persons authorized to execute the LOAN DOCUMENTS to which it is a party, and resolutions or consents authorizing the execution of the LOAN DOCUMENTS to which it is a party and performance in accordance with their terms.
4.1.15 A recently certified copy of BORROWER’s Operating Agreement, and any amendments thereto.
4.1.16 A recently certified copy of BORROWER’s Articles of Organization and any amendments thereto.
4.1.17 A certificate of good standing for BORROWER from the office of the South Dakota Secretary of State.
4.1.18 A copy of each Material Contract together with assignments thereof in favor of AGENT and consents thereto in form satisfactory to AGENT, as well as control agreements reasonably requested by AGENT, and with the management fees in the Management Contract subordinated to the payment of the LOANS, in form reasonably acceptable to AGENT.
4.1.19 The obligations and INDEBTEDNESS of BORROWER to Xxxxxxxxx Funding LLC and all liens securing such INDEBTEDNESS shall be terminated and released.
4.1.20 AGENT shall have received a duly executed Borrowing Base Certificate dated as of the BANKING DAY preceding the CLOSING.
4.1.21 AGENT has received all fees and other amounts due and payable on or prior to the CLOSING, including the Origination Fee and fees described in the FEE LETTER due at CLOSING, and amounts for reimbursement or payment of all out-Im Bank; and
xiii. such of-pocket expenses required to be reimbursed or paid by BORROWER pursuant to this AGREEMENT, under any other agreements, documents, resolutions, reports, instruments, certifications, statementsLOAN DOCUMENT, or any other agreement with AGENT or BANKS.
4.1.22 AGENT has received copies of favorable UCC, tax, judgment, bankruptcy and fixture lien search reports (or other evidence of the same satisfactory to AGENT) in all necessary or appropriate jurisdictions and under all legal and trade names of BORROWER and all other parties requested by AGENT, indicating that there are no prior liens on any of the COLLATERAL other than Permitted Liens;
4.1.23 Evidence satisfactory to AGENT that all necessary utilities are available to the PROJECT, and a copy of each executed Utility Contract and the assignments thereof and consents thereto required in this AGREEMENT and the other LOAN DOCUMENTS, all of the foregoing in form and substance acceptable to AGENT.
4.1.24 Such other matters as Ex-Im Bank AGENT may reasonably require. In the event AGENT waives any of the foregoing conditions precedent to the initial advance, BORROWER agrees to take all steps required to satisfy the same within thirty (30) days of the funding of the initial Advance or funding of the TERM LOAN and further agrees that failure to do so within such thirty (30) day period shall constitute an EVENT OF DEFAULT.
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