Conditions to Loan. The agreement of the Lender to extend the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent: (a) The Lender shall have received each of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender: (i) duly executed counterparts of this Agreement, (ii) the Security Agreement, duly executed by the Borrower, together with: (A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank. (B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and (C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search; (iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed; (v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and (vi) a Loan Notice. (b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5. (c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect. (d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender. (e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained). (f) The Lender shall have received the initial Budget. (g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act. (h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date. (i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (Americanwest Bancorporation)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfactionLender's receipt of the following, prior to on or concurrently with the making of such extension of credit on before the Closing Date, each dated the date of the following conditions precedent:
(a) The Lender shall have received each Loan or as of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) acknowledgment copies of Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of the Lender, a perfected first priority lien on the Collateral, subject only to Permitted Liens;
(iii) a Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) an Intellectual Property Security Agreement, in form and substance satisfactory to the Lender and its counsel, duly executed by the Borrower, specifically identifying and granting to the Lender a security interest in all of the Borrower's intellectual property;
(v) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(vi) a Notice of Security Interest, in form and substance satisfactory to the Lender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vii) the warrants described in the Commitment Letter, if any;
(viii) certificates of insurance required under Section 5.4 of this Agreement together with:with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) certificates representing that attached to the Pledged Interests referred to Secretary's Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the Security Agreement accompanied by undated stock powers executed execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in blank full force and instruments evidencing the Pledged Debt indorsed in blank.
effect; (B) acknowledgment copies or stamped receipt copies the incumbency, names, and true signatures of proper financing statements, duly filed on or before the Closing Date under officers of the Uniform Commercial Code of all jurisdictions that Borrower authorized to sign the Lender may reasonably deem necessary in order Loan Documents to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
which it is a party; (C) copies of Uniform Commercial Code, tax and judgment lien searches with respect that attached to the Borrower in each Secretary's Certificate is a true and correct copy of the jurisdictions where Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is located (within the meaning of Section 9-307 a true and correct copy of the New York UCC Bylaws, as amended, which Bylaws of the Company have not been further modified, repealed or rescinded and are in full force and effect; and (E) that attached to the corresponding code or statute Secretary's Certificate is a valid Certificate of any other applicable jurisdiction), dated on or before Good Standing issued by the Closing Date, together with copies Secretary of all such filings disclosed by such searchthe State of the Borrower's state of incorporation;
(iiix) such duly executed certificates the opinion of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require evidencing require;
(xi) evidence of the identityconsent or authorization of, filing with or other act by or in respect of any governmental agency or authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer or any other Person required in connection with the execution, delivery, performance, validity or enforceability of this Agreement and Agreement, or the other Loan Documents;
(iv) such documents and duly executed certifications as Documents or the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer consummation of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance transactions contemplated hereby or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effectthereby; and
(vixii) a Loan Noticesuch other documents, agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable security interests in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies Collateral granted in favor of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order this Agreement shall have been entered by the Bankruptcy Court, shall be in full force and effect duly perfected and shall not have been amendedconstitute first priority liens, modified, stayed or reversed without the prior written consent of the Lenderexcept for Permitted Liens.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Loan and Security Agreement (Genaissance Pharmaceuticals Inc)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The Lender shall have received each Lender's receipt of the following, each dated the date of which shall be originals the making of the Loan or telecopies (followed promptly by originals), each dated on or prior as of an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and
(ii) Uniform Commercial Code financing statements (Form UCC-1) duly executed by the Security Borrower (naming the Lender as secured party and the Borrower as debtor and in form acceptable for filing in all jurisdictions that the Lender deems necessary or desirable to perfect the security interests granted to it hereunder) and, if applicable, termination statements or other releases duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the priority of the security interests granted to it hereunder;
(iii) the Lockbox Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan DocumentsWellx Xxxgo Bank;
(iv) such documents and the Intellectual Property Assignment, duly executed certifications as by the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formedBorrower;
(v) the Note, duly executed by the Borrower;
(vi) a notification letter from the Borrower to SBCL, substantially in the form of Exhibit C, duly executed by the Borrower (which shall not be delivered by the Lender to SBCL except during the continuance of an Event of Default);
(vii) a copy of the SBCL License, attached to which is a certificate signed by of the Secretary or an Assistant Secretary of the Borrower certifying that such copy is true, complete and accurate and contains any and all amendments thereto;
(viii) certificates of insurance required under Section 5.4 of this Security Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a Responsible Officer copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the execution, delivery, and performance of this Security Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that the conditions specified copy of the resolutions is true, complete, and accurate, and that 8 such resolutions have not been amended or modified since the date of such certification and are in Sections 4.1(i) full force and (j) have been satisfied effect and (B) as the incumbency, names, and true signatures of the Closing Dateofficers of the Borrower authorized to sign the Loan Documents to which it is a party;
(x) the opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Security Agreement as the Lender may reasonably require; and
(xi) such other agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) There shall be no pending or, since September 30to the knowledge of the Borrower after due inquiry, 2010threatened litigation, there has been no changeproceeding, eventinquiry, circumstance or development thatother action (i) seeking an injunction or other restraining order, individually damages, or other relief with respect to the transactions contemplated by this Security Agreement or the other Loan Documents or (ii) which affects or could affect the business, prospects, operations, assets, liabilities, or condition (financial or otherwise) of the Borrower, except, in the aggregatecase of clause (ii), has had where such litigation, proceeding, inquiry, or would reasonably other action could not be expected to have a Material Adverse Effect; and
(vi) a Loan NoticeEffect in the judgment of the Lender.
(bc) The Borrower shall have paid all accrued fees and expenses of required to be paid by it to the Lender (including the reasonable and documented fees and expenses as of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effectsuch date.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by of the Borrower contained in or pursuant to this Security Agreement and the other Loan Documents shall be true and correct on and as of such the date as if made on and as of such datethe making of the Loan.
(ie) No Event of Default or event which with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing on such date or after giving effect to would result from the extensions making of credit requested to be made on such datethe Loan.
Appears in 1 contract
Samples: Security Agreement (Progenitor Inc)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfactionLender's receipt of the following, prior to on or concurrently with the making of such extension of credit on before the Closing Date, each dated the date of the following conditions precedent:
(a) The Lender shall have received each Loan or as of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) acknowledgment copies of Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of the Lender, a perfected first priority Lien on the Collateral;
(iii) a Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) an Intellectual Property Security Agreement, in form and substance satisfactory to the Lender and its counsel, duly executed by the Borrower, specifically identifying and granting to the Lender a security interest in all of the Borrower's intellectual property;
(v) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(vi) a Notice of Security Interest, in form and substance satisfactory to the Lender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vii) the warrants described in the Commitment Letter, if any;
(viii) certificates of insurance required under Section 5.4 of this Agreement together with:with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) certificates representing that attached to the Pledged Interests referred to Secretary's Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the Security Agreement accompanied by undated stock powers executed execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in blank full force and instruments evidencing the Pledged Debt indorsed in blank.
effect; (B) acknowledgment copies or stamped receipt copies the incumbency, names, and true signatures of proper financing statements, duly filed on or before the Closing Date under officers of the Uniform Commercial Code of all jurisdictions that Borrower authorized to sign the Lender may reasonably deem necessary in order Loan Documents to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
which it is a party; (C) copies of Uniform Commercial Code, tax and judgment lien searches with respect that attached to the Borrower in each Secretary's Certificate is a true and correct copy of the jurisdictions where Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is located (within the meaning of Section 9-307 a true and correct copy of the New York UCC Bylaws, as amended, which Bylaws of the Company have not been further modified, repealed or rescinded and are in full force and effect; and (E) that attached to the corresponding code or statute Secretary's Certificate is a valid Certificate of any other applicable jurisdiction), dated on or before Good Standing issued by the Closing Date, together with copies Secretary of all such filings disclosed by such searchthe State of the Borrower's state of incorporation;
(iiixi) such duly executed certificates the opinion of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require evidencing require;
(xii) evidence of the identityconsent or authorization of, filing with or other act by or in respect of any governmental agency or authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer or any other Person required in connection with the execution, delivery, performance, validity or enforceability of this Agreement and Agreement, or the other Loan Documents;
(iv) such documents and duly executed certifications as Documents or the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer consummation of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance transactions contemplated hereby or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effectthereby; and
(vixiii) a Loan Noticesuch other documents, agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable security interests in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies Collateral granted in favor of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order this Agreement shall have been entered by the Bankruptcy Court, shall be in full force and effect duly perfected and shall not have been amendedconstitute first priority liens, modified, stayed or reversed without the prior written consent of the Lenderexcept for Permitted Liens.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Conditions to Loan. The agreement of the Lender to extend the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the First Advance Closing Date, of the following conditions precedent:
(a) The Lender shall have received each of the following, each of which shall be originals or telecopies (followed promptly by originals), following each dated on or prior to the First Advance Closing Date (or, in the case of certificates of governmental officials, a recent date before the First Advance Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iviii) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(viv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the First Advance Closing Date, since September 30, 2010the date on which the Borrower commenced the Case, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(viv) a Loan Notice.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(dc) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(ed) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(he) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date.
(if) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit and Security Agreement (Crumbs Bake Shop, Inc.)
Conditions to Loan. The agreement obligation of the Lender to extend amend and restate the Existing Loan and thereby establish the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making shall become effective only upon satisfaction of such extension of credit on the Closing Date, each of the following conditions precedentprecedent on or before October 18, 2010 unless the Agent shall otherwise agree in writing:
(a) 4.1.1 The Lender Agent shall have received each of the following:
(a) A counterpart original of this Agreement, duly executed by the Borrower and each Lender.
(b) The other Loan Documents required by the Agent for the Loan, duly executed by the Borrower or non-Borrower accommodation party, as required, including without limitation, the Deed of which shall be originals or telecopies Trust, the Pledge Agreement - Membership Interests, the Second Amended and Restated Security Agreement, the Environmental Compliance Agreement, the Guaranty, the Deposit Account Security Agreement, the Deposit Account Security Agreement-Blocked, the Notice of Collateral Assignment of Deed of Trust).
(followed promptly by originals)c) The following, each dated on or prior all subject to the Closing Date Agent's approval pursuant to Agent’s Discretion: (i) a Phase I site assessment report or, at Agent’s Discretion, Phase II site assessments, transactional screens, or other environmental reports as may be requested, for all REO subject to any REO Deed of Trust; (ii) evidence acceptable to Agent of property and casualty insurance (including flood insurance where applicable) and general liability insurance relating to each REO property with lender loss payee endorsements, and additional insured endorsements in favor of Agent for Lenders in the case of certificates all REO encumbered with an REO Deed of governmental officialsTrust in favor of Agent; and (iii) Flood Zone Certifications.
(d) All of the Pledged Loans and Pledged Loan Collateral included in the Collateral shall be duly endorsed or assigned (as applicable) to Agent, for the benefit of Lenders, and delivered to Agent’s designated offices.
(e) A copy of the Borrower’s (i) partnership agreement and all amendments thereto certified by Xxxxxxx and (ii) Certificate of Limited Partnership, together with copies of any amendments thereto, certified by the California Secretary of State as having been filed in such office.
(f) Copies of the articles of incorporation and all amendments thereto, certified as of a recent date before by the California Secretary of State, and the bylaws and all amendments thereto certified by the corporate secretary of each of the corporate General Partners.
(g) A true, complete and correct copy of the certificates, resolutions or other evidence satisfactory to the Lender of necessary actions taken by the Borrower and the corporate General Partners authorizing the execution, delivery and performance of this Agreement and, as applicable, the other Loan Documents.
(h) A certification by the Borrower of the name and signature of each individual Authorized Officer authorized to sign the Loan Documents and Collateral Covenant Certificates and other certificates of Borrower required hereunder.
(i) Payment of the Quarterly Facility Fee due October 1, 2010 in the sum of $33,231.25 which is equal to $63,231.25 less $30,000.00 credit for Forbearance Fee paid in connection with the Fourth Extension, provided that if the Closing Date occurs after October 18, 2010, such credit will not be allowed and the Quarterly Facility Fee due October 1, 2010 shall be $63,231.25 in full regardless of the actual Closing Date.
(j) each Payment of the Quarterly Collateral Agent Fee due October 1, 2010 in the sum of $18,969.38.
(k) Payment for all outstanding Lender Expenses.
(l) A true, complete and correct copy of the Loan Servicing Agreement in the form of Exhibit 6.3-l and Exhibit A thereto in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security AgreementAgent, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank Borrower and instruments evidencing the Pledged Debt indorsed in blankRMC.
(Bm) acknowledgment copies Agent shall have reviewed, to its satisfaction the Borrower’s: (i) monthly cash flow projections for calendar 2010 and 2011; (ii) receipt of either an Appraised Market Valuation or stamped receipt copies of proper financing statementsa Desk Top Valuation, duly filed as applicable, on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described real estate included in the Security AgreementEligible Senior Mortgage Note Collateral Amount or Eligible REO Collateral Amount (except that no Appraised Market Valuation shall be required if a Desk Top Market Valuation is permissible under Section 2.5.1(b) above, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) to the extent in Borrower’s possession or control and only as such duly executed certificates information becomes available to Borrower, detail of resolutions or consents, incumbency certificates and/or expenses Borrower has indicated in cash flow statements submitted to Agent that are required to maintain and improve REO and other duly executed certificates of Responsible Officers of the real property owned by Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan NoticeWholly Owned Subsidiaries.
(b) The Borrower shall have paid all accrued fees and expenses 4.1.2 Each REO Deed of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant Trust required to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby be delivered hereunder shall have been obtained (without properly recorded in the imposition official records of any conditions that are not reasonably acceptable county where the real property encumbered thereby is located, and, where required hereunder, insured by an ALTA Lender’s Extended Loan Policy 2006 issued by First American Title Insurance Company to Agent for the Lender) and benefit of Lenders with such endorsements as Agent shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired withoutrequire, in either case, any action being taken by any Governmental Authorityan insured amount equal to 70% of the Appraised Market Value of the encumbered Property, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender subject only to such relief therein exceptions as Agent shall be deemed to have been obtainedapprove in its reasonable discretion (each, a “REO Lender Title Policy”).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each 4.1.3 All of the representations and warranties made by of the Borrower set forth in or pursuant to Articles V and VI and elsewhere in the Loan Documents shall be true and correct on and as of such date as if made on and as of such datecorrect.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfactionLender's receipt of the following, prior to on or concurrently with the making of such extension of credit on before the Closing Date, each dated the date of the following conditions precedent:
(a) The Lender shall have received each Loan or as of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) acknowledgment copies of Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly fried in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of the Lender, a perfected first priority Lien on the Collateral;
(iii) a Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) an Intellectual Property Security Agreement, in form and substance satisfactory to the Lender and its counsel, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred specifically identifying and granting to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary a security interest in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each all of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formedBorrower's intellectual property;
(v) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(vi) a Notice of Security Interest, in form and substance satisfactory to the Lender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vii) the warrants described in the Commitment Letter, if any;
(viii) certificates of insurance required under Section 5.4 of this Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a certificate signed by a Responsible Officer of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) that attached to the conditions specified in Sections 4.1(i) Secretary's Certificate is a true, complete, and (j) have been satisfied and (B) as accurate copy of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(b) The Borrower shall have paid all accrued fees and expenses resolutions of the Lender Board of Directors of the Borrower (including or a unanimous consent of directors in lieu thereof) authorizing the reasonable execution, delivery, and documented fees performance of this Agreement, the other Loan Documents, and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authoritythereby, and no law that such resolutions have not been amended or regulation shall be applicable in modified since the reasonable judgment date of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery such certification and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Court, shall be are in full force and effect effect; (B) the incumbency, names, and shall not have been amended, modified, stayed or reversed without the prior written consent true signatures of the Lender.
(e) All officers of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory Borrower authorized to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.sign the
Appears in 1 contract
Conditions to Loan. The agreement Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, Lender shall not be obligated to extend make the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, first Revolving Credit Advance hereunder until each of the following conditions precedentis satisfied (on or before the date specified below) and, where required, Borrower shall have delivered the required document or other documentation on the date indicated below, each dated as of the date indicated below, to Lender, all in substantially the form set forth as an exhibit hereto or to one of the other Loan Documents or otherwise in form and substance satisfactory to Lender (unless otherwise indicated) each dated the date hereof:
(a) The Lender shall have received each Note made payable to the order of Lender, duly executed by Borrower;
(b) The Mortgages, duly executed by Borrower and acknowledged and recorded:
(c) The Security Agreement, duly executed and delivered by Borrower, the followingTrademark Security Agreement, each of which shall be originals or telecopies duly executed by Borrower, the Pledge and Security Agreement (followed promptly by originalsBorrower), each dated on or prior to duly executed by Borrower, the Closing Date Pledge and Security Agreement (Guarantor), duly executed by Guarantor, together with evidence that all other actions necessary or, in the case opinion of certificates Lender, desirable to perfect and protect the security interests and Liens created by the Collateral Documents will be taken;
(d) The Guaranty, duly executed and delivered by Guarantor;
(e) The Tri-Party Agreement duly executed by Borrower and the Title Company;
(f) The Hazardous Substance Indemnity Agreement, duly executed by Borrower and Guarantor;
(g) Favorable opinions of governmental officialsXxxxxxx and Xxxxxxxx, a recent date before counsel to the Closing Date) Loan Parties, and of Arizona counsel and Michigan counsel to the Loan Parties, it being understood that to the extent that such opinion shall rely upon any other opinion of counsel, each such other opinion shall be in form and substance satisfactory to the Lender and in such number of copies as shall provide that Lender may be requested rely thereon;
(h) Instruction letter to the Concentration Bank, duly executed by Borrower and the Lender:respective banks;
(i) duly executed counterparts Letter agreement from each bank holding a Disbursement Account, waiving any rights of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such searchoffset;
(iiij) such duly executed certificates of resolutions or consentsGovernmental certificates, incumbency certificates and/or dated the most recent practicable date prior to the date hereof, with telegram updates where available, showing that Borrower and each other duly executed certificates of Responsible Officers of the Borrower Loan Party as the Lender may reasonably require evidencing the identityrequest, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where of its organization and is qualified as a foreign corporation or partnership and in good standing in all other jurisdictions in which it is formedqualified to transact business;
(k) Evidence that ALTA Loan Policies of Title Insurance, in form and content acceptable to Lender, have been issued with respect to the Eligible Collateral;
(l) Evidence that all regulatory approvals and third-party consents necessary to permit Borrower to consummate the transactions contemplated hereby have been obtained;
(m) Payment of the Commitment Fee, the Availability Fee and the Administration Fee, pursuant to Sections 2.7 and 2.8;
(n) Evidence that Borrower has established cash control systems and taken other steps required under Section 2.9 hereof;
(o) A copy of the organizational charter and all amendments thereto of Borrower and each other Loan Party as Lender may request, certified as of a recent date by the Secretary of State of the jurisdiction of its organization, and copies of each Loan Party's by-laws, certified by the Secretary or Assistant Secretary of such Loan Party as true and correct as of the date hereof;
(p) Certificates of the Secretary or an Assistant Secretary of Borrower and each other Loan Party as Lender may request, as to the incumbency and signatures of the officers of such Loan Party executing this Agreement, the Guaranty and any of the Loan Documents and other Ancillary Agreements and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the incumbency of such Secretary or Assistant Secretary.
(q) The Projections and the pro forma consolidated financial statements referred to in Sections 4.5 and 4.6, each certified by the chief financial officer of Borrower;
(r) A certificate of Borrower executed by the chief executive officer of Borrower, satisfactory in form and substance to Lender, stating that, as of the date hereof, to the best of his knowledge, except as set forth in Schedule 4.5(d), no material adverse change has occurred in the business, assets, operations, prospects, or financial or other condition of Borrower taken as a whole since March 31, 1995;
(s) A certificate of Borrower executed by the chief executive officer of Borrower, satisfactory in form and substance to Lender, stating that all of the representations and warranties of the Loan Parties contained herein or in any of the Loan Documents are correct, and, except as set forth on Schedule 4.8, no event has occurred and is continuing, or would result from the Loan, which constitutes or would constitute a Default or an Event of Default;
(t) Evidence that the insurance policies provided for in Section 6.7 are in full force and effect, certified by the issuer thereof, together with appropriate evidence showing a loss payable clause in favor of Lender and a clause whereby Lender receives 30-day notice of cancellation, non-renewal or material change;
(u) A copy of each agreement or plan or, if not available, a summary thereof, providing for employment, severance, deferred payments, bonus payments or accruals, profit sharing arrangements, stock option or stock appreciation rights, incentive payments, pension or employment benefit contributions or similar payments or arrangements for the benefit of Borrower's management personnel, in form and substance as has been approved by Lender;
(v) a certificate signed To the extent no already advanced by a Responsible Officer Borrower, payment by Borrower of the Borrower certifying all (Ai) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(b) The Borrower shall have paid all accrued reasonable fees and expenses of (a) Lender's outside counsel, (b) all special local counsel retained in connection with any of the Lender (including Loan Documents and the reasonable and documented fees and expenses of Skaddentransactions contemplated thereby, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations all appraisers or asset valuators retained in connection with any of the Loan Documents and all third party consents the transactions contemplated thereby, and approvals necessary (ii) other reasonable costs and expenses incurred by Lender in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable negotiation, documentation, closing or other activities undertaken with respect to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant ;
(w) A copy of each loan contract and material agreement of the Borrower and each Guarantor has been made available to any Regulatory Directive shall have Lender, each of which has been obtained (without the imposition of any burdensome conditions on reviewed by Lender with results satisfactory to Lender;
(x) the executionThe Operating Protocol, delivery and performance of the Loan Documents or duly executed by Borrower;
(y) the exercise Evidence satisfactory to Lender that each Affiliate or other party which is transferring any property to Borrower concurrent with this Agreement is solvent, is not rendered insolvent by reason of any rights or remedies of the Lender under the Loan Documents) such transfer, and shall remain in effectis receiving reasonably equivalent value for such transfer.
(dz) The Order shall have been entered by the Bankruptcy CourtSuch additional information and materials as Lender may reasonably, shall be and in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory a timely manner with due regard to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing scheduled Funding Date, all documentation request, including, without limitation, copies of any debt agreements, security agreements and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Actmaterial contracts.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Conditions to Loan. The agreement Notwithstanding the foregoing, the obligation of the Lender to extend disburse the Loan requested to be made by it Borrower is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, satisfaction of the following conditions precedentconditions:
(a) The Lender Borrower shall have received each obtained (and shall have provided copies thereof to Lender) all waivers, consents or approvals, if any, from third parties, and shall have given all notices to third parties, and the failure of which to obtain or to give notice would result in a conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or cancel, or require any notice, consent or waiver under, any contract or instrument to which Borrower or any of its subsidiaries is a party or by which Borrower or any of its subsidiaries is bound or to which any of their assets is subject, except for any conflict, breach, default, acceleration, termination, modification or cancellation in any contract or instrument which would not have a Company Material Adverse Effect (as hereinafter defined) and would not adversely affect the consummation of the followingLoan or the other transactions contemplated hereby, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior including but not limited to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan NoticeMerger.
(b) The Those stockholders of Borrower listed on Schedule 1 to the Pledge Agreement (defined below) beneficially owning in the aggregate 6,332,042 shares of the capital stock of the Borrower (the “Borrower Control Shares”) shall have paid all accrued fees entered into a pledge agreement of even date herewith, substantially in the form attached as Exhibit B to this Agreement (the “Pledge Agreement”) with the Lender and expenses Gottbetter & Partners, LLP as collateral agent (the “Collateral Agent”) pursuant to which such stockholders shall have pledged to, and deposited with, the Collateral Agent the Borrower Control Shares, for the benefit of the Lender purchasers of the Convertible Notes in the Note Offering (including the reasonable “Buyers”), as security for the full and documented fees and expenses timely repayment of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5Convertible Notes in accordance with the terms of the Convertible Notes.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby Borrower shall have been obtained (without the imposition entered into a security agreement of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired withouteven date herewith, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable substantially in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant form attached as Exhibit C to any Regulatory Directive shall have been obtained this Agreement (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to Security Agreement”) with the Lender and the Collateral Agent pursuant to which Borrower andshall have granted and conveyed to the Collateral Agent, for the benefit of the Buyers, a first priority security interest in all of the tangible and intangible assets of Borrower now owned or hereafter acquired by Borrower, as entered, shall not deviate from security for the form thereof approved by the Lender in any material respect which is adverse to the interests full and timely repayment of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to Convertible Notes in accordance with the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent terms of the Lender to such relief therein shall be deemed to have been obtained)Convertible Notes.
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Bridge Loan Agreement (Cahaba Pharmaceuticals, Inc.)
Conditions to Loan. The agreement Notwithstanding the foregoing, the obligation of the Lender to extend disburse the Loan requested to be made by it Borrower is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, satisfaction of the following conditions precedentconditions:
(a) The Lender Borrower shall have received each obtained (and shall have provided copies thereof to Lender) all waivers, consents or approvals, if any, from third parties, and shall have given all notices to third parties, and the failure of which to obtain or to give notice would result in a conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of obligations under, create in any party the right to terminate, modify or cancel, or require any notice, consent or waiver under, any contract or instrument to which Borrower or any of its subsidiaries is a party or by which Borrower or any of its subsidiaries is bound or to which any of their assets is subject, except for any conflict, breach, default, acceleration, termination, modification or cancellation in any contract or instrument which would not have a Company Material Adverse Effect (as hereinafter defined) and would not adversely affect the consummation of the followingLoan or the other transactions contemplated hereby, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior including but not limited to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan NoticeMerger.
(b) The Those stockholders of Borrower listed on Schedule 1 to the Pledge Agreement (defined below) beneficially owning in the aggregate one million shares of the capital stock of the Borrower on a fully converted basis (such shares constituting the “Borrower Control Shares”) shall have paid all accrued fees entered into a pledge agreement of even date herewith (the “Pledge Agreement”) with the Lender and expenses Gottbetter & Partners, LLP as collateral agent (the “Collateral Agent”) pursuant to which such stockholders shall have pledged to, and deposited with, the Collateral Agent the Borrower Control Shares, for the benefit of the Lender investors in the Note Offering (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5“Buyers”).
(c) All governmental authorizations and all third party consents and approvals necessary in connection Borrower shall have entered into a security agreement of even date herewith with the transactions contemplated hereby Buyers pursuant to which Borrower shall have been obtained (without the imposition of any conditions that are not reasonably acceptable granted and conveyed to the Lender) Buyers a security interest in all of the tangible and shall remain intangible assets of Borrower now owned by Borrower, as security for the full and timely repayment of the Convertible Notes in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection accordance with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment terms of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effectConvertible Notes.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Bridge Loan Agreement (Federal Sports & Entertainment, Inc.)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfactionLender's receipt of the following, prior to on or concurrently with the making of such extension of credit on before the Closing Date, each dated the date of the following conditions precedent:
(a) The Lender shall have received each Loan or as of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-l1) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) acknowledgment copies of Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of the Lender, a perfected first priority Lien on the Collateral;
(iii) a Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) an Intellectual Property Security Agreement, in form and substance satisfactory to the Lender and its counsel, duly executed by the Borrower, specifically identifying and granting to the Lender a security interest in all of the Borrower's intellectual property;
(v) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(vi) a Notice of Security Interest, in form and substance satisfactory to the Lender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vii) the warrants described in the Commitment Letter, if any;
(viii) certificates of insurance required under Section 5.4 of this Agreement together with:with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) certificates representing that attached to the Pledged Interests referred to Secretary's Certificate is a tine, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the Security Agreement accompanied by undated stock powers executed execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in blank full force and instruments evidencing the Pledged Debt indorsed in blank.
effect; (B) acknowledgment copies or stamped receipt copies the incumbency, names, and true signatures of proper financing statements, duly filed on or before the Closing Date under officers of the Uniform Commercial Code of all jurisdictions that Borrower authorized to sign the Lender may reasonably deem necessary in order Loan Documents to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
which it is a party; (C) copies of Uniform Commercial Code, tax and judgment lien searches with respect that attached to the Borrower in each Secretary's Certificate is a true and correct copy of the jurisdictions where Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is located (within the meaning of Section 9-307 a true and correct copy of the New York UCC Bylaws, as amended, which Bylaws of the Company have not been further modified, repealed or rescinded and are in full force and effect, and (F) that attached to the corresponding code or statute Secretary's Certificate is a valid Certificate of any other applicable jurisdiction), dated on or before Existence issued by the Closing Date, together with copies Secretary of all such filings disclosed by such searchthe State of the Borrower's state of incorporation;
(iiixi) such duly executed certificates the opinion of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require evidencing require;
(xii) evidence of the identityconsent or authorization of, filing with or other act by or in respect of any governmental agency or authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer or any other Person required in connection with the execution, delivery, performance, validity or enforceability of this Agreement and Agreement, or the other Loan Documents;
(iv) such documents and duly executed certifications as Documents or the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer consummation of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance transactions contemplated hereby or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effectthereby; and
(vixiii) a Loan Noticesuch other documents, agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable security interests in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies Collateral granted in favor of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order this Agreement shall have been entered by the Bankruptcy Court, shall be in full force and effect duly perfected and shall not have been amendedconstitute first priority liens, modified, stayed or reversed without the prior written consent of the Lenderexcept for Permitted Liens.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Loan and Security Agreement (Paradigm Genetics Inc)
Conditions to Loan. The agreement Satisfaction of or waiver by Lender of each of the Lender following requirements shall be conditions precedent to extend the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, each Advance:
5.1 All of the following conditions precedent:
(a) The Lender shall have received each of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) each Loan Documents in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, shall have been duly executed by all parties thereto, with the signatures properly notarized and the instruments in proper form for filing or recordation, as required, and shall have been filed or recorded and/or delivered to Lender or Lender's agent, as appropriate.
5.2 All representations and warranties contained herein shall be true and correct as of the day of closing and as of the day of making each and every Advance.
5.3 Borrower, together with:Guarantor and the Administrative Committee shall have executed and delivered such certificates and resolutions as are required by Lender.
5.4 There shall be no Event of Default (Aas defined in Paragraph 12, below) certificates representing the Pledged Interests referred to then in existence.
5.5 No other person, firm, or entity shall have or claim a security interest in the Security Agreement accompanied by undated stock powers executed Stock acquired with the proceeds of the Loan as provided in blank and instruments evidencing this Agreement, to the Pledged Debt indorsed in blankextent not yet released as security for the Loan.
(B) acknowledgment copies or stamped receipt copies of proper 5.6 All necessary UCC financing statements, duly statements have been filed on or before and Lender has obtained a properly perfected first and prior security interest in the Closing Date under Stock and other collateral identified in the Uniform Commercial Code of all jurisdictions that the Pledge Agreement securing same.
5.7 Lender shall have received and approved such additional documents and assurances as Lender may reasonably deem necessary require.
5.8 Lender shall have received one or more attorney opinion letters from counsel for Borrower in order the form appended hereto as EXHIBIT D and otherwise in form and substance satisfactory to perfect Lender, addressed to Lender covering such matters relating to Borrower, the Plan, and protect the first priority liens Stock as Lender in its discretion may require.
5.9 There shall have been no material adverse change to the financial condition of Borrower or ILX, or ILX's operations or properties.
5.10 The Plan remains in continuing compliance with all local, state, and security interests created federal laws, including, without limitation, the continued qualification under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies provisions of Uniform Commercial Code, tax Sections 401 ET SEQ. and judgment lien searches with respect to the Borrower in each 501 ET SEQ. of the jurisdictions where the Code and ERISA.
5.11 Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized hereby agrees to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formedpay, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(b) The Borrower Guarantor shall have paid to Lender, all accrued Lender's reasonable out-of-pocket expenses including, without limitation, recording costs, filing fees and expenses of the Lender (including the reasonable and documented legal fees and expenses disbursements of SkaddenLender's counsel, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary incurred by Lender in connection with the transactions contemplated hereby subject Loan, and the preparation of the initial Loan Documents (which legal expenses shall not exceed $5,000.00) and any amendment or modification thereof. Any unpaid reimbursements as provided in this paragraph may be deducted by Lender from any Advance.
5.12 Borrower or Guarantor shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable paid Lender a one-time Facility Fee in the reasonable judgment amount of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect$5,000.00.
(d) The Order 5.13 Borrower shall have been entered by the Bankruptcy Court, shall be provide Lender a duly executed Request for Advance in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to appended hereto as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).EXHIBIT E.
(f) The 5.14 Lender shall have received the initial Budget.duly executed Authorizing Resolution and Incumbency Certificate from Borrower, Guarantor and the Administrative Committee in the form appended hereto as EXHIBIT F.
(g) The 5.15 Lender shall have received, at least one Business Day prior to received the Closing Date, all documentation duly executed Irrevocable Power of Attorney and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Stock Power from Borrower in the Patriot Actform appended hereto as EXHIBIT G-1.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or 5.16 The Coverage Ratio resulting after giving effect to the extensions of credit requested to Advance shall not be made on such dateless than 1.25.
Appears in 1 contract
Samples: Credit Agreement (Ilx Resorts Inc)
Conditions to Loan. The agreement obligation of the Lender to extend fund the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The Lender Borrower shall have received each of the followingexecuted and delivered (or cause to have been executed and delivered) to, each of which shall be originals or telecopies (followed promptly by originals)procured for and deposited with, each dated on or prior and paid to the Closing Date (orLender, and if appropriate recorded in the case of certificates of governmental officialsproper records with all filing and recording fees paid, a recent date before the Closing Date) each in form documents, certificates, and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests other items referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing DateExhibit “A”, together with copies of such other documents, certificates and items as Lender may require from time to time. Except as otherwise specifically provided herein or agreed in writing by Lender, all such filings disclosed by such search;
(iii) such duly executed documents, certificates of resolutions or consents, incumbency certificates and/or and other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as items shall bear a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Current Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(b) The Borrower representations and warranties contained in Article IV of this Agreement and elsewhere herein and in the Loan Documents shall have paid be true, correct, and complete in all accrued fees material respects on and expenses as of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5the same extent as though made on and as of that date, except for any representation or warranty limited by its terms to a specific date.
(c) All governmental authorizations There shall exist no Default or Event of Default other than Permitted Temporary Defaults.
(d) No change has occurred which has had or could have a Material Adverse Effect.
(e) No Loan Party shall have incurred any material liabilities, direct or contingent, except as may be permitted under Section 6.02 hereof, since the date of such Loan Party’s most recent Financial Statement theretofore delivered to Lender.
(f) No order, judgment, or decree of any court, arbitrator, or Governmental Authority shall purport to enjoin or restrain Lender from making the Loan.
(g) Borrower shall have paid any and all third party consents required fees, and approvals necessary in connection with shall have delivered to Lender evidence satisfactory to Lender that Borrower has paid all other fees, costs and expenses (including the fees and costs of Lender’s counsel) then required to be paid pursuant to this Agreement, and all other Loan Documents including all fees, costs and expenses that Borrower is required to pay pursuant to any loan application or commitment.
(h) All legal matters incident to this Agreement and the transactions contemplated hereby shall have been obtained (without be satisfactory to counsel to Lender. Notwithstanding the imposition foregoing, should Lender fund the Loan or any portion thereof prior to fulfillment by the Loan Parties of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrainsconditions set forth above, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or Parties shall execute all documents and take all actions required to fulfill such conditions within three (y3) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as Days of such date as if made on and as of such datefunding.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Commercial Loan Agreement (Moody National REIT I, Inc.)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfaction, prior to Lender’s receipt of (or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:
(awaived by Lender in writing) The Lender shall have received each of the following, each dated the date of which shall be originals the initial Loan or telecopies (followed promptly by originals), each dated on or prior as of an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) duly executed counterparts of this Agreement,completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or desirable;
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of financing statements (Form UCC-1) (naming the Lender as secured party and the Borrower as debtor and in form acceptable for filing in all jurisdictions that the Lender may reasonably deem deems necessary or desirable to perfect the security interests granted to it hereunder) and, if applicable, termination statements or other releases duly filed in order all jurisdictions that the Lender deems necessary or desirable to perfect and protect the first priority liens and of the security interests created under the Security Agreement, covering granted to it hereunder in the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect related to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such searchinitial Loan;
(iii) such a Note duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of by the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity amount of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documentssuch Loan;
(iv) such documents and a Collateral Access Agreement duly executed certifications by any person or entity, as the Lender case may reasonably require to evidence that be, of each premises where the Borrower Collateral is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formedlocated;
(v) certificates of insurance required under Section 5.4 of this Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(vi) a certificate signed by a Responsible Officer of the Secretary or an Assistant Secretary of the Borrower (“Secretary’s Certificate”) certifying (A) that attached to the conditions specified Secretary’s Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in Sections 4.1(ilieu thereof) authorizing the execution, delivery, and (j) performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been satisfied amended or modified since the date of such certification and are in full force and effect; (B) as the incumbency, names, and true signatures of the Closing Dateofficers of the Borrower authorized to sign the Loan Documents to which it is a party; (C) that attached to the Secretary’s Certificate is a true and correct copy of the Articles or Certificate of Incorporation of the Company, since September 30as amended, 2010which Articles or Certificate of Incorporation have not been further modified, there has repealed or rescinded and are in full force and effect; (D) that attached to the Secretary’s Certificate of the Borrower is a true and correct copy of the Bylaws, as amended, which Bylaws of the Company have not been no changefurther modified, eventrepealed or rescinded and are in full force and effect; and (E) that attached to the Secretary’s Certificate is a valid Certificate of Good Standing issued by the Secretary of the State of the Borrower’s state of incorporation and a valid Certificate of Good Standing from the Secretary of the State of the state of Borrower’s principal place of business, circumstance or development that, individually or in if different from the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; andBorrower’s state of incorporation;
(vivii) a Loan Notice.
(b) The Borrower shall have paid all accrued fees Such other agreements and expenses of instruments as the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals deems necessary in its good faith business judgment in connection with the transactions contemplated hereby shall have been obtained hereby.
(without viii) The security interests in the imposition of any conditions that are not reasonably acceptable Collateral related to the Lender) and shall remain initial Loan granted in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies favor of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order this Agreement shall have been entered by the Bankruptcy Court, shall be in full force and effect duly perfected and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lenderconstitute first priority liens.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Conditions to Loan. The agreement of Any advance under the Lender Loan, in addition to extend any and all requirements in the Loan requested to Agreement, shall be made by it is subject to the satisfactionBeneficiary’s receipt, prior to or concurrently with the making of such extension of credit on the Closing Datereview, of the following conditions precedent:
(a) The Lender shall have received each approval and/or confirmation of the following, at Grantor’s cost and expense except as set forth below, each in form and content satisfactory to Beneficiary in its sole discretion:
(1) All Loan Documents, executed by Gxxxxxx and, as applicable, each Grantor Party and each other party thereto;
(2) Indemnity executed by Gxxxxxx and Wxxxx Mid-Horizon Value-Added Fund I, LLC;
(3) Payment by Grantor to Beneficiary of which shall be originals Beneficiary’s loan fee charged in connection with the closing of the Loan; DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING - 6
(4) Payment by Grantor to Beneficiary for reimbursement of Beneficiary for all costs and fees incurred in connection with processing the Loan, including, without limitation, UCC searches, Beneficiary’s attorneys’ fees, appraisal fees, and any other costs and fees incurred by Beneficiary in connection with the Loan;
(5) Payment by Grantor of all escrow fees and recording fees incurred by Beneficiary, any title company, any escrow company, or telecopies any other party in connection with the closing of the Loan, the recording of the Deed of Trust, and the filing of any other documents to perfect the security interest granted to Beneficiary pursuant to the Loan Documents;
(followed promptly 6) Complete and signed copies of each lease agreement affecting the Mortgaged Property, if any, and, if required by originalsLender, estoppels certificates and/or subordination and attornment agreements in favor of Beneficiary executed by all tenants in a form acceptable to Beneficiary in its sole discretion;
(7) An ALTA extended coverage loan policy of title insurance in the amount of the Loan Amount, in form satisfactory to Beneficiary (with all endorsements requested by Beneficiary), each dated insuring Beneficiary that the Deed of Trust is a valid first priority lien on or prior the Mortgaged Property, free and clear of all liens, encumbrances and exemptions, excepting only those items which Beneficiary has previously approved in writing;
(8) Evidence of insurance as required by this Deed of Trust and conforming in all respects to the Closing Date requirements of Beneficiary;
(or9) Copies of the organizational documents of Grantor and each Grantor Party, in including certified copies of the case certificate of certificates formation and operating agreement (or bylaws, as applicable), as well as resolutions authorizing the execution, delivery, and performance of governmental officialsthe Loan, a recent date before the Closing Date) each Deed of Trust, and all other Loan Documents, in form and substance satisfactory to the Lender and Beneficiary in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such searchits sole discretion;
(iii10) Good standing certificate for Grantor and each Grantor Party, issued by the state in which each such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is entity was formed;
(v11) a certificate signed by a Responsible Officer Survey of the Borrower certifying (A) that the conditions specified Mortgaged Property, environmental report(s), and appraisal by an independent appraiser, as may be required by Beneficiary, in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effectits discretion; and
(vi12) a Such other instruments, documents and opinions as Beneficiary shall require to evidence and secure the Loan Notice.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired withoutotherwise, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effectBeneficiary’s sole discretion.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Samples: Deed of Trust (Wells Mid-Horizon Value-Added Fund I LLC)
Conditions to Loan. (a) The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The Lender shall have received each Lender's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(i) duly executed counterparts of this Agreement,
(ii) the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers each dated the date of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(b) The Borrower shall have paid all accrued fees and expenses of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably an earlier date acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.
(e) All of the “first day orders” and related orders submitted on or about the date of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained).
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.its counsel:
(i) No Default completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Borrower as the Lender shall deem necessary or Event desirable;
(ii) acknowledgement copies of Default Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of the Lender, a perfected first priority Lien on the Collateral;
(iii) a Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) an Intellectual Property Security Agreement, in form and substance satisfactory to the Lender and its counsel, duly executed by the Borrower, specifically identifying and granting to the Lender a security interest in all of the Borrower's intellectual property;
(v) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(vi) a Notice of Security Interest, in form and substance satisfactory to the Lender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vii) the warrants described in the Commitment Letter, if any;
(viii) certificates of insurance required under Section 5.4 of this Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(ix) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) that attached to the Secretary's Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in full force and effect; (B) the incumbency, names, and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party; (C) that attached to the Secretary's Certificate is a true and correct copy of the Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is a true and correct copy of the Bylaws, as amended, which Bylaws of the Company have not been further modified, repealed or rescinded and are in full force and effect; and (E) that attached to the Secretary's Certificate is a valid Certificate of Good Standing issued by the Secretary of the State of the Borrower's state of incorporation;
(xi) the opinion of counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require;
(xii) evidence of the consent or authorization of, filing with or other act by or in respect of any governmental agency or authority or any other Person required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby; and
(xiii) such other documents, agreements and instruments as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) The security interests in the Collateral granted in favor of the Lender under this Agreement shall have occurred been duly perfected and be continuing on such date or after giving effect to the extensions of credit requested to be made on such dateshall constitute first priority liens, except for Permitted Liens.
Appears in 1 contract
Samples: Loan and Security Agreement (Repeater Technologies Inc)
Conditions to Loan. The agreement obligation of the Lender to extend make the Loan requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, satisfaction of the following conditions precedentprior to or concurrent with the Loan:
(a) The Lender shall have received each of the following, each dated the date of which shall be originals the initial Loan or telecopies (followed promptly by originals), each dated on or prior as of an earlier date acceptable to the Closing Date (orLender, in the case of certificates of governmental officials, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lenderits counsel:
(i) the Note, duly executed counterparts of this Agreement,by Borrower;
(ii) a control agreement covering the Security Collateral Proceeds under the Borrower Pledge Agreement and the Blocked Account, in form and substance satisfactory to Lender, duly executed by Borrower, Lender and Citibank (as such control agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Borrower Control Agreement”);
(iii) the Borrower Pledge Agreement, duly executed by the Borrower, together with:
with (A) the original certificates representing the Pledged Interests referred to in the Security Agreement accompanied by Units pledged thereunder and undated stock transfer powers therefor, executed in blank blank, and instruments evidencing the Pledged Debt indorsed in blank.
(B) an Acknowledgment and Agreement of the Chief Executive Officer of BHAC confirming, among other things, that Lender’s security interest in such Units has been registered in the books and records of BHAC, that such security interest does not violate any of BHAC’s organizational documents and that BHAC will follow Lender’s instructions with respect to any distributions payable on account of, or any other proceeds of, such Units;
(iv) the Guaranties, duly executed by Guarantors;
(v) an acknowledgment copies or stamped receipt copies copy of proper financing statementsthe UCC Financing Statement in respect of the Borrower Pledge Agreement and the Borrower Control Agreement (naming Lender as secured party and Borrower as debtor), duly filed on or before the Closing Date under the Uniform Commercial Code of in all jurisdictions that the Lender may reasonably deem deems necessary in order or desirable to perfect and protect the first priority liens and security interests Lien created under the Security Borrower Pledge Agreement and the Borrower Control Agreement, covering the Collateral described in the Security Agreement, and;
(Cvi) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction)completed requests for information, dated on or before the Closing Datedate of the Loan, listing all effective financing statements filed in the jurisdictions referred to in clause (v) above and in all other jurisdictions that Lender deems necessary or desirable to confirm the priority of the Lien created under the Borrower Pledge Agreement and the Borrower Control Agreement, that name Borrower as debtor, together with copies of all such filings disclosed by such searchfinancing statements;
(iiivii) (A) financial statements of Guarantors for the year ended December 31, 2006 and for the period through May 25, 2007, certified by Guarantors, and (B) pro forma financial statements for Borrower in form and substance satisfactory to Lender;
(viii) an opinion of counsel for each Loan Party covering such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of matters incident to the Borrower transactions contemplated by this Agreement as the Lender may reasonably require evidencing require, which such counsel is hereby requested by Borrower on behalf of all the identityLoan Parties to provide;
(ix) copies of the certificate of incorporation and by-laws of Borrower and a copy of the resolutions of the Board of Directors (or similar evidence of authorization) of Borrower authorizing the execution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require Documents to evidence that the which Borrower is duly organized or formedis to be a party, and that the Borrower transactions contemplated hereby and thereby, attached to which is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Secretary or an Assistant Secretary of Borrower certifying (A) that such certificate of incorporation and by-laws of Borrower and resolutions (or similar evidence of authorization) relating to Borrower are true, complete and accurate copies thereof, have not been amended or modified since the conditions specified date of such certificate and are in Sections 4.1(i) full force and (j) have been satisfied effect and (B) as the incumbency, names and true signatures of the officers of Borrower authorized to sign the Loan Documents to which it is a party;
(x) a certified copy of a certificate of the Secretary of State of the state of incorporation of Borrower, dated within two days of the Closing Date, listing the certificate of incorporation of Borrower and each amendment thereto on file in such official’s office and certifying that (A) such amendments are the only amendments to such certificate of incorporation on file in that office, (B) Borrower has paid all franchise taxes to the date of such certificate, and (C) Borrower is in good standing in that jurisdiction;
(xi) a good standing certificate from the Secretary of State of each state in which Borrower is qualified as a foreign corporation, each dated within ten days of the Closing Date;
(xii) copies of the certificate of formation and the operating agreement of Lightstone, attached to which is a certificate of the managing member of Lightstone certifying that such certificate of formation and operating agreement of Lightstone are true, complete and accurate copies thereof, have not been amended or modified since September 30the date of such certificate and are in full force and effect;
(xiii) a certified copy of a certificate of the Secretary of State of the state of formation of Lightstone, 2010dated within two days of the Closing Date, there listing the certificate of formation of Lightstone and each amendment thereto on file in such official’s office and certifying that (A) such amendments are the only amendments to such certificate of formation on file in that office, (B) Lightstone has paid all franchise taxes to the date of such certificate, and (C) Lightstone is in good standing in that jurisdiction;
(xiv) a good standing certificate from the Secretary of State of each state in which Lightstone is qualified as a foreign limited liability company, each dated within ten days of the Closing Date;
(xv) copies of the certificate of formation and the limited liability company agreement of BHAC, attached to which is a certificate of the Secretary of BHAC certifying that such certificate of formation and limited liability company agreement are true, complete and accurate copies thereof, have not been amended or modified since the date of such certificate and are in full force and effect;
(xvi) copies of the certificate of formation and the limited liability company agreement of DX-XX Holdings LLC, a Delaware limited liability company (“DX-XX”), attached to which is a certificate of the Secretary of DX-XX certifying that such certificate of formation and limited liability company agreement are true, complete and accurate copies thereof, have not been amended or modified since the date of such certificate and are in full force and effect, together with the original certificate(s) evidencing and representing the Series A-2 Units and Common A-2 Units in DX-XX and undated transfer powers as to such Units executed in blank by Lightstone and otherwise in form and substance satisfactory to Lender; and
(xvii) such other agreements, instruments and evidence as the Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) There shall be no changepending or, eventto the knowledge of Borrower after due inquiry, circumstance threatened litigation, proceeding, inquiry or development thatother action (i) seeking an injunction or other restraining order, individually damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents, or (ii) which affects or could affect the business, prospects, operations, assets, liabilities or condition (financial or otherwise) of any Loan Party, except, in the aggregatecase of clause (ii), has had where such litigation, proceeding, inquiry or would other action could not reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Notice.
(bc) The Borrower shall have paid paid, or delivered evidence satisfactory to Lender in its sole discretion that Borrower shall immediately pay, (i) all accrued reasonable fees and expenses of Lender in connection with the Lender negotiation, preparation, execution and delivery of the Loan Documents (including including, without limitation, all of Lender’s examination, audit, appraisal and travel expenses and the reasonable and documented fees and expenses of Skaddencounsel to Lender), Arps, Slate, Mxxxxxx & Fxxx LLPand (ii) the fees referred to in this Agreement that are required to be paid on or before the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) the execution, delivery and performance of the Loan Documents or (y) the exercise of any rights or remedies of the Lender under the Loan Documents) and shall remain in effectDate.
(d) The Order shall Except for (i) the filing of the financing statement under the UCC specified in Section 9.1(a)(v) hereof, and (ii) consents or authorizations which have been entered obtained under Section 4.1.3 hereof, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the Bankruptcy Courtexecution, shall be in full force and effect and shall not have been amendeddelivery, modifiedperformance, stayed validity or reversed without enforceability of this Agreement, the prior written consent Note or the other Loan Documents or the consummation of the Lendertransactions contemplated hereby or thereby or the continuing operations of Borrower following the consummation of such transactions.
(e) All of the “first day orders” and related orders submitted on No change, occurrence, event or about the date of the commencement of the Case shall development or event involving a prospective change that could reasonably be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed expected to have been obtained)a Material Adverse Effect shall have occurred and be continuing.
(f) The Lender and its counsel shall have received performed (i) a review satisfactory to Lender of all of the initial Budgetmaterial contracts and other assets of each Loan Party, the financial condition of each Loan Party, including all of such Loan Party’s tax, litigation, environmental and other potential contingent liabilities and the capital structure of each Loan Party, (II) a pre-closing audit and collateral review, and (III) reviews and investigations of such other matters as Lender and its counsel deem appropriate, in each case with results satisfactory to Lender.
(g) The Lender Loan Parties shall be in compliance with all Legal Requirements and material contracts, other than such noncompliance that could not reasonably be expected to have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Acta Material Adverse Effect.
(h) Each The Liens in favor of the representations and warranties made by Lender under the Borrower in or pursuant to Pledge Agreement and the Loan Documents Borrower Control Agreement shall have been duly perfected and shall constitute a first priority Lien, and the Collateral subject thereto shall be true free and correct on clear of all Liens other than Liens in favor of Lender and as of such date as if made on and as of such datePermitted Encumbrances.
(i) No Default or Event of Default Lender shall have occurred received (A) evidence satisfactory to it in its sole discretion that Guarantors hold and be continuing maintain on such date or a combined basis (without duplication) at least $75,000,000 of Unencumbered Liquid Assets (as defined in the Guaranties) after giving effect to the extensions of credit requested transactions contemplated by the Loan Documents, including the Loan to be made on such datehereunder, and (B) confirmation of the distributions made to Guarantors in 2006 and 2007 year-to-date and cash flows (actual and estimated), including in respect of real estate holdings by Guarantors.
Appears in 1 contract
Conditions to Loan. The agreement of 3.1 Conditions Precedent to the Lender Loan. Bank's obligation hereunder to extend -------------------------------- make the Loan requested to be made by it is subject to the satisfactionfulfillment, prior to or concurrently with the making satisfaction of such extension Bank and its counsel, of credit on the Closing Date, each of the following conditions precedenton or before the Closing Date:
(a) The Lender Bank shall have received each of this Agreement and the followingAncillary Documents, each of which all duly executed, and acknowledged, recorded and filed, as Bank may require.
(b) Bank shall be originals or telecopies (followed promptly by originals), each dated on or prior have received from counsel to the Closing Date (orCommittee and Mercury a favorable written opinion, in the case of certificates of governmental officials, a recent date before dated the Closing Date) each , in form and substance satisfactory to Bank and to Bank's counsel;
(c) Bank shall have received true and complete copies of the Lender and in such number of copies as may be requested ESOP Documents, certified by the Lender:Secretary of Mercury;
(id) duly executed counterparts of this Agreement,
(ii) Bank shall have received signature and incumbency certificates respecting the Security Agreement, duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each members of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction)Committee, dated on or before as of the Closing Date, together with copies of all such filings disclosed by such search;
(iiie) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) Bank shall have received a certificate signed executed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) Borrower, dated as of the Closing Date, since September 30certifying that no Event of Default or Unmatured Event of Default has occurred and is continuing or will occur from the execution and delivery of this Agreement and the Ancillary Documents to which Borrower is a party, 2010, there has been no change, event, circumstance or development that, individually the performance by Borrower of its obligations hereunder or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; andthereunder;
(vif) Bank shall have received a Loan Notice.certificate from the Committee and executed by its members, dated as of the Closing Date, attesting to its authorizing the execution and delivery of this Agreement and the Ancillary Documents to which Borrower is a party, and authorizing Borrower to execute same;
(bg) The Borrower Bank shall have paid all accrued fees received an acknowledgement executed by a Responsible Officer of Trustee that the persons executing this Agreement and expenses the Ancillary Documents to which Borrower is a party are trust officers and vice presidents authorized to execute such documents on behalf of Borrower;
(h) Bank shall have received a signature and incumbency certificate respecting the Responsible Officers of Mercury executing the Ancillary Documents to which Mercury is a party, dated as of the Lender Closing Date;
(including i) Bank shall have received a certificate of the reasonable and documented fees and expenses secretary of SkaddenMercury, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before dated as of the Closing Date pursuant to Section 8.5.
(c) All governmental authorizations Date, certifying true and all third party consents and approvals necessary in connection with correct copies of resolutions duly adopted by the transactions contemplated hereby shall have been obtained (without the imposition board of any conditions that are not reasonably acceptable to the Lender) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment directors of the Lender that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without the imposition of any burdensome conditions on (x) Mercury authorizing the execution, delivery and performance of the Loan Ancillary Documents or to which Mercury is a party, and authorizing specific Responsible Officers of Mercury to execute the same on behalf of Mercury;
(yj) Bank shall have received full payment of all Bank Expenses which are due and payable as of the Closing Date;
(k) the exercise representations and warranties of any rights or remedies Borrower set forth in Article IV of the Lender under the Loan Documents) this Agreement shall be true and shall remain in effect.correct;
(dl) The Order Bank shall have been entered by received Borrower's information return, Form 5500 Series, together with all schedules and attachments thereto, most recently filed with the Bankruptcy Court, shall be in full force and effect and shall not have been amended, modified, stayed or reversed without the prior written consent of the Lender.Internal Revenue Service; and
(em) All of Bank shall have received such other instruments, agreements and documents as Bank may request in connection with the “first day orders” transactions contemplated by this Agreement and related orders submitted on or about the date of the commencement of the Case shall be Ancillary Documents, all in form and substance reasonably satisfactory to the Lender Bank and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained)its counsel.
(f) The Lender shall have received the initial Budget.
(g) The Lender shall have received, at least one Business Day prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(h) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents shall be true and correct on and as of such date as if made on and as of such date.
(i) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
Appears in 1 contract
Conditions to Loan. The Lender's agreement of the Lender to extend make the Loan requested to Borrowers hereunder and to disburse the proceeds thereof shall be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent:
(a) The condition precedent that Lender shall have received each of the followingreceived, each of which shall be originals or telecopies (followed promptly by originals), each dated on or prior to the Closing Date (oror by such other time as may be specified herein with respect thereto), in all of the case of certificates of governmental officialsfollowing, a recent date before the Closing Date) each in form and substance satisfactory to the Lender and in such number of copies as may be requested by the Lender:
(ia) duly This Agreement and all other Loan Documents, properly executed counterparts on behalf of this Agreement,
(ii) the Security Agreementapplicable Borrower(s), duly executed by the Borrower, together with:
(A) certificates representing the Pledged Interests referred to in the Security Agreement accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank.
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Lender may reasonably deem necessary in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) copies of Uniform Commercial Code, tax and judgment lien searches with respect to the Borrower in each of the jurisdictions where the Borrower is located (within the meaning of Section 9-307 of the New York UCC or the corresponding code or statute of any other applicable jurisdiction), dated on or before the Closing Date, together with copies of all such filings disclosed by such search;
(iii) such duly executed certificates of resolutions or consents, incumbency certificates and/or other duly executed certificates of Responsible Officers of the Borrower as the Lender may reasonably require evidencing the identity, authority exhibits and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement schedules hereto and the other Loan Documents;
(iv) such documents and duly executed certifications as the Lender may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in the jurisdiction where it is formed;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.1(i) and (j) have been satisfied and (B) as of the Closing Date, since September 30, 2010, there has been no change, event, circumstance or development that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and
(vi) a Loan Noticethereto properly completed.
(b) The Borrower shall have paid all accrued fees and expenses Note, properly executed on behalf of the Lender (including the reasonable and documented fees and expenses of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) on or before the Closing Date pursuant to Section 8.5Borrowers.
(c) All governmental authorizations A Loan Request for the Loan, duly completed and all third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained properly executed by Maritrans on behalf of each Borrower.
(without the imposition of any conditions that are not reasonably acceptable to the Lenderd) and shall remain in effect; all applicable governmental filings shall have been made and all applicable waiting periods in connection with the transactions contemplated hereby shall have expired without, in either case, any action being taken by any Governmental Authority, and no law or regulation shall be applicable in the reasonable judgment A certificate of the Lender that restrainsSecretary or an Assistant Secretary of each Borrower, prevents or imposes materially adverse conditions upon certifying as to (i) the transactions contemplated hereby. All approvals required pursuant to any Regulatory Directive shall have been obtained (without resolutions of the imposition board of any burdensome conditions on (x) directors of such Borrower and, if required, the shareholders of such Borrower, authorizing the execution, delivery and performance of this Agreement, the Note, the other Loan Documents or and any related documents, (yii) the exercise Organizational Documents of any rights or remedies each Borrower, and (iii) the signatures of the Lender under officers or agents of each Borrower authorized to execute and deliver this Agreement, the Note, the other Loan Documents) Documents and shall remain in effect.
(d) The Order shall have been entered by the Bankruptcy Courtother instruments, shall be in full force agreements and effect and shall not have been amended, modified, stayed or reversed without the prior written consent certificates on behalf of the Lendersuch Borrower.
(e) All Current certified copies of the “first day orders” and related orders submitted on or about the date Organizational Documents of the commencement of the Case shall be in form and substance reasonably satisfactory to the Lender and the Borrower and, as entered, shall not deviate from the form thereof approved by the Lender in any material respect which is adverse to the interests of the Lender (such orders hereinafter being referred to as “First Day Orders”; it being understood and agreed that notwithstanding anything herein to the contrary, the relief sought in all such First Day Orders approved by the Lender shall be permitted herein and the consent of the Lender to such relief therein shall be deemed to have been obtained)each Borrower.
(f) The Lender A Certificate of Good Standing issued as to each Borrower by the Secretary of the State of its incorporation, which shall have received be dated not more than thirty (30) days prior to the initial BudgetClosing Date.
(g) The Lender shall have receivedOpinion of counsel to Borrowers and such opinions of local counsel to Borrowers, at least one Business Day prior to the Closing Date, all documentation and other information as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot ActLender.
(h) Each Current searches of the representations appropriate filing offices showing that (i) no state or federal tax liens have been filed and warranties made by the remain in effect against any Borrower, and (ii) no financing statements have been filed and remain in effect against any Borrower in or pursuant relating to the Loan Documents shall be true and correct on and as of such date as if made on and as of such dateCollateral except those financing statements filed by Lender.
(i) No Payment of the $18,225 closing fee and, if any, all of Lender's other fees, commissions and expenses in connection with the funding of the Loan.
(j) Evidence that no Default or Event of Default shall event or circumstance that could reasonably be likely to have occurred and be continuing a Material Adverse Effect has occurred.
(k) Any other documents or items required by Lender.
(l) Any other documents or items listed on such date or after giving effect to the extensions of credit requested to be made on such dateSchedule I hereto.
Appears in 1 contract
Samples: Loan Agreement (Maritrans Inc /De/)