Location of Borrower The Borrower's place of business (or, if the Borrower has more than one place of business, its chief executive office) is located at the address listed under the Borrower's signature on this Agreement.
Organization of Borrower With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the Borrower delivered by the Borrower in connection with the origination of such Mortgage Loan, the Borrower is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico. Except with respect to any Crossed Mortgage Loan, no Mortgage Loan has a Borrower that is an Affiliate of another Borrower under another Mortgage Loan. (An “Affiliate” for purposes of this paragraph (39) means, a Borrower that is under direct or indirect common ownership and control with another Borrower.)
Replacement of Borrower From time to time and subject to the successor Borrower’s meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor Agreement applicable to the Subordination Agent, upon the effective date and time specified in a written and completed Notice of Replacement Subordination Agent in substantially the form of Annex VI attached hereto (a “Notice of Replacement Subordination Agent”) delivered to the Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be substituted for the Borrower for all purposes hereunder.
Cooperation of Borrower If necessary, Borrower agrees to (i) execute any documents (including new Secured Promissory Notes) reasonably required to effectuate and acknowledge each assignment of a Term Loan Commitment or Loan to an assignee in accordance with Section 12.1, (ii) make Borrower’s management available to meet with Collateral Agent and prospective participants and assignees of Term Loan Commitments or Credit Extensions (which meetings shall be conducted no more often than twice every twelve months unless an Event of Default has occurred and is continuing), and (iii) assist Collateral Agent or the Lenders in the preparation of information relating to the financial affairs of Borrower as any prospective participant or assignee of a Term Loan Commitment or Term Loan reasonably may request. Subject to the provisions of Section 12.9, Borrower authorizes each Lender to disclose to any prospective participant or assignee of a Term Loan Commitment, any and all information in such Lender’s possession concerning Borrower and its financial affairs which has been delivered to such Lender by or on behalf of Borrower pursuant to this Agreement, or which has been delivered to such Lender by or on behalf of Borrower in connection with such Lender’s credit evaluation of Borrower prior to entering into this Agreement.
Remedies of Borrower In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment. The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.
Borrower The term “Borrower” as used herein shall include any new or successor corporation, association, partnership (general or limited), limited liability company, joint venture, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower.
Defenses of Borrower Waived To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower, other than the final and indefeasible payment in full in cash of the Obligations. The Administrative Agent and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully, finally and indefeasibly paid in cash. Pursuant to applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Guarantor or guarantor, as the case may be, or any security.
Designation of Lead Borrower as Borrowers’ Agent (a) Each Borrower hereby irrevocably designates and appoints the Lead Borrower as such Borrower’s agent to obtain Credit Extensions, the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement. As the disclosed principal for its agent, each Borrower shall be obligated to each Credit Party on account of Credit Extensions so made as if made directly by the applicable Credit Party to such Borrower, notwithstanding the manner by which such Credit Extensions are recorded on the books and records of the Lead Borrower and of any other Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Lead Borrower as such Loan Party’s agent to represent such Loan Party in all respects under this Agreement and the other Loan Documents.
(b) Each Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers.
(c) The Lead Borrower shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Lead Borrower has requested a Credit Extension. Neither the Administrative Agent nor any other Credit Party shall have any obligation to see to the application of such proceeds therefrom.
BORROWERS BODY SHOP OF AMERICA, INC., a Florida corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer CATALOGUE VENTURES, INC., a Florida corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Chief Executive Officer BODY CENTRAL ACQUISITION CORP., a Delaware corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer RINZI AIR, L.L.C., a Florida limited liability company By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer DYMAS FUNDING COMPANY, LLC, as Administrative Agent By: Dymas Capital Management Company, LLC, its Manager By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Managing Director XXXXXXXXX FINANCIAL CAYMAN LTD., as a Lender By: Xxxxxxxxx Financial LLC, as Collateral Manager By: /s/ Xxxxxxxxxxx Xxx Name: Xxxxxxxxxxx Xxx Title: Managing Director NEWSTAR SHORT-TERM FUNDING LLC, as a Lender By: NewStar Financial, Inc., its Designated Manager By: /s/ P. Xxxxx Xxxxxxxxx Name: NewStar Financial Title: Managing Director NEWSTAR LLC 2005-1, as a Lender By: NewStar Financial, Inc., its Sole Member By: /s/ P. Xxxxx Xxxxxxxxx Name: NewStar Financial Title: Managing Director A3 FUNDING LP, as a Lender By: A3 Fund Management LLC, its General Partner By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Vice President A4 FUNDING LP, as a Lender By: A4 Fund Management, Inc., its General Partner By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Vice President ABLECO FINANCE LLC, as a Lender By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Senior Vice President NATIONAL CITY BANK, as a Lender By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Portfolio Manager CAPITALSOURCE FINANCE LLC, as a Lender By: Name: Title: None, except:
Authorization of Borrowing Etc (a) Each Obligor has duly authorized by all necessary corporate action the execution, delivery and performance of the Loan Documents to which it is a party. The execution, delivery and performance by each Obligor of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents to which it is a party do not and will not (i) (A) violate any provision of any law or any governmental rule or regulation or order applicable to or binding on such Obligor, (B) violate any provision of the Certificate or Articles of Incorporation or Bylaws of such Obligor, (C) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of such Obligor or any of its Subsidiaries except to the extent of any such violation, conflict, breach, default, or imposition of Lien (of which no Obligor has Actual Knowledge) which could not reasonably be expected to have a Material Adverse Effect, or (D) result in or require the creation or imposition of any Lien on any of the Collateral (except as permitted in the applicable Collateral Document) or on any other property (except as permitted under Section 5.13 hereof), or (ii) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of such Obligor or any of its Subsidiaries, except for such approvals or consents which will have been obtained on or before the Closing Date, except for any such approval or consent under a Contractual Obligation and the failure to obtain which could not reasonably be expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by each Obligor of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents to which it is a party and the use of the proceeds of the Loans do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other Governmental Authority or regulatory body or any other Person which is required to be obtained or made on or prior to the Closing Date and which has not previously been obtained or made.
(c) Each Obligor has duly executed and delivered each of the Loan Documents to which it is party and each such Loan Document is the legally valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors' rights generally, including materiality, reasonableness, good faith and fair dealing, and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(d) No part of the proceeds of the Loans will be used, directly or indirectly, for any purpose that entails a violation of Regulations U or X of the Federal Reserve Board.
