Borrower Representations. The Borrower represents and warrants, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated and in good standing under the laws of the State, has or had, as appropriate, the requisite corporate right, power and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:
Appears in 1 contract
Sources: Master Loan Agreement
Borrower Representations. The Borrower hereby represents and warrants, for warrants to the benefit of Lender and that:
(a) The Persons executing the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or Fourth Amendment on behalf of the Lender Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Authority Collateral securing the Loans may be bound or the results thereof): The affected;
(c) Borrower is a nonprofit public benefit/religious corporation duly incorporated formed, validly existing and in good standing under the laws of the StateState of Texas;
(d) The execution, has delivery and performance by the Borrower of the Fourth Amendment and other Loan Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Fourth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or hadafter the date hereof, as appropriate, a party to any contract or agreement which prohibits Borrower's execution of the requisite corporate right, power Fourth Amendment or the Sixth Amendment to Second Amended and authority to enter into this Master Restated Inventory Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation Loan Agreement, the Loan Documents or the bylaws Inventory Loan or Supplemental Loan. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the best of Borrower's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or governmental authority alleging that Borrower has violated any applicable timeshare act, any applicable law of the rules or administrative rule or regulation or any applicable court or administrative decree or orderregulations thereunder, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which applicable laws.
(g) Except as otherwise disclosed by the Borrower is a party to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the financial condition or to which business of the Borrower and its subsidiaries as shown on or by which reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of the Borrower’s property is boundits subsidiaries. Since September 30, or (2) result in the creation or imposition of any lien2003, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of has not made any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Distribution.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents represents, warrants and warrantsagrees as follows:
(a) the Borrower has been duly organized, for the benefit of Lender validly exists and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated and in good standing as a limited liability company under the laws of the StateState of Nebraska, has or hadis duly qualified to do business in Nebraska, as appropriate, the requisite corporate right, power and authority is duly qualified to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect by and necessary or incident to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] ;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the “Borrower’s property is bound, or (2Resolutions”) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of authorizing the transactions contemplated by the Borrower Loan Documents or Documents;
(c) since the date of the last delivery of financial conditioninformation to the Lead Lender, assets, properties or operations there has not been any material adverse change in the business of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority ;
(except with respect to any state securities or “blue sky” lawsd) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation, investigation at law or in equity or before or by any court public board or federal, state, municipal or other governmental authority, body pending or, to the knowledge of the Borrower, after reasonable investigation’s knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the assetstransaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, properties or operations except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the “Miscellaneous Charges”), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Sources: Loan Agreement (Nedak Ethanol, LLC)
Borrower Representations. The Borrower represents represents, warrants and warrantsagrees as follows:
(a) the Borrower has been duly organized, for the benefit of Lender validly exists and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated and in good standing as a limited liability company under the laws of the StateState of Nebraska, has or hadis duly qualified to do business in Nebraska, as appropriate, the requisite corporate right, power and authority is duly qualified to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect by and necessary or incident to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] ;
(b) attached hereto as Exhibit C is a resolution of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of authorizing the transactions contemplated by the Borrower Loan Documents or Documents;
(c) since the date of the last delivery of financial conditioninformation to the Lead Lender, assets, properties or operations there has not been any material adverse change in the business of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority ;
(except with respect to any state securities or “blue sky” lawsd) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation, investigation at law or in equity or before or by any court public board or federal, state, municipal or other governmental authority, body pending or, to the knowledge of the Borrower, after reasonable investigationour knowledge, threatened against or affecting the Borrower or its property or, to Borrower’s knowledge, any basis therefore, wherein an unfavorable decision, ruling or finding would adversely affect the assetstransaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, properties or operations except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower:. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Articles of Organization or Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $5,035,000. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) proceeds of the Notes in the amount of $513,800.00 shall be retained by Lead Lender in the fund established for the Borrower with respect to the Project to pay interest on the Loan due in 2008 and 2009. The Lead Lender shall retain the amount of $2,000.00 as payment for its Origination Fee. Proceeds in the amount of $503,500.00 shall be retained by the Lead Lender and deposited in the Debt Service Reserve Fund. Proceeds in the amount of $95,700.00 shall be paid to the Placement Agent, S▇▇▇▇ ▇▇▇▇▇ Financial Services Corporation as payment for placement agent services. Proceeds in the amount of $55,000.00 shall be used to pay Closing Costs to Bond Counsel;
(q) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto;
(r) Borrower hereby requests that Lead Lender distribute the Closing Costs in the amount of $152,700 as follows: Origination Fees: $ 2,000.00 Bond Counsel: $ 55,000.00 Placement Agent: ($100,700 — 5,000 paid out of new money) $ 95,700.00 (s) and Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto.
Appears in 1 contract
Sources: Loan Agreement (E Energy Adams LLC)
Borrower Representations. The Borrower hereby represents and warrants, for warrants to the benefit of Lender and that:
(a) The Persons executing the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or Sixth Amendment on behalf of the Lender Borrower have full authority to execute the Sixth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Sixth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Authority Collateral securing the Loans may be bound or the results thereof): The affected;
(c) Borrower is a nonprofit public benefit/religious corporation duly incorporated formed, validly existing and in good standing under the laws of the StateState of Texas;
(d) The execution, has delivery and performance by the Borrower of the Sixth Amendment and other Loan Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Sixth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or hadafter the date hereof, as appropriate, a party to any contract or agreement which prohibits Borrower's execution of the requisite corporate right, power Sixth Amendment or the Fourth Amendment to Amended and authority to enter into this Master Restated Receivables Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation Loan Agreement, the Loan Documents or the bylaws Receivables Loan Agreement. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the best of Borrower's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or governmental authority alleging that Borrower has violated any applicable timeshare act, any applicable law of the rules or administrative rule or regulation or any applicable court or administrative decree or orderregulations thereunder, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which applicable laws.
(g) Except as otherwise disclosed by the Borrower is a party to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the financial condition or to which business of the Borrower and its subsidiaries as shown on or by which reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of the Borrower’s property is boundits subsidiaries. Since September 30, or (2) result in the creation or imposition of any lien2003, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of has not made any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Distribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower hereby represents and warrants, for warrants to the benefit of Lender and that:
(a) The Persons executing the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or Third Amendment on behalf of the Lender Borrower have full authority to execute the Third Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Third Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Authority Collateral securing the Loans may be bound or the results thereof): The affected;
(c) Borrower is a nonprofit public benefit/religious corporation duly incorporated formed, validly existing and in good standing under the laws of the StateState of Texas;
(d) The execution, has or had, as appropriate, the requisite corporate right, power delivery and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to performance by the Borrower hereby of the Third Amendment and therebyother Loan Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and by proper corporate action has duly authorized the execution and delivery enforceability of the Third Amendment and all other Loan Documents have been received; and
(e) Borrower Loan Documents. The officer[s] will not be, on or after the date hereof, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the Borrower executing Third Amendment or the Borrower Fifth Amendment to Second Amended and Restated Inventory Loan Documents are duly Agreement and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each Modification of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legalNotes, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation Loan Agreement, the Loan Documents or the bylaws Inventory Loan or Supplemental Loan. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Real Estate Collateral and the Ineligible Note Portfolio, in favor of Textron and Sovereign.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the best of Borrower's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or governmental authority alleging that Borrower has violated any applicable timeshare act, any applicable law of the rules or administrative rule or regulation or any applicable court or administrative decree or orderregulations thereunder, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which applicable laws.
(g) Except as otherwise disclosed by the Borrower is a party to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the financial condition or to which business of the Borrower and its subsidiaries as shown on or by which reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, which conflict2002, breachand except for the Allowance Increase, violation, default, lien, charge there has occurred no materially adverse change in the financial condition or encumbrance might have consequences that would materially and adversely affect the consummation business of the transactions contemplated by Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower Loan Documents and its subsidiaries as of December 31, 2002, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness condition of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrowerits Subsidiaries. Since September 30, and no consent2003, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of has not made any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Distribution.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower hereby represents and warrantswarrants to Lender that: (a) on the Modification Closing Date (i.e., after giving effect to this Amendment), (i) no Event of Default will exist, and (ii) to Borrower’s knowledge, other than any Defaults that may arise from matters disclosed in letters received in connection with the Approved Franchise Agreements for the benefit Mortgaged Properties set forth in paragraph A of Lender Schedule 1.3 attached hereto (copies of which have been or shall be delivered to Lender), no Default will exist; (b) except as set forth on the original Exception Report and on Exhibit E attached hereto (which Exception Report shall be deemed to include the Authorityinformation set forth on Exhibit E attached hereto), that and as otherwise specifically disclosed in this Amendment, all representations and warranties of Borrower contained in the Loan Agreement or in any of the other Loan Documents (as the Loan Documents and such other Loan Documents are amended hereby) are true and correct as of the date hereof in all material respects, except (i) to the extent such representations and warranties expressly relate to remain operative an earlier date (other than the Closing Date), such representations and in full effect regardless warranties shall be reaffirmed as of such earlier date, and (ii) to the funding extent that any of such representations or warranties by their terms are limited to Borrower’s knowledge, such reaffirmation shall also be limited to Borrower’s knowledge; (c) there have been no changes to the organizational or governing documents of Borrower or any other party (other than Lender) to the Loan Documents other than any such changes that have been previously disclosed to Lender; (d) Borrower and each other party executing this Amendment or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated other Loan Documents pursuant to this Amendment have obtained all required authorizations and in good standing under the laws of the State, has or had, as appropriate, the requisite corporate right, power and authority approvals to enter into and perform their respective obligations under this Master Amendment and such other Loan Documents; (e) as of the date hereof, Borrower has terminated all TRS Leases in accordance with Section 2.4 of the Original Loan Agreement, and no TRS Lessees hold any interest in the Tax Certificate and Agreement, [list other Borrower documents] Collateral; (collectively, f) the "Borrower agreements set forth in paragraph B of Schedule 1.3 attached hereto are all of the currently effective Mezzanine A Loan Documents"; and (g) and to carry out and consummate all transactions contemplated Mezzanine Loan Documents with respect to the Borrower hereby and therebyMezzanine Loans B through G, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legalinclusive, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, released pursuant to the knowledge release agreements set forth in paragraph C of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Schedule 1.3 attached hereto.
Appears in 1 contract
Sources: Third Omnibus Amendment to Loan Documents (Mortgage Loan) (W2007 Grace Acquisition I Inc)
Borrower Representations. The Each Borrower hereby represents and warrants, for warrants to the benefit of Lender Administrative Agent and the AuthorityLenders as follows:
a. each of the representations and warranties of the Borrower contained or incorporated in the Loan Agreement, as amended by this Agreement (solely excluding the representations set forth in Section 7.11 of the Loan Agreement), or in any of the other Loan Documents, is true and correct in all material respects on and as of the date hereof, except (x) that if any such representation or warranty was made as of a specific date, then the same shall have been true and correct in all material respects as of such specific date, and (y) for purposes of remaking the representations and warranties set forth in Section 6.1 of the Loan Agreement as of the date hereof, (1) reference should be made to (and such representations and warranties are qualified in their entirety by the information contained in) the rent roll and accounts receivable report delivered by the Borrower to remain operative the Administrative Agent in connection with this Agreement and in full effect regardless (2) exception is further taken for the default notice delivered to Laderach;
b. as of the funding date hereof and immediately after giving effect to this Agreement and the actions contemplated hereby, to the knowledge of the Loan each Borrower, no Potential Default or any investigations by Event of Default has occurred and is continuing;
c. each Borrower has all necessary limited liability company, corporate, or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated and in good standing under the laws of the State, has or had, as appropriate, the requisite corporate right, limited partnership power and authority to enter into execute, deliver and perform its obligations under this Master Loan Agreement; the execution, the Tax Certificate delivery and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action performance of this Agreement has been duly authorized by all necessary limited liability company, corporate, or limited partnership action on the execution part of such Borrower; and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are this Agreement has been duly and properly in office and fully authorized to execute the same. The Borrower has duly validly executed and delivered by each of the Borrower Loan Documents. Each of the Borrower Loan Documents and constitutes the legal, valid and binding agreement obligation of the such Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, except as enforcement such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or of general applicability affecting the enforcement of creditors’ rights, by rights generally and (ii) the application of equitable principles, general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law, and by ); and
d. the exercise of judicial discretion in appropriate cases. The execution and delivery of the this Agreement by each Borrower Loan Documents (i) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for such as have been obtained or made and the consummation of the transactions herein are in full force and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] effect, (ii) will not (1) conflict with violate the operating agreement or constitute a breach or violation by-laws of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the any Borrower, (iii) will not violate or result in a default under any applicable law or administrative rule or regulation or regulation, any applicable court or administrative decree or orderorder of any Governmental Authority, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease agreement or other instrument to which the Borrower is a party or to which or by which the binding upon any Borrower or any of the Borrower’s property is boundits assets, or give rise to a right thereunder to require any payment to be made by any such Person, in each case to the extent such violation or default would not reasonably be expected to result in a Material Adverse Effect, and (2iv) will not result in the creation or imposition of any lien, charge or encumbrance Lien on any asset of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:.
Appears in 1 contract
Sources: Omnibus Amendment to Loan Documents (Alexanders Inc)
Borrower Representations. The Borrower hereby represents and warrants, for warrants to the benefit of Lender and that:
(a) The Persons executing the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or Fourth Amendment on behalf of the Lender Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Authority Collateral securing the Loans may be bound or the results thereof): The affected;
(c) Borrower is a nonprofit public benefit/religious corporation duly incorporated formed, validly existing and in good standing under the laws of the StateState of Texas;
(d) The execution, has or had, as appropriate, the requisite corporate right, power delivery and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to performance by the Borrower hereby of the Fourth Amendment and therebyother Loan Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and by proper corporate action has duly authorized the execution and delivery enforceability of the Fourth Amendment and all other Loan Documents have been received; and
(e) Borrower Loan Documents. The officer[s] will not be, on or after the date hereof, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the Borrower executing Inventory Loan or the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legalSupplemental Loan, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation Loan Agreement, the Loan Documents, the Receivables Loan Agreement, the Textron Documents, the Bond Holder Exchange Documents, the Sovereign Documents or the bylaws DZ Documents. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Real Estate Collateral and the Ineligible Note Portfolio, in favor of Textron and Sovereign.
(f) Except as disclosed on SCHEDULE 23(f) hereto, there are no actions, suits, proceedings, orders or injunctions pending or, to the best of Borrower's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or governmental authority alleging that Borrower has violated any applicable timeshare act, any applicable law of the rules or administrative rule or regulation or any applicable court or administrative decree or orderregulations thereunder, or any indentureother applicable laws.
(g) Since the date of the Inventory Loan and the Receivables Loan, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which except as otherwise disclosed by the Borrower is a party to Lender in writing, since September 30, 2001, there has occurred no materially adverse change in the financial condition or to which business of the Borrower and its subsidiaries as shown on or by which reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of September 30, 2001, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, which conflict2001, breach, violation, default, lien, charge there has occurred no materially adverse change in the financial condition or encumbrance might have consequences that would materially and adversely affect the consummation business of the transactions contemplated by Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower Loan Documents and its subsidiaries as of December 31, 2001, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness condition of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrowerits Subsidiaries. Since September 30, and no consent2001, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of has not made any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Distribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The made hereunder, that:
(a) Borrower is and at all times hereafter shall be a nonprofit public benefit/religious corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the State, has state of its organization as set forth above and qualified or had, as appropriate, licensed to do business in all other states in which the requisite corporate right, power laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and authority empowered to enter into into, execute, deliver and perform this Master Loan AgreementAgreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rightsOther Agreements shall not, by the application lapse of equitable principlestime, regardless the giving of whether such enforceability is considered in a proceeding in equity notice or at lawotherwise, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule a breach of any provision contained in Borrower's organizational documents or regulation contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any applicable court contract or administrative agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(d) Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it;
(e) The Financials fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of their respective dates and have been prepared in accordance with generally accepted accounting principles (or, with regard to Financials prepared prior to December 31, 2004, have been prepared in accordance with commercially reasonable accounting principles), consistently applied, and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.
(f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Equipment described and/or listed on any certificate or schedule relating to Equipment delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except those of Lender (and except for Permitted Liens); (ii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially Equipment and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Collateral;
Appears in 1 contract
Sources: Loan and Security Agreement
Borrower Representations. The Borrower represents represents, warrants and warrantsagrees as follows:
(a) the Borrower has been duly organized, for the benefit of Lender validly exists and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit public benefit/religious corporation duly incorporated and in good standing as a limited liability company under the laws of the StateState of Nebraska, has or hadis duly qualified to do business in Nebraska, as appropriate, the requisite corporate right, power and authority is duly qualified to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect by and necessary or incident to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] ;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the ("Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1's Resolutions") conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of authorizing the transactions contemplated by the Borrower Loan Documents or Documents;
(c) since the date of the last delivery of financial conditioninformation to the Lead Lender, assets, properties or operations there has not been any material adverse change in the business of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority ;
(except with respect to any state securities or “blue sky” lawsd) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There there is no action, suit, proceeding, or to the Borrower's knowledge, any inquiry or investigation, investigation at law or in equity or before or by any court public board or federal, state, municipal or other governmental authority, body pending or, to the knowledge of the Borrower, after reasonable investigation's knowledge, threatened against or affecting the Borrower or its property or, to Borrower's knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding would adversely affect the assetstransaction contemplated by or necessary or incident to the execution and delivery of the Redevelopment Contract or the Loan Documents or the validity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) there are no valid material security interests in or liens against the interest of the Borrower in the Redevelopment Project as of the date hereof, properties or operations except those created by the Permitted Encumbrances;
(f) the Borrower has duly authorized, by all necessary company action, the execution, delivery and due performance of the Loan Documents;
(g) the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to which the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors', mechanics', laborers or materialmen's statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. ss.ss. 18-2101, et. seq.;
(o) unless previously provid▇▇ ▇▇ Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 ("Origination Fees"), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Oppenheimer & Co. Inc. as its total payment for placemen▇ ▇▇▇▇▇ services ("Placement Agent Services Fee");
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer's Counsel ($50,000), Placement Agent's Counsel ($50,000), Borrower's Counsel ($30,000) and Lead Lender's Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the "Miscellaneous Charges"), as necessary, and funds not used for Miscellaneous Charges shall be returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and no/100 Dollars ($4,926,510.00), which constitutes the difference of the entire Loan Proceeds ($6,864,000.00), less the sum of the Capitalized Interest Amount ($870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) and the Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the proceeds of the Senior Credit Facility and the Loan, represents sufficient capitalization for Borrower to complete and operate the Facility.
Appears in 1 contract
Sources: Loan Agreement (Nedak Ethanol, LLC)
Borrower Representations. The Borrower hereby represents and warrants, for warrants to the benefit of Lender and that:
(a) The Persons executing the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or Fifth Amendment on behalf of the Lender Borrower have full authority to execute the Fifth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fifth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Authority Collateral securing the Loans may be bound or the results thereof): The affected;
(c) Borrower is a nonprofit public benefit/religious corporation duly incorporated formed, validly existing and in good standing under the laws of the StateState of Texas;
(d) The execution, has delivery and performance by the Borrower of the Fifth Amendment and other Loan Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Fifth Amendment and all other Loan Documents have been received; and
(e) Borrower will not be, on or hadafter the date hereof, as appropriate, a party to any contract or agreement which restricts its right or ability to incur indebtedness or prohibits Borrower's execution of the requisite corporate right, power Fifth Amendment or the Third Amendment to Amended and authority to enter into this Master Restated Receivables Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation Loan Agreement, the Loan Documents or the bylaws Receivables Loan Agreement. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien except in favor of Lender as provided herein, and, with respect to the Real Estate Collateral and the Ineligible Note Portfolio, in favor of Textron and Sovereign.
(f) Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the best of Borrower's knowledge, threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has received no notice from any court or governmental authority alleging that Borrower has violated any applicable timeshare act, any applicable law of the rules or administrative rule or regulation or any applicable court or administrative decree or orderregulations thereunder, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which applicable laws.
(g) Except as otherwise disclosed by the Borrower is a party to Lender in writing, since September 30, 2003, there has occurred no materially adverse change in the financial condition or to which business of the Borrower and its subsidiaries as shown on or by which reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of September 30, 2003, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets its subsidiaries. Following Lender's receipt and approval of the Borrower's financial statements for the fiscal year ended on December 31, which conflict2002, breachand except for the Allowance Increase, violation, default, lien, charge there has occurred no materially adverse change in the financial condition or encumbrance might have consequences that would materially and adversely affect the consummation business of the transactions contemplated by Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower Loan Documents and its subsidiaries as of December 31, 2002, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness condition of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrowerits Subsidiaries. Since September 30, and no consent2003, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of has not made any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Distribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)