Closing Proceedings. The making of each advance under the Loans shall be subject to the following conditions, in addition to those stated in other provisions of this Agreement, which shall each have been and remain at the time satisfied by Borrower or waived by Bank: 1.1 This Loan Agreement shall have been duly and validly executed and delivered by Borrower and Bank and Borrower shall have duly and validly executed and delivered or caused to be executed and delivered to Bank the Note, and all other Loan Documents, and each Loan Document which is to be filed or recorded shall have been properly filed or recorded and the fees and taxes, if any, for filing or recording the same shall have been paid by Borrower. 1.2 There shall have occurred no Material Adverse Change. 1.3 No event shall have occurred and then be continuing (or would occur after giving effect to the Loans) which constitutes (or would constitute after giving effect to the Loans) an Event of Default and a certificate to such effect signed by the President or a Vice President of Borrower shall be delivered to Bank. 1.4 Each and all of the representations and warranties of Borrower in this Loan Agreement and the other Loan Documents shall be true, correct and accurate as of the date any Loan is requested and a certificate to such effect signed by the President or a Vice President of Borrower shall be delivered to Bank. 1.5 Borrower shall have delivered or caused to be delivered to Bank in Proper Form: (a) Evidence that all necessary action on the part of Borrower and each Material Subsidiary has been taken with respect to the execution and delivery of this Agreement and the other Loan Documents and the performance of their respective terms and the consummation of the transactions contemplated hereby and thereby, so that this Agreement and all Loan Documents to be executed and delivered by or on behalf of Borrower or any Material Subsidiary will be valid and binding upon Borrower and the person or entity executing and delivering such document; (b) Such documents, instruments, certificates and public authority documents as Bank may reasonably require to evidence the status, organization or authority of Borrower and each Material Subsidiary. 1.6 Borrower shall have duly and timely performed each and all of its agreements and undertakings contained in this Loan Agreement. 1.7 Bank shall have received payment of all fees and reimbursement of all reasonable attorneys’ fees and expenses incurred by Bank in connection with the preparation, negotiation and consummation of the loan transaction evidenced by this Loan Agreement and the other Loan Documents. 1.8 Borrower shall have obtained and furnished to Bank evidence of the existence of insurance and endorsements thereto as required pursuant to the provisions of Section 5.6 hereof and shall have paid all premiums therefor. 1.9 Bank shall have completed all due diligence deemed necessary in its sole discretion, and all such information revealed in connection with such due diligence shall be acceptable to Bank in its sole discretion. 1.10 All necessary consents shall have been obtained and copies and other evidence thereof as Bank may reasonably require.
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Closing Proceedings. The making of each the initial advance under the Loans shall be subject to the following conditions, in addition to those stated in other provisions Section II of this Agreement, which shall each have been and remain at the time satisfied by the Borrower or waived by Bankthe Lender:
1.1 (a) This Loan Agreement shall have been duly and validly executed and delivered by the Borrower and Bank the Lender and the Borrower shall have duly and validly executed and delivered or caused to be executed and delivered to Bank the NoteLender the Notes, the Collateral Documents, and all other Loan Documents, and each Loan Collateral Document which is to be filed or recorded shall have been properly filed or recorded and the fees and taxesTaxes, if any, for filing or recording the same shall have been paid by the Borrower.
1.2 There (b) The Borrower must cause to be delivered to the Lender, at the Loan Parties’ expense, a written statement setting forth an opinion of the market value of the Titusville Facility that (i) has been independently and impartially prepared by a qualified appraiser directly engaged by the Lender or its agent, (ii) complies with all applicable federal and state laws and regulations, as well as the Lender’s internal policies, dealing with appraisals or valuations of real property, and (iii) has been reviewed as to form and content and approved by the Lender, in its sole discretion.
(c) The Borrower must cause to be delivered to the Lender a written environmental audit or assessment in favor of the Lender with respect to the Titusville Facility, conducted by an engineering firm reasonably acceptable to the Lender, conforming at a minimum to the ASTM-E1527-05 standards, with such additional non-scope inquiries as the Lender may reasonably require, and containing no information deemed to be unacceptable to the Lender in its sole discretion.
(d) The Borrower must cause to be delivered to the Lender a survey (the “Survey”) of the Titusville Facility by a licensed surveyor who is reasonably acceptable to Lender, showing the location of the improvements and the usual and customary information disclosed by a proper survey and such other information as Lender may reasonably require. The Survey must be duly certified as accurate by the surveyor and must reflect that none of the improvements encroach upon a street or any adjoining property and that no adjoining structure encroaches upon the Property. The Survey must also show that there is no violation of building lines or restrictions.
(e) The Borrower must cause to be delivered to the Lender an ALTA Loan Policy of Title Insurance insuring that the lien created by the Mortgage constitutes a valid lien on the Titusville Facility and has the dignity and priority required by the Lender. The form and substance of the policy must be reasonably satisfactory to Lender in all respects.
(f) The Borrower shall have occurred opened its principal depository and operating accounts with the Lender and the aggregated deposits on the Closing Date shall be no Material Adverse Changeless than $750,000.00.
1.3 (g) The Borrower shall have entered into an IDIQ contract with NASA for commercial payload processing support for expendable launch vehicles and evolved expendable launch vehicles from Cape Canaveral Air Force Station and from the Eastern Range in Florida, on terms reasonably satisfactory to the Lender, and shall have furnished a true and correct copy of such contract to the Lender.
(h) No event shall have occurred and then which could reasonably be continuing (or would occur after giving effect expected to the Loans) which constitutes (or would constitute after giving effect to the Loans) an Event of Default and have a certificate to such effect signed by the President or a Vice President of Borrower shall be delivered to BankMaterial Adverse Effect since June 30, 2010.
1.4 (i) Each and all of the representations and warranties of Borrower in this Loan Agreement and the other Loan Documents shall be true, correct and accurate as of the date any Loan is requested and a certificate to such effect signed by the President or a Vice President of Borrower shall be delivered to Bank.
1.5 Borrower Party shall have delivered or caused to be delivered to Bank the Lender in Proper FormForm the following:
(ai) Evidence that all necessary action on Resolutions of its Board of Directors certified by its Secretary, which resolutions shall authorize the part of Borrower execution, delivery and each Material Subsidiary has been taken with respect to performance by the execution and delivery Loan Party of this Agreement and the other Loan Documents to which the respective Loan Party is a party and the performance of their respective terms and which shall authorize the consummation and performance of the transactions contemplated hereby and thereby, so that this Agreement and all Loan Documents to be executed and delivered by or on behalf of Borrower or any Material Subsidiary will be valid and binding upon Borrower and the person or entity executing and delivering such document;
(bii) Such documentsA certificate of incumbency certified by its President and Secretary with specimen signatures of its President, instrumentsVice President, certificates Treasurer, Secretary and public authority documents other officers who will sign this Agreement or any of the other Loan Documents in connection herewith and delivered pursuant hereto;
(iii) Articles of Incorporation or Organization certified as Bank may reasonably require of a recent date by the Secretary of the State of its incorporation;
(iv) By-laws certified by its Secretary; and
(v) Certificates of the appropriate government officials of the State of its organization and each State where it is authorized to transact business each bearing a recent date, to the effect that the respective Loan Party is so organized and authorized and in good standing.
(j) The Lender shall have received evidence satisfactory to it that the status, organization or authority of Collateral is all owned by the Borrower and Holdings free and clear of any Liens (other than Permitted Liens) and, in the event any such Liens do exist, then the Lender shall have received written releases or subordination agreements in Proper Form executed by each Material SubsidiaryPerson in whose favor a Lien exists.
1.6 Borrower shall have duly and timely performed each and all of its agreements and undertakings contained in this Loan Agreement.
1.7 Bank (k) The Lender shall have received payment of all fees and reimbursement of all reasonable attorneys’ fees and expenses incurred through the Closing Date by Bank the Lender in connection with the preparation, negotiation and consummation of the loan transaction evidenced by this Loan Agreement and the other Loan Documents.
1.8 (l) The Borrower shall have obtained and furnished to Bank the Lender evidence of the existence of insurance and endorsements thereto as required pursuant to the provisions of Section 5.6 4.12 hereof and shall have paid all premiums therefor.
1.9 Bank (m) The Lender shall have completed all due diligence deemed necessary in its sole discretion, and all such information revealed in connection with such due diligence shall be acceptable to Bank the Lender in its sole discretion.
1.10 (n) No Default nor Event of Default shall then exist.
(o) All proceedings to be taken in connection with the transactions contemplated by this Agreement and the other Loan Documents and all documents incident hereto or thereto, and all actions necessary consents to evidence, create, and perfect the security interests contemplated hereby, shall have been obtained taken and be in Proper Form and the Lender shall have received copies and other evidence thereof as Bank of all documents which it may reasonably require.request in connection with such transactions and all corporate proceedings with respect thereto, in Proper Form. Without limiting the generality of the provisions of Section 6.1, for purposes of determining compliance with the conditions specified in this Section 6.1, when Lender has signed this Agreement it shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lender unless the Borrower shall have received notice from the Lender prior to the proposed Closing Date specifying its objection thereto
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Sources: Loan Agreement (ASTROTECH Corp \WA\)