Conditions Precedent to Lending. The obligation of Lender to make the initial Advance hereunder shall be subject to the condition precedent that Borrower shall be in compliance with the conditions contained in Section 3.02 and the further condition precedent that Lender shall have received the following: (a) The Note, Mortgage, Assignment of Leases and Rents, Completion Guaranty, Process and Performance Guaranty, UCC Financing Statements, Environmental Indemnity Agreement, Opinion of Borrower’s Counsel, Borrower’s organizational documents, and other Loan Documents as required hereunder, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content, and duly executed and delivered to Lender. (b) A current appraisal prepared by a state licensed appraiser approved by Lender indicating an appraised value of the Mortgaged Property as follows: an “as stabilized” value of the Project that will result in a Loan to value ratio of not more than sixty five percent (65%). The appraisal shall be addressed to Lender and state that it has been prepared on Lender’s behalf. The form of the appraisal and the appraisal methods shall otherwise be satisfactory to Lender and shall conform to all requirements of State and Federal law. Upon completion of construction, at the expense of Borrower, the appraiser shall reinspect and recertify the value of the Mortgaged Property “as built.” (c) A “marked-up commitment” for a mortgagee’s title insurance policy duly endorsed by the Title Company that: (i) names Lender as primary insured in the full principal amount of the Commitment; (ii) insures the Mortgage to be a valid first lien on the Mortgaged Property; and (iii) is free from exceptions for (1) matters that would be disclosed by a survey or inspection, (2) mechanics’, contractors’ or materialmen’s liens and lien claims, (3) rights and claims of parties in possession, (4) easements or claims of easements not shown by the public records, including appurtenant easements and (5) other exceptions not specifically approved by Lender and as set forth in Exhibit B. All real estate taxes are current and all levied and pending assessments as of the date of the Mortgage shall be paid in full. The policy shall include a Form 3.1 zoning endorsement, an ALTA Form 9 comprehensive endorsement, a variable rate endorsement, a survey endorsement, and such other endorsements as Lender may reasonably require under the circumstances. Any undefined easements shall be defined and any appurtenant easements required for the Mortgaged Property must be executed and delivered and must satisfy requirements of the Title Company and Lender in the sole and uncontrolled discretion of the Title Company, Lender and Lender’s legal counsel. (d) An ALTA survey of the Mortgaged Property, satisfactory to Lender and the Title Company, prepared by a registered land surveyor, which will include the legal description and area of the Mortgaged Property, show and certify to the perimeter lot lines, dimensions and vectors, the location of all existing footings, foundations and improvements, utilities, easements, rights of way, building set back lines, curb lines and encroachments, and the intended location of the Project according to the Drawings and Specifications to be submitted and approved by Lender as provided herein. Said survey shall be prepared for Lender’s and the Title Company’s benefit and shall be certified by the surveyor in form acceptable to Lender and Title Company. The survey shall be updated, as necessary to show the footings or foundations of the Project when the footings or foundation is completed, and shall be updated again to show the location of the “as-built” Project prior to the final disbursement of Loan proceeds. (e) Copies of all building and other permits necessary for construction of the Project. Lender shall also receive a certificate of the engineer (or the opinion of Borrower’s legal counsel) to the effect that all permits required by any governmental authority for construction and operation of the Project have been obtained. (f) Evidence satisfactory to Lender that the Project complies with all building codes and zoning and subdivision ordinances applicable thereto, and that the Project and its use thereof are in compliance with all other state, federal, and local laws and regulations. (g) Copies of the contracts between Borrower and the General Contractor, as well as the contracts between the General Contractor and all major subcontractors. The Construction Contract shall be a fixed-price or maximum-cost contract. All such contracts shall be in form satisfactory to Lender and Lender’s legal counsel and shall, together with the Drawings and Specifications, be assigned to Lender. The General Contractor, and any subcontractors or other contractors, if required by Lender, shall consent to such assignments. Borrower shall also provide to Lender any contract entered into by Borrower, or any proposed tenants or franchisees doing business on the property of Borrower, directly with any contractor, engineer, architect or professional concerning the provision of materials and/or labor and/or services to the Project. (h) Internally prepared current financial statements of Borrower, certified as true and correct by the party giving the same. All such financial statements shall (i) indicate all assets, liabilities, contingent liabilities and income, and (ii) include separate financial statements for each significant asset (e.g., if partnership interests are shown as an asset, the financial statements of the partnership shall also be provided). All financial and credit information must be satisfactory to Lender in form and substance. (i) Satisfactory soil test borings and soil reports that are acceptable to Lender. (j) Written evidence from the proper municipal authorities and public utility companies that all utilities, including water, electricity and natural gas, sewage and related services are or will be available to the Mortgaged Property upon completion of the Project. (k) All reciprocal easement agreements, maintenance agreements, and other easements relating to the Mortgaged Property as Lender or Lender’s legal counsel may require, if any, for parking, access, utility and other purposes, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content. (l) Evidence satisfactory to Lender that no petroleum product or other Hazardous Substance is present on the Mortgaged Property, and that no asbestos-containing products, urea-formaldehyde foams or PCB’s are being used in the construction of the Project. Such evidence shall include a Phase I Environment Report, and if necessary a Phase II Environmental Report, prepared by a licensed engineer or other qualified environmental consultant acceptable to Lender. The report shall be addressed to Lender and state that it was prepared for Lender. If the report indicates that petroleum products or other Hazardous Substances are present, the report shall identify such materials and shall analyze (including cost and time factors) recommended methods of removal. Borrower warrants that no asbestos containing-products, urea-formaldehyde foam insulation or PCB’s will be used in the construction or equipping of the Project. (m) Delivery of the Sworn Construction Statement and the Drawings and Specifications. (n) Delivery of the Project Cost Statement certified by the Borrower. (o) Evidence satisfactory to Lender that Borrower has expended or has deposited with the Lender or Disbursing Agent not less than the amount of the required Equity in payment of costs and expenses incurred in connection with the Project that would be otherwise properly payable from an Advance, together with satisfactory lien waivers for Hard Costs paid with such funds. (p) The Disbursing Agreement, duly executed by the Disbursing Agent, Borrower and Lender. (q) Delivery of a payment and performance bond from General Contractor. (r) Payment to Lender of a commitment fee of $433,938.00. (s) Copy of the Management and Operational Services Agreement. (t) Delivery of UCC, tax lien, judgment and bankruptcy searches for the Borrower. (u) Delivery of proof of insurance. (v) Deposit or allocate Equity funds already on deposit with Lender the amount of $5,000,000 for working capital for the express purpose of hedging. (w) Delivery of all executed Loan Documents in proper form for recording or filing, as applicable, and all necessary recordings and filings have been delivered to the Title Company for recording or filing. (x) Lender shall have received from the Borrower the following, each, unless otherwise noted, dated as of the Closing Date: (i) Copies of Borrower’s charter documents and all amendments thereto (the “Constituent Documents”), together with a good standing certificate from the Secretary of State of the State of Iowa and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such state, each dated within thirty (30) days prior to the Closing Date; (ii) A Certificate of Borrower certifying (A) its Constituent Documents, (B) resolutions approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents, certified as of the Closing Date as being in full force and effect without modification or amendment, and (C) incumbency of the appropriate officer executing this Agreement and the other Loan Documents. (y) Delivery by counsel to Borrower of a legal opinion concerning this transaction in substantially the form attached as Exhibit D. (z) A Control Agreement related to each deposit or investment account maintained with any party other than Lender. (aa) A collateral assignment in favor of Lender of each Material Contract in existence on the date hereof.
Appears in 1 contract
Sources: Construction Term Loan Agreement (Iowa Renewable Energy, LLC)
Conditions Precedent to Lending. The obligation of Lender to make the initial Advance hereunder shall be subject to the condition precedent that Borrower shall be in compliance with the conditions contained in Section 3.02 SECTION 3.2 and the further condition precedent that Lender shall have received the following:
(a) The Note, Mortgage, Assignment of Leases and Rents, Completion Guaranty, Process and Performance GuarantyGuaranties, UCC Financing Statements, Environmental Indemnity Agreement, Opinion of Borrower’s Counsel, Borrower’s organizational documents, Agreement and other Loan Documents to which Borrower and/or Guarantor as required hereunderhereunder are party duly executed and delivered to Lender, all of which shall be reasonably satisfactory to Lender and Lender’s 's legal counsel in form and content, and duly executed and delivered to Lender.
(b) A current appraisal prepared by a state licensed appraiser approved by Lender indicating an appraised value of the Mortgaged Property as follows: an “minimum initial value of Land of at least $1,740,000.00, as stabilized” well as "as built" projected appraised value of the Project that will result in a Loan to value ratio of not more than sixty five percent (65%)at least $53,100,000.00. The appraisal shall be addressed to Lender and state that it has been prepared on Lender’s 's behalf. The form of the appraisal and the appraisal methods shall otherwise be reasonably satisfactory to Lender and shall conform to all requirements of State and Federal law. Upon completion of construction, at the expense of Borrower, the appraiser shall reinspect and recertify the value of the Mortgaged Property “"as built.”
(c) A “marked-up commitment” for a mortgagee’s title insurance policy duly endorsed by the Title Company that: (i) names Lender as primary insured in the full principal amount of the Commitment; (ii) insures the Mortgage to be a valid first lien on the Mortgaged Property; and (iii) is free from exceptions for (1) matters that would be disclosed by a survey or inspection, (2) mechanics’, contractors’ or materialmen’s liens and lien claims, (3) rights and claims of parties in possession, (4) easements or claims of easements not shown by the public records, including appurtenant easements and (5) other exceptions not specifically approved by Lender and as set forth in Exhibit B. All real estate taxes are current and all levied and pending assessments as of the date of the Mortgage shall be paid in full. The policy shall include a Form 3.1 zoning endorsement, an ALTA Form 9 comprehensive endorsement, a variable rate endorsement, a survey endorsement, and such other endorsements as Lender may reasonably require under the circumstances. Any undefined easements shall be defined and any appurtenant easements required for the Mortgaged Property must be executed and delivered and must satisfy requirements of the Title Company and Lender in the sole and uncontrolled discretion of the Title Company, Lender and Lender’s legal counsel.
(d) An ALTA survey of the Mortgaged Property, satisfactory to Lender and the Title Company, prepared by a registered land surveyor, which will include the legal description and area of the Mortgaged Property, show and certify to the perimeter lot lines, dimensions and vectors, the location of all existing footings, foundations and improvements, utilities, easements, rights of way, building set back lines, curb lines and encroachments, and the intended location of the Project according to the Drawings and Specifications to be submitted and approved by Lender as provided herein. Said survey shall be prepared for Lender’s and the Title Company’s benefit and shall be certified by the surveyor in form acceptable to Lender and Title Company. The survey shall be updated, as necessary to show the footings or foundations of the Project when the footings or foundation is completed, and shall be updated again to show the location of the “as-built” Project prior to the final disbursement of Loan proceeds.
(e) Copies of all building and other permits necessary for construction of the Project. Lender shall also receive a certificate of the engineer (or the opinion of Borrower’s legal counsel) to the effect that all permits required by any governmental authority for construction and operation of the Project have been obtained.
(f) Evidence satisfactory to Lender that the Project complies with all building codes and zoning and subdivision ordinances applicable thereto, and that the Project and its use thereof are in compliance with all other state, federal, and local laws and regulations.
(g) Copies of the contracts between Borrower and the General Contractor, as well as the contracts between the General Contractor and all major subcontractors. The Construction Contract shall be a fixed-price or maximum-cost contract. All such contracts shall be in form satisfactory to Lender and Lender’s legal counsel and shall, together with the Drawings and Specifications, be assigned to Lender. The General Contractor, and any subcontractors or other contractors, if required by Lender, shall consent to such assignments. Borrower shall also provide to Lender any contract entered into by Borrower, or any proposed tenants or franchisees doing business on the property of Borrower, directly with any contractor, engineer, architect or professional concerning the provision of materials and/or labor and/or services to the Project.
(h) Internally prepared current financial statements of Borrower, certified as true and correct by the party giving the same. All such financial statements shall (i) indicate all assets, liabilities, contingent liabilities and income, and (ii) include separate financial statements for each significant asset (e.g., if partnership interests are shown as an asset, the financial statements of the partnership shall also be provided). All financial and credit information must be satisfactory to Lender in form and substance.
(i) Satisfactory soil test borings and soil reports that are acceptable to Lender.
(j) Written evidence from the proper municipal authorities and public utility companies that all utilities, including water, electricity and natural gas, sewage and related services are or will be available to the Mortgaged Property upon completion of the Project.
(k) All reciprocal easement agreements, maintenance agreements, and other easements relating to the Mortgaged Property as Lender or Lender’s legal counsel may require, if any, for parking, access, utility and other purposes, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content.
(l) Evidence satisfactory to Lender that no petroleum product or other Hazardous Substance is present on the Mortgaged Property, and that no asbestos-containing products, urea-formaldehyde foams or PCB’s are being used in the construction of the Project. Such evidence shall include a Phase I Environment Report, and if necessary a Phase II Environmental Report, prepared by a licensed engineer or other qualified environmental consultant acceptable to Lender. The report shall be addressed to Lender and state that it was prepared for Lender. If the report indicates that petroleum products or other Hazardous Substances are present, the report shall identify such materials and shall analyze (including cost and time factors) recommended methods of removal. Borrower warrants that no asbestos containing-products, urea-formaldehyde foam insulation or PCB’s will be used in the construction or equipping of the Project.
(m) Delivery of the Sworn Construction Statement and the Drawings and Specifications.
(n) Delivery of the Project Cost Statement certified by the Borrower.
(o) Evidence satisfactory to Lender that Borrower has expended or has deposited with the Lender or Disbursing Agent not less than the amount of the required Equity in payment of costs and expenses incurred in connection with the Project that would be otherwise properly payable from an Advance, together with satisfactory lien waivers for Hard Costs paid with such funds.
(p) The Disbursing Agreement, duly executed by the Disbursing Agent, Borrower and Lender.
(q) Delivery of a payment and performance bond from General Contractor.
(r) Payment to Lender of a commitment fee of $433,938.00.
(s) Copy of the Management and Operational Services Agreement.
(t) Delivery of UCC, tax lien, judgment and bankruptcy searches for the Borrower.
(u) Delivery of proof of insurance.
(v) Deposit or allocate Equity funds already on deposit with Lender the amount of $5,000,000 for working capital for the express purpose of hedging.
(w) Delivery of all executed Loan Documents in proper form for recording or filing, as applicable, and all necessary recordings and filings have been delivered to the Title Company for recording or filing.
(x) Lender shall have received from the Borrower the following, each, unless otherwise noted, dated as of the Closing Date:
(i) Copies of Borrower’s charter documents and all amendments thereto (the “Constituent Documents”), together with a good standing certificate from the Secretary of State of the State of Iowa and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such state, each dated within thirty (30) days prior to the Closing Date;
(ii) A Certificate of Borrower certifying (A) its Constituent Documents, (B) resolutions approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents, certified as of the Closing Date as being in full force and effect without modification or amendment, and (C) incumbency of the appropriate officer executing this Agreement and the other Loan Documents.
(y) Delivery by counsel to Borrower of a legal opinion concerning this transaction in substantially the form attached as Exhibit D.
(z) A Control Agreement related to each deposit or investment account maintained with any party other than Lender.
(aa) A collateral assignment in favor of Lender of each Material Contract in existence on the date hereof."
Appears in 1 contract
Sources: Construction Term Loan Agreement (Global Entertainment Corp)
Conditions Precedent to Lending. The obligation of Lender to make the initial Advance hereunder shall be subject to the condition precedent that Borrower shall be in compliance with the conditions contained in Section 3.02 and the further condition precedent that Lender shall have received the following:
(a) The Note, Mortgage, Assignment of Leases and Rents, Completion Guaranty, Process and Performance Guaranty, UCC Financing Statements, Environmental Indemnity Agreement, Opinion of Borrower’s Counsel, Borrower’s organizational documents, and other Loan Documents as required hereunder, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content, and duly executed and delivered to Lender.
(b) A current appraisal prepared by a state licensed appraiser approved by Lender indicating an appraised value of the Mortgaged Property as follows: an “as stabilized” value of the Project that will result in a Loan to value ratio of not more than sixty five percent (65%). The appraisal shall be addressed to Lender and state that it has been prepared on Lender’s behalf. The form of the appraisal and the appraisal methods shall otherwise be satisfactory to Lender and shall conform to all requirements of State and Federal law. Upon completion of construction, at the expense of Borrower, the appraiser shall reinspect and recertify the value of the Mortgaged Property “as built.”
(c) A “marked-up commitment” for a mortgagee’s title insurance policy duly endorsed by the Title Company that: (i) names Lender as primary insured in the full principal amount of the Commitment; (ii) insures the Mortgage to be a valid first lien on the Mortgaged Property; and (iii) is free from exceptions for (1) matters that would be disclosed by a survey or inspection, (2) mechanics’, contractors’ or materialmen’s liens and lien claims, (3) rights and claims of parties in possession, (4) easements or claims of easements not shown by the public records, including appurtenant easements and (5) other exceptions not specifically approved by Lender and as set forth in Exhibit B. All real estate taxes are current and all levied and pending assessments as of the date of the Mortgage shall be paid in full. The policy shall include a Form 3.1 zoning endorsement, an ALTA Form 9 comprehensive endorsement, a variable rate endorsement, a survey endorsement, and such other endorsements as Lender may reasonably require under the circumstances. Any undefined easements shall be defined and any appurtenant easements required for the Mortgaged Property must be executed and delivered and must satisfy requirements of the Title Company and Lender in the sole and uncontrolled discretion of the Title Company, Lender and Lender’s legal counsel.
(d) An ALTA survey of the Mortgaged Property, satisfactory to Lender and the Title Company, prepared by a registered land surveyor, which will include the legal description and area of the Mortgaged Property, show and certify to the perimeter lot lines, dimensions and vectors, the location of all existing footings, foundations and improvements, utilities, easements, rights of way, building set back lines, curb lines and encroachments, and the intended location of the Project according to the Drawings and Specifications to be submitted and approved by Lender as provided herein. Said survey shall be prepared for Lender’s and the Title Company’s benefit and shall be certified by the surveyor in form acceptable to Lender and Title Company. The survey shall be updated, as necessary to show the footings or foundations of the Project when the footings or foundation is completed, and shall be updated again to show the location of the “as-built” Project prior to the final disbursement of Loan proceeds.
(e) Copies of all building and other permits necessary for construction of the Project. Lender shall also receive a certificate of the engineer (or the opinion of Borrower’s legal counsel) to the effect that all permits required by any governmental authority for construction and operation of the Project have been obtained.
(f) Evidence satisfactory to Lender that the Project complies with all building codes and zoning and subdivision ordinances applicable thereto, and that the Project and its use thereof are in compliance with all other state, federal, and local laws and regulations.
(g) Copies of the contracts between Borrower and the General Contractor, as well as the contracts between the General Contractor and all major subcontractors. The Construction Contract shall be a fixed-price or maximum-cost contract. All such contracts shall be in form satisfactory to Lender and Lender’s legal counsel and shall, together with the Drawings and Specifications, be assigned to Lender. The General Contractor, and any subcontractors or other contractors, if required by Lender, shall consent to such assignments. Borrower shall also provide to Lender any contract entered into by Borrower, or any proposed tenants or franchisees doing business on the property of Borrower, directly with any contractor, engineer, architect or professional concerning the provision of materials and/or labor and/or services to the Project.
(h) Internally prepared current Current financial statements of Borrowerstatements, certified as true and correct by the party giving the same. All such financial statements shall (i) indicate all assets, liabilities, contingent liabilities and income, and (ii) include separate financial statements for each significant asset (e.g., if partnership interests are shown as an asset, the financial statements of the partnership shall also be provided). All financial and credit information must be satisfactory to Lender in form and substance.
(i) Satisfactory soil test borings and soil reports that are acceptable to Lender.
(j) Written evidence from the proper municipal authorities and public utility companies that all utilities, including water, electricity and natural gas, sewage and related services are or will be available to the Mortgaged Property upon completion of the Project.
(k) All reciprocal easement agreements, maintenance agreements, and other easements relating to the Mortgaged Property as Lender or Lender’s legal counsel may require, if any, for parking, access, utility and other purposes, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content.
(l) Evidence satisfactory to Lender that no petroleum product or other Hazardous Substance is present on the Mortgaged Property, and that no asbestos-containing products, urea-formaldehyde foams or PCB’s are being used in the construction of the Project. Such evidence shall include a Phase I Environment Report, and if necessary a Phase II Environmental Report, prepared by a licensed engineer or other qualified environmental consultant acceptable to Lender. The report shall be addressed to Lender and state that it was prepared for Lender. If the report indicates that petroleum products or other Hazardous Substances are present, the report shall identify such materials and shall analyze (including cost and time factors) recommended methods of removal. Borrower warrants that no asbestos containing-products, urea-formaldehyde foam insulation or PCB’s will be used in the construction or equipping of the Project.
(m) Delivery of the Sworn Construction Statement and the Drawings and Specifications.
(n) Delivery of the Project Cost Statement certified by the Borrower.
(o) Evidence satisfactory to Lender that Borrower has expended or has deposited with the Lender or Disbursing Agent not less than the amount of the required Equity in payment of costs and expenses incurred in connection with the Project that would be otherwise properly payable from an Advance, together with satisfactory lien waivers for Hard Costs paid with such funds.
(p) The Disbursing Agreement, duly executed by the Disbursing Agent, Borrower and Lender.
(q) Delivery of a payment and performance bond from General Contractor.
(r) Payment to Lender of a commitment fee of $433,938.00443,750.
(s) Copy of the Management and Operational Services Agreement.
(t) Delivery of UCC, tax lien, judgment and bankruptcy searches for the Borrower.
(u) Delivery of proof of insurance.
(v) Deposit or allocate Equity funds already on deposit with Lender the amount of $5,000,000 for working capital for the express purpose of hedging.
(w) Delivery of all executed Loan Documents in proper form for recording or filing, as applicable, and all necessary recordings and filings have been delivered to the Title Company for recording or filing.
(x) Lender shall have received from the Borrower the following, each, unless otherwise noted, dated as of the Closing Date:
(i) Copies of Borrower’s charter documents and all amendments thereto (the “Constituent Documents”), together with a good standing certificate from the Secretary of State of the State of Iowa and, to the extent generally available, a certificate or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such state, each dated within thirty (30) days prior to the Closing Date;
(ii) A Certificate of Borrower certifying (A) its Constituent Documents, (B) resolutions approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents, certified as of the Closing Date as being in full force and effect without modification or amendment, and (C) incumbency of the appropriate officer its general partner executing this Agreement and the other Loan Documents.
(y) Delivery by counsel to Borrower of a legal opinion concerning this transaction in substantially the form attached as Exhibit D.
(z) A Control Agreement related to each deposit or investment account maintained with any party other than Lender.
(aa) A collateral assignment in favor of Lender of each Material Contract in existence on the date hereof.
Appears in 1 contract
Sources: Construction Term Loan Agreement (Western Dubuque Biodiesel, LLC)
Conditions Precedent to Lending. The obligation of Lender to make advances of the initial Advance hereunder shall be Loan is subject to the condition precedent that accuracy, as of the date hereof, of the representations and warranties herein contained, to the performance by Borrower shall of its obligations to be in compliance with performed hereunder and to the conditions contained in Section 3.02 and satisfaction of the following further condition precedent that Lender shall have received the followingconditions:
(a) The Note, Mortgage, Assignment of Leases representations and Rents, Completion Guaranty, Process and Performance Guaranty, UCC Financing Statements, Environmental Indemnity Agreement, Opinion of Borrower’s Counsel, Borrower’s organizational documents, and other Loan Documents as required hereunder, all of which warranties contained in Article VII hereof shall be satisfactory to Lender and Lender’s legal counsel true in form and content, and duly executed and delivered to Lender.all material respects;
(b) A current appraisal prepared by a state licensed appraiser approved by Lender indicating an appraised value On or before the Closing Date, Borrower shall have delivered to Lender: (i) resolutions authorizing Borrower to enter into and perform all transactions set forth in this Agreement (including without limitation the execution and delivery of this Agreement and the Loan Documents); (ii) certified copies of the Mortgaged Property as follows: an “as stabilized” value of the Project that will result in a Loan to value ratio of not more than sixty five percent (65%). The appraisal shall be addressed to Lender and state that it has been prepared on Lender’s behalf. The form of the appraisal and the appraisal methods shall otherwise be satisfactory to Lender and shall conform to all requirements of State and Federal law. Upon completion of construction, at the expense bylaws of Borrower, in form satisfactory to Lender; (iii) certificate of good standing for Borrower from the appraiser shall reinspect and recertify the value Delaware Secretary of State; (iv) a certified copy of the Mortgaged Property “as builtArticles of Incorporation from the Delaware Secretary of State for Borrower; and (v) evidence of qualification to do business in Arkansas and having full legal authority to enter into the USC Note and the right to enforce the USC Note.”
(c) A “marked-up commitment” for a mortgagee’s title insurance policy duly endorsed by Borrower shall have executed and delivered the Title Company thatfollowing documents: (i) names Lender as primary insured in the full principal amount of Note, this Agreement, the Commitment; (ii) insures Security Agreement, the Mortgage to be a valid first lien on Allonge, the Mortgaged Property; and (iii) is free from exceptions for (1) matters that would be disclosed by a survey or inspection, (2) mechanics’, contractors’ or materialmen’s liens and lien claims, (3) rights and claims of parties in possession, (4) easements or claims of easements not shown by the public records, including appurtenant easements and (5) other exceptions not specifically approved by Lender and as set forth in Exhibit B. All real estate taxes are current and all levied and pending assessments as of the date of the Mortgage shall be paid in full. The policy shall include a Form 3.1 zoning endorsement, an ALTA Form 9 comprehensive endorsement, a variable rate endorsement, a survey endorsementWarrant, and such other endorsements loan documents as Lender may reasonably require under deems necessary or desirable to perfect its first and prior security interest in and to the circumstances. Any undefined easements shall be defined and any appurtenant easements required for the Mortgaged Property must be executed and delivered and must satisfy requirements of the Title Company and Lender Collateral, as provided in the sole and uncontrolled discretion of the Title Company, Lender and Lender’s legal counselSection 4.1 hereof.
(d) An ALTA survey All proceedings to be taken in connection with the transaction contemplated by this Agreement and all documents incident thereto shall be satisfactory in form and substance to Lender and its counsel, and Lender shall have received copies of the Mortgaged Property, all documents which it may reasonably request in connection with such transactions and all corporate proceedings with respect thereto in form and substance satisfactory to Lender and the Title Companyits counsel; and Lender has received lien search certificates, prepared by a registered land surveyorat Borrower’s sole cost and expense, which will include the legal description and area of the Mortgaged Property, show and certify to the perimeter lot lines, dimensions and vectors, the location of all existing footings, foundations and improvements, utilities, easements, rights of way, building set back lines, curb lines and encroachmentscovering Borrower, and evidencing the intended location first, exclusive and paramount interest of Lender in the Project according to the Drawings and Specifications to be submitted and approved by Lender as provided herein. Said survey shall be prepared for Lender’s and the Title Company’s benefit and shall be certified by the surveyor in form acceptable to Lender and Title Company. The survey shall be updated, as necessary to show the footings or foundations of the Project when the footings or foundation is completed, and shall be updated again to show the location of the “as-built” Project prior to the final disbursement of Loan proceedsCollateral.
(e) Copies of all building If requested by Lender, at Lender’s sole option, Borrower shall provide Lender with an opinion from counsel to Borrower, in such form and other permits necessary for construction of the Project. Lender shall also receive a certificate of the engineer (or the opinion of Borrower’s legal counsel) to the effect that all permits content as required by any governmental authority for construction and operation of the Project have been obtainedLender.
(f) Evidence satisfactory Borrower shall deliver to Lender that the Project complies with all building codes and zoning and subdivision ordinances applicable theretooriginal USC Note, and that the Project and its use thereof are in compliance with all other state, federal, and local laws and regulations.
(g) Copies of the contracts between Borrower and the General Contractor, as well as the contracts between the General Contractor and all major subcontractors. The Construction Contract shall be a fixed-price or maximum-cost contract. All such contracts shall be in form satisfactory to Lender and Lender’s legal counsel and shall, together with the Drawings and Specifications, be assigned to Lender. The General Contractor, and any subcontractors or other contractors, if required by Lender, shall consent to such assignments. Borrower shall also provide to Lender any contract entered into by Borrower, or any proposed tenants or franchisees doing business on the property of Borrower, directly with any contractor, engineer, architect or professional concerning the provision of materials and/or labor and/or services endorsed pursuant to the Project.
(h) Internally prepared current financial statements of Borrower, certified as true and correct by the party giving the same. All such financial statements shall (i) indicate all assets, liabilities, contingent liabilities and income, and (ii) include separate financial statements for each significant asset (e.g., if partnership interests are shown as an asset, the financial statements of the partnership shall also be provided). All financial and credit information must be satisfactory to Lender in form and substance.
(i) Satisfactory soil test borings and soil reports that are acceptable to Lender.
(j) Written evidence from the proper municipal authorities and public utility companies that all utilities, including water, electricity and natural gas, sewage and related services are or will be available to the Mortgaged Property upon completion of the Project.
(k) All reciprocal easement agreements, maintenance agreements, and other easements relating to the Mortgaged Property as Lender or Lender’s legal counsel may require, if any, for parking, access, utility and other purposes, all of which shall be satisfactory to Lender and Lender’s legal counsel in form and content.
(l) Evidence satisfactory to Lender that no petroleum product or other Hazardous Substance is present on the Mortgaged Property, and that no asbestos-containing products, urea-formaldehyde foams or PCB’s are being used in the construction of the Project. Such evidence shall include a Phase I Environment Report, and if necessary a Phase II Environmental Report, prepared by a licensed engineer or other qualified environmental consultant acceptable to Lender. The report shall be addressed to Lender and state that it was prepared for Lender. If the report indicates that petroleum products or other Hazardous Substances are present, the report shall identify such materials and shall analyze (including cost and time factors) recommended methods of removal. Borrower warrants that no asbestos containing-products, urea-formaldehyde foam insulation or PCB’s will be used in the construction or equipping of the Project.
(m) Delivery of the Sworn Construction Statement and the Drawings and Specifications.
(n) Delivery of the Project Cost Statement certified by the Borrower.
(o) Evidence satisfactory to Lender that Borrower has expended or has deposited with the Lender or Disbursing Agent not less than the amount of the required Equity in payment of costs and expenses incurred in connection with the Project that would be otherwise properly payable from an Advance, together with satisfactory lien waivers for Hard Costs paid with such funds.
(p) The Disbursing Agreement, duly executed by the Disbursing Agent, Borrower and Lender.
(q) Delivery of a payment and performance bond from General Contractor.
(r) Payment to Lender of a commitment fee of $433,938.00.
(s) Copy of the Management and Operational Services Agreement.
(t) Delivery of UCC, tax lien, judgment and bankruptcy searches for the Borrower.
(u) Delivery of proof of insurance.
(v) Deposit or allocate Equity funds already on deposit with Lender the amount of $5,000,000 for working capital for the express purpose of hedging.
(w) Delivery of all executed Loan Documents in proper form for recording or filing, as applicable, and all necessary recordings and filings have been delivered to the Title Company for recording or filing.
(x) Lender shall have received from the Borrower the following, each, unless otherwise noted, dated as of the Closing Date:
(i) Copies of Borrower’s charter documents and all amendments thereto (the “Constituent Documents”), together with a good standing certificate from the Secretary of State of the State of Iowa andAllonge, to the extent generally available, a certificate or other evidence order of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of such state, each dated within thirty (30) days prior to the Closing Date;
(ii) A Certificate of Borrower certifying (A) its Constituent Documents, (B) resolutions approving and authorizing the execution, delivery, and performance of this Agreement and the other Loan Documents, certified as of the Closing Date as being in full force and effect without modification or amendment, and (C) incumbency of the appropriate officer executing this Agreement and the other Loan Documents.
(y) Delivery by counsel to Borrower of a legal opinion concerning this transaction in substantially the form attached as Exhibit D.
(z) A Control Agreement related to each deposit or investment account maintained with any party other than Lender.
(aa) A collateral assignment in favor of Lender of each Material Contract in existence on the date hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Adamis Pharmaceuticals Corp)