Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required Lenders: (a) Such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower. (b) The Guaranty, duly executed by each Guarantor. (c) The Security Documents, each properly executed on behalf of the appropriate Obligor and any other party thereto, together with: (i) Financing statements and other filings with respect to each Obligor to be filed in each jurisdiction and other offices which, in the opinion of the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Documents, to the extent such Liens can be perfected by filing. (ii) Current searches of appropriate filing offices in each jurisdiction in which an Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of state and other offices to the extent required by the Administrative Agent) showing that no state or federal tax liens have been filed and remain in effect against any Obligor, and that no financing statements or other notifications or filings have been filed and remain in effect against any Obligor, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1. (iii) Pursuant to the terms of the payoff letter described in subsection (d) below, the agreement of JPMorgan Chase Bank, National Association, to deliver to the Administrative Agent, the original stock certificates (or other applicable evidence of ownership) evidencing (i) all issued and outstanding Capital Stock of each Obligor (other than the Borrower), together with stock powers executed in blank by the relevant Obligor, and (ii) 65% of all issued and outstanding Capital Stock of each Subsidiary which is a Foreign Subsidiary. (iv) stock powers executed in blank by the relevant Obligor with respect to the Capital Stock described in subsection (c)(ii) above. (d) A payoff letter in form and content acceptable to the Administrative Agent from JPMorgan Chase Bank, National Association, as administrative agent and collateral agent, together with evidence of payment in full of all Debt (other than certain letters of credit to be cash collateralized) of the Borrower arising from or related to the Amended and Restated Credit Agreement dated November 13, 2009, among the Borrower, certain lenders party thereto, JPMorgan Chase Bank, National Association, as administrative agent and collateral agent, and release of all related Liens. (e) Evidence of all insurance required by this Agreement and the Security Documents, together with certificates showing the Administrative Agent, for the benefit of the Lender Parties, as lender loss payee and additional insured thereunder. (f) Certificates of the secretary or other appropriate officer of the Borrower and each other Obligor (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which the Borrower or such Obligor, as applicable, is a party have been duly approved by all necessary action of the Governing Board of the Borrower or such Obligor, as applicable, and attaching true and correct copies of the applicable resolutions granting such approval, (ii) certifying that attached to such certificate are true and correct copies of the Organizational Documents of the Borrower or such Obligor, as applicable, together with such copies, and (iii) certifying the names of the officers of the Borrower or such Obligor, as applicable, that are authorized to sign the Loan Documents and other documents contemplated hereunder, together with the true signatures of such officers. The Lender Parties may conclusively rely on such certificate until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower or such Obligor, as applicable, canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate. (g) A certificate of good standing for the Borrower and each other Obligor from the Secretary of State (or the appropriate official) of the state of formation of the Borrower or such Obligor, as applicable, dated not more than 30 days prior to the Closing Date. (h) A signed copy of an opinion of counsel for the Borrower and each other Obligor addressed to the Administrative Agent, on behalf of the Lenders, with respect to the matters contemplated by the Loan Documents. (i) Payment of all fees and expenses then due and payable pursuant to Sections 2.11 and 9.6(a) hereof.
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Conditions Precedent to the Initial Credit Extension. The obligation of the Lenders Lender Parties to effect any Credit Extension is subject to the condition precedent that, on or before the day of the first Credit Extension, and in any event on or before the Closing Date, the Administrative Agent shall have received the following, each in form and substance satisfactory to the Required LendersAdministrative Agent:
(a) Such such Notes as shall may be requested by any Lenders, each properly executed on behalf of the Borrower.;
(b) The Guarantythe Support and Subordination Agreement, duly properly executed by each Guarantor.on behalf of the Borrower and GPRE;
(c) The the Perfection Certificate, properly executed on behalf of the Borrower;
(d) the Security Documents, each properly executed on behalf of the appropriate Obligor and any other party theretoBorrower, together with:
(i) Financing financing statements and other filings with respect to each Obligor the Borrower to be filed in each jurisdiction and other offices whichthat, in the opinion of the Administrative Agent, is reasonably necessary to perfect the Liens created by the Security Documents, to the extent such Liens can be perfected by filing.;
(ii) Current current searches of appropriate filing offices in each jurisdiction in which an Obligor the Borrower is organized, has an office or otherwise conducts business (including including, but not limited to to, patent and trademark offices, secretaries of state and other offices to the extent required by the Administrative Agentcounty recorders) showing that no state or federal tax liens Liens have been filed and remain in effect against any Obligorthe Borrower, and that no financing statements or other notifications or filings have been filed and remain in effect against any Obligorthe Borrower, other than those for which the Administrative Agent has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 6.1.;
(iii) Pursuant to a control agreement in respect of each Brokerage Account and each deposit, securities and other account maintained by the terms Borrower, in each case properly executed on behalf of each of the payoff letter described parties thereto;
(e) a Second Amendment to each Existing Mortgage, properly executed on behalf of the Borrower, together with: (i) evidence of the recording thereof in subsection the real estate records of the jurisdiction where the related Existing Property is located; and (dii) below, the agreement of JPMorgan Chase Bank, National Association, to deliver a final mortgagee’s title policy issued by a title insurance company acceptable to the Administrative Agent, in favor of the original stock certificates Administrative Agent, for the benefit of the Lender Parties, in an insured amount not less than $78,000,000 (in the aggregate), insuring that such Existing Mortgages (as amended by such Second Amendments) are valid and enforceable first-priority Liens, on the Borrower’s fee simple title (or leasehold estate, as the case may be) to the real estate and other applicable evidence of ownership) evidencing (i) all issued real property therein described, free and outstanding Capital Stock of each Obligor (other than the Borrower), together with stock powers executed in blank by the relevant Obligor, and (ii) 65% clear of all issued standard exceptions and outstanding Capital Stock of each Subsidiary which is a Foreign Subsidiary.
(iv) stock powers executed in blank by the relevant Obligor with respect to the Capital Stock described in subsection (c)(ii) above.
(d) A payoff letter in form defects and content acceptable to Liens except such as the Administrative Agent from JPMorgan Chase Bankin its sole discretion may approve, National Associationincluding, without limitation, the following endorsements: ALTA form 9.0, ALTA form 3.1 (with parking), contiguity, utility, last dollar, separate tax parcel, no special assessments, usury, forced removal, revolving credit, mortgage registry tax and such other endorsements as administrative agent and collateral agent, together with evidence of payment in full of all Debt (other than certain letters of credit to be cash collateralized) of the Borrower arising from or related to the Amended and Restated Credit Agreement dated November 13, 2009, among the Borrower, certain lenders party thereto, JPMorgan Chase Bank, National Association, as administrative agent and collateral agent, and release of all related Liens.Administrative Agent may reasonably require;
(ef) Evidence a current, certified appraisal conforming to all applicable requirements of FIRREA establishing the fair market value of each Existing Property;
(g) a flood zone designation for each Existing Property;
(h) evidence of all insurance required by this Agreement and the terms of the Security Documents, including, but not limited to, flood insurance if the real estate described in any Existing Mortgage is located within the 100-year flood plain, together with certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the Lender Parties, as mortgagee, additional insured and lender loss payee and additional insured thereunder.;
(fi) Certificates certificates of the secretary or other appropriate officer of each of the Borrower and each other Obligor GPRE (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which the Borrower or such Obligor, as applicable, Person is a party have been duly approved by all necessary action of the Governing Board of the Borrower or such Obligor, as applicablePerson, and attaching true true, correct and correct complete copies of the applicable resolutions granting such approval, ; (ii) certifying that attached to such certificate certificates are true true, correct and correct complete copies of the Organizational Documents of the Borrower or such Obligor, as applicablePerson, together with such copies, ; and (iii) certifying the names of the officers of the Borrower or such Obligor, as applicable, Person that are authorized to sign the Loan Documents to which such Person is a party and other documents contemplated hereunder, together with the true signatures of such officers. The ; the Lender Parties may conclusively rely on such certificate certificates until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of the Borrower or such Obligor, as applicable, Person canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate.;
(gj) A a certificate of good standing for each of the Borrower and each other Obligor GPRE from the Secretary of State (or the appropriate official) of the state of formation of the Borrower or such Obligor, as applicablePerson, dated not more than 30 days prior to the Closing Date.;
(hk) A signed the following financial information of the Consolidated Group and the Borrower: (i) consolidated and consolidating financial statements for the Consolidated Group for the fiscal year ending December 31, 2010, with such consolidated financial statements audited by independent public accountants acceptable to the Administrative Agent, and interim financial statements for the Borrower for the period ended November 30, 2011, including balance sheets and statements of income and retained earnings prepared in conformity with GAAP; (ii) a one-year (commencing January 1, 2012) business plan and pro-forma financial projections for the Borrower’s 2012 fiscal year, including an income statement, balance sheet and cash flow statement prepared in accordance with GAAP, except that footnotes required under GAAP shall not be included, showing compliance with the terms and conditions of this Agreement; and (iii) such other financial information as the Administrative Agent may request;
(l) a copy of an opinion the Borrower’s risk management policies and procedures (current as of the Closing Date), which have been duly approved by the Governing Board of the Borrower and are acceptable to the Administrative Agent;
(m) signed copies of opinions of counsel for the Borrower and each other Obligor GPRE addressed to the Administrative Agent, on behalf of the Lenders, with respect to the matters contemplated by the Loan Documents.;
(in) Payment the Fee Letter of even date herewith, properly executed on behalf of the Borrower;
(o) payment of all fees and expenses then due and payable pursuant to Sections 2.11 2.12 and 9.6(a) hereof; and
(p) evidence satisfactory to the Administrative Agent and Farm Credit Services of America, FLCA, that the Borrower is eligible to obtain loans from Farm Credit Services of America, FLCA.
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Sources: Credit Agreement (Green Plains Renewable Energy, Inc.)