Conditions to Each Advance. As conditions precedent to each Advance, including the first Advance, in addition to all other requirements herein, Borrower must satisfy the following requirements and, if required by Lender, deliver to Lender evidence of such satisfaction: (a) All conditions precedent to the first Advance or stated elsewhere herein shall have been satisfied. (b) There shall then exist no Default or Event of Default. (c) The representations and warranties made in this Agreement shall be true and correct on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time. (d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender. (e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property. (f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense. (g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area. (h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Construction Loan Agreement (Micropac Industries Inc)
Conditions to Each Advance. As conditions precedent The obligations of Lender to each make any Advance (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole judgment of Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All Borrower shall have delivered to Lender a Borrowing Certificate for the Advance executed by an authorized officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date of such Advance that the conditions precedent to the first Advance or stated elsewhere herein shall contained in this Section 4.2 have been satisfied.; provided, however, that any determination as to whether to fund Advances or extensions of credit shall be made by Lender in its sole discretion;
(b) There each of the representations and warranties made by Borrower in or pursuant to this Agreement shall then exist be accurate, before and after giving effect to such Advance, and no Default or Event of Default.Default shall have occurred or be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(c) The representations and warranties made in this Agreement shall be true and correct on and as of immediately after giving effect to the date of each requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed either the Availability or the Facility Cap, the aggregate outstanding principal amount of Term Loan A shall not exceed the Maximum Term Loan A Amount and the request for an Advance aggregate outstanding principal amount of Term Loan B shall constitute not exceed the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Maximum Term Loan B Amount;
(d) The Title Policy except as disclosed in the historical financial statements, there shall be endorsed and extendedno liabilities or obligations with respect to Borrower of any nature whatsoever which, if required by Lendereither individually or in the aggregate, would reasonably be likely to cover each Advance with no additional title exceptions objectionable to Lender.have a Material Adverse Effect;
(e) Borrower Lender shall procure have received all fees, charges and deliver expenses payable to Lender, if required by Lender, releases Lender on or waivers of mechanic’s liens and receipted bills showing payment of all amounts due prior to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect such date pursuant to the Property.Loan Documents; and
(f) An inspection of all in form and acceptable report on the Improvements by Inspecting Personsubstance satisfactory to Lender in its sole discretion, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, Lender shall have been furnished received such consents, approvals and agreements, including, without limitation, any applicable Warehouse Waivers and Consents with respect to any and all leases, warehouses and other locations set forth on Schedule 5.4, from such third parties as Lender within ten and its counsel shall determine are necessary or desirable with respect to (10i) days of laying of each foundation of the Improvements showing no encroachment of Loan Documents and/or the Improvements on any boundary linetransactions contemplated thereby, easement, building setback line and/or (ii) claims against Borrower or Guarantor (other restricted areathan Parent) or the Collateral.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Credit and Security Agreement (Ventures National Inc)
Conditions to Each Advance. As conditions precedent When Borrower believes it is -------------------------- entitled to each an Advance, including the first Advance, in addition to all other requirements herein, Borrower must satisfy shall furnish Lender with the following requirements andall in form satisfactory to Lender, at least ten (10) Business Days prior to the date that the Advance is to be made:
(i) Disbursement Request (the "Disbursement Request") in the -------------------- form of (i) AIA Form G702, (ii) AIA Form G702A and (iii) the Borrower's Affidavit attached hereto as Exhibit 24(a)(i) hereof, fully ---------------- completed and executed. Any materials covered by a Disbursement Request must be suitably stored at the construction site or, if required by Lender, deliver to Lender evidence of such satisfaction:
(a) All conditions precedent to actually incorporated into the first Advance or stated elsewhere herein shall have been satisfiedImprovements.
(b) There shall then exist no Default or Event of Default.
(cii) The representations certification by Borrower, the Borrower's supervising architect, the General Contractor, and warranties made Lender's Inspector, that: (A) all work (including work, the cost of which was paid from sources other than the Construction Loan) performed is in this Agreement shall substantial accordance with the Plans and Specifications; (B) all governmental licenses and permits required for the Improvements as then completed have been obtained and will be exhibited to the Lender upon request; (C) the Improvements (including Improvements, the cost of which was paid from sources other than the Construction Loan) as then completed do not violate, and, if further completed in accordance with the Plans and Specifications, will not violate any law, ordinance, rule or regulation or covenant, condition or restriction affecting the Real Property; (D) the remaining undisbursed proceeds of the Construction Loan are sufficient to pay for the completion of the Improvements; (E) the information set forth in the Disbursement Request is true and correct on and as of accurate in all material respects; (F) the date of each Advance, and the request for Advance is in an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01value of the work and materials for which such Advance is requested.
(iii) Paid invoices and lien waivers relating to the construction of the Improvements for all work through the date of the previous Disbursement Request.
(iv) Evidence that any inspection required by any state, city or other governmental authority has been completed with results satisfactory to that authority.
Appears in 1 contract
Sources: Construction Loan Agreement (Signature Resorts Inc)
Conditions to Each Advance. As conditions precedent The obligation of Lender to each Advance, including make any Advance subsequent to the first AdvanceInitial Advance is subject to the satisfaction, in addition to all other requirements hereinthe sole judgment of Lender in the exercise of its Permitted Discretion, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All conditions precedent Lender shall have received, in form and substance satisfactory to Lender, (i) evidence of the repayment in full and termination of any existing indebtedness other than Permitted Indebtedness and all related documents, agreements and instruments and of all Liens, security interests and Uniform Commercial Code financing statements relating thereto or, in the sole discretion of Lender, such existing indebtedness is (A) expressly subordinated to the first Advance Obligations of Borrower hereunder pursuant to a Subordination Agreement acceptable in form and substance to Lender, (B) matures subsequent to the Maturity Date, (C) does not require any payment other than interest, reasonable fees and expenses during the Term, and (D) will receive no payments following an Event of Default under this Agreement, and (ii) release and termination of any and all Liens, security interest and/or Uniform Commercial Code financing statements in, on, against or stated elsewhere herein shall have been satisfied.with respect to any of the Collateral (other than Permitted Liens);
(b) There Borrower shall then exist no Default have delivered to Lender a Landlord Waiver and Consent with respect to that portion of the space occupied by Borrower necessary for Lender or its agent to b▇▇▇ and collect Accounts upon an Event of Default.;
(c) The Borrower shall have provided Lender with all information (including, including without limitation, user identifications and passwords) necessary for Lender to have on-line access to view all information regarding all of Borrower’s bank accounts;
(d) Borrower shall have delivered to Lender a Borrowing Certificate for the Advance executed by an authorized officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date of such Advance that the conditions contained in this Section 4.2 have been satisfied; provided, however, that any determination as to whether to fund Advances or extensions of credit shall be made by Lender in its Permitted Discretion;
(e) each of the representations and warranties made by Borrower in or pursuant to this Agreement shall be true and correct accurate in all material respects on and as of the date the advance is requested as if made on and as of each Advancesuch date, before and the request for an Advance after giving effect to such advance; and no Default or Event of Default shall constitute the representation have occurred and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases continuing or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect would exist after giving effect to the Property.Advance under the Revolving Facility on such date;
(f) An inspection immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed either the Availability and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.Facility Cap;
(g) A foundation survey, if required by Lender, Lender shall have been furnished received on or prior to the date of the requested Advance all fees, charges and expenses payable to Lender within ten (10) days of laying of each foundation of on or prior to such date pursuant to the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.Loan Documents;
(h) The sum Lender shall have received the results of a suits, liens, and judgments search of state court records which shows no exceptions to the Principal Debt plus the amount of the requested Advance Borrower’s representations and warranties herein; and
(i) Lender shall not be have received such other documents, certificates or information as Lender may reasonably request, all in excess of the amount then available under Section 2.01form and substance reasonably satisfactory to Lender.
Appears in 1 contract
Sources: Credit and Security Agreement (Selway Capital Acquisition Corp.)
Conditions to Each Advance. As conditions precedent The obligations of Lender to each make any Advance (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole judgment of Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All Borrower shall have delivered to Lender a Borrowing Certificate for the Advance executed by an authorized officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date of such Advance that the conditions precedent to the first Advance or stated elsewhere herein shall contained in this Section 4.2 have been satisfied.; provided, however, that any determination as to whether to fund Advances or extensions of credit shall be made by Lender in its Permitted Discretion;
(b) There each of the representations and warranties made by Borrower in or pursuant to this Agreement shall then exist be accurate, before and after giving effect to such Advance, and no Default or Event of Default.Default shall have occurred or be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(c) The representations and warranties made in this Agreement shall be true and correct on and as of immediately after giving effect to the date of each requested Advance, (i) the aggregate outstanding principal amount of Advances under the Revolving Facility shall not exceed either the Availability or the Facility Cap, (ii) the aggregate outstanding principal amount of Advances drawn by CM shall not exceed either the CM Availability or the CM Facility Cap, (iii) the aggregate outstanding principal amount of Advances drawn by OHR-SSM shall not exceed either the OHR-SSM Availability or the OHR-SSM Facility Cap, and (iv) the request for an Advance aggregate outstanding principal amount of Advances drawn by OHR shall constitute not exceed either the representation and warranty by Borrower that such representations and warranties are true and correct at such time.OHR Availability or the Facility Cap;
(d) The Title Policy except as disclosed in the historical financial statements, there shall be endorsed and extendedno liabilities or obligations with respect to Borrower of any nature whatsoever which, if required by Lendereither individually or in the aggregate, would reasonably be likely to cover each Advance with no additional title exceptions objectionable to Lender.have a Material Adverse Effect; and
(e) Borrower Lender shall procure have received all fees, charges and deliver expenses payable to Lender, if required by Lender, releases Lender on or waivers of mechanic’s liens and receipted bills showing payment of all amounts due prior to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect such date pursuant to the PropertyLoan Documents.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Occupational Health & Rehabilitation Inc)
Conditions to Each Advance. As conditions precedent The Obligation of each Lender to make each Advance, including of its Advances hereunder is subject to the first Advance, in addition to all other requirements herein, Borrower must satisfy satisfaction of the following requirements andconditions precedent:
(i) On the applicable Order Date, if required by Lender, deliver the Borrower shall have furnished to Lender evidence of such satisfactionHNS:
(a) All conditions precedent a purchase order (a "Base Station Equipment Purchase Order") conforming to the first Advance requirements of the Manufacturing Agreement setting forth the Base Station Equipment to be financed hereunder and providing for a delivery date conforming to the requirements of the Manufacturing Agreement and in any event on or stated elsewhere herein shall have been satisfied.prior to June 30, 1999;
(b) There shall then exist no Default at the option of the Borrower (in order to take advantage of the cancellation rights set forth in Section 3.3(a)), a written certificate signed by the Chief Financial Officer of the Borrower listing the country, state and county (or Event other applicable local jurisdiction) in which each item of Default.Base Station Equipment subject to such Base Station Equipment Purchase Order will be first installed for operation after delivery from HNS (with a copy of such certificate to the Collateral Agent (if different from HNS)); and
(c) The representations a nonrefundable cash payment of ten percent (10%) (as adjusted prior to the applicable Advance Date to reflect Changes made pursuant to and warranties made as defined in this Agreement the Manufacturing Agreement) of the aggregate purchase price for the Base Station Equipment covered by the applicable Base Station Equipment Purchase Order. For the avoidance of doubt, all such cash payments shall be true retained by HNS as partial payment for the Base Station Equipment covered by the applicable Base Station Equipment Purchase Order and correct on and as shall not reduce the unpaid amount of the Obligations.
(ii) no later than forty-five (45) days before the delivery date specified in the applicable Base Station Equipment Purchase Order, the Borrower shall have furnished to HNS a written certificate signed by the Chief Financial Officer of the Borrower (a) setting forth the aggregate amount of the Advances requested by the Borrower in connection with such Base Station Equipment Purchase Order (which designation shall be irrevocable) and (2) stating that the aggregate amount of the Advances requested by the Borrower in connection with the applicable Base Station Equipment Purchase Order, when aggregated with all prior Advances, will not exceed the Maximum Advance Amount.
(iii) no later than forty-five (45) days before the delivery date specified in the applicable Base Station Equipment Purchase Order, the Borrower shall have furnished to the Collateral Agent, at the Borrower's expense;
(1) if the Borrower did not provide HNS on the applicable Order Date with the information specified in Section 3.2(i)(b), a written certificate signed by the Chief Financial Officer of the Borrower listing the country, state and county (or other applicable local jurisdiction) in which each Advance, item of Base Station Equipment subject to such Base Station Equipment Purchase Order will be first installed for operation after delivery from HNS and (2) duly-executed Uniform Commercial Code financing statements and/or fixture filings (or the functional equivalent in jurisdictions not subject to the Uniform Commercial Code) reasonably deemed necessary or desirable by the Collateral Agent to perfect its security interest in the Base Station Equipment to be sold to the Borrower pursuant to the Manufacturing Agreement and the request applicable Base Station Equipment Purchase Order, in form suitable for an Advance shall constitute filing in the representation appropriate filing offices;
(b) the results of Uniform Commercial Code filing searches (or the functional equivalent in jurisdictions not subject to the Uniform Commercial Code) indicating that upon the sale of the applicable Base Station Equipment to the Borrower and warranty the first installation for operation thereof, the Collateral Agent will have, for its benefit and the ratable benefit of the Lenders, a first- priority perfected security interest in such Base Station Equipment, subject only to Permitted Liens;
(c) with respect to any Base Station Equipment to be located on any real property the owner or mortgagee of which (by Borrower statute, contract or otherwise) will have a Lien or other claim on such Base Station Equipment that is prior in right to the Lien of the Collateral Agent in such representations Base Station Equipment under the Security Agreement and warranties the rental and other payment obligations for which are true in the aggregate in excess of $10,000 per month (each, a "Landlord Waiver Location"), instruments executed by such owner and/or mortgagee, waiving or releasing such Lien or other claim, in suitable form for recording in the appropriate recording office (except to the extent that the aggregate purchase price of all Base Station Equipment located at Landlord Waiver Locations and correct at not subject to such time.waiver or release does not exceed five percent (5%) of the aggregate purchase price of all Base Station Equipment then subject to the Lien of the Security Agreement); and
(d) The Title Policy shall be endorsed and extendedif reasonably deemed necessary or desirable by the Collateral Agent in its sole discretion, if required by Lenderlegal opinions (except as to priority (unless, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation jurisdictions outside of the Improvements showing no encroachment United States, such opinions are customarily given in similar circumstances)), search results, certificates from governmental officials (United States or foreign) or other agreements, instruments or documents providing comfort to the Collateral Agent that, upon delivery to the Borrower (and thereafter until such security interest is released in accordance with the terms hereof and of the Improvements on any boundary lineSecurity Agreement), easementthe Collateral Agent will have, building setback line or other restricted area.
(h) The sum for its benefit and the ratable benefit of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.Lenders, a fully-enforceable first-priority perfected security interest,
Appears in 1 contract
Sources: Vendor Credit Financing Agreement (Hughes Electronics Corp)
Conditions to Each Advance. As conditions precedent The obligations of Lenders to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole discretion of Agent and each Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All Borrower shall have previously complied with all conditions precedent to set forth in Section 4.1 as of the first Advance Closing Date or stated elsewhere herein such conditions shall have been satisfied.previously waived;
(b) There at least two (2) Business Days prior to the proposed Borrowing Date, Borrower shall then exist have delivered to Agent a Request for Advance (which Request for Advance shall include representations and warranties by Borrower as to (i) the Fair Value of each Underlying Loan to be pledged in connection with such Advance, (ii) the Enterprise Value of the Underlying Borrower in relation to each such Underlying Loan and (iii) whether each such Underlying Loan is an Eligible Covenant-Lite Loan, Eligible Junior Secured Loan, Eligible Junior Secured Subordinated Loan, Eligible Secured Subordinated Loan, Eligible Senior Secured Last-Out Loan or Eligible Senior Secured Loan, Eligible Allowed Affiliated Interest Loan, Eligible Allowed Controlling Interest Loan, Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in the United States or Canada), or Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in a Permitted Foreign Jurisdiction), as applicable) and Borrowing Certificate, accompanied by all necessary supporting documentation and executed by a Responsible Officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions contained in this Section 4.2, have been satisfied;
(c) each of the representations and warranties made by Borrower in or pursuant to the Loan Documents (including the Administration Agreement) shall be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), Borrower shall be in full compliance with all covenants, agreements and obligations under each Loan Document, and no Default or Event of Default.
(c) The representations and warranties made in this Agreement Default shall have occurred or be true and correct continuing or would exist after giving effect to the requested Advance on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Borrowing Date;
(d) The Title Policy immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.not exceed Availability;
(e) there shall be no liabilities or obligations with respect to Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind nature whatsoever which, either individually or in the aggregate, could reasonably be likely to have or result in a Material Adverse Effect;
(f) there shall not have occurred any Material Adverse Effect;
(g) Agent shall have received all fees, charges and expenses payable to Agent and Lenders on or prior to such date pursuant to the Loan Documents;
(h) Agent shall be satisfied that upon funding such Advance, Agent will have a valid and enforceable first-priority security interest in the Underlying Loan to be pledged in connection with such Advance;
(i) all other documents and legal matters in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements transactions contemplated by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, this Agreement shall have been furnished delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Lender Agent;
(j) (provided, that no Default or Event of Default hereunder has occurred and is continuing) each Advance shall be made within ten two (102) days Business Days or such other time as agreed by Borrower and Custodian following the last to occur of laying of each foundation Agent’s receipt of the Improvements showing no encroachment of the Improvements on any boundary lineRequest for Advance and Borrowing Certificate and all items required to be submitted to Agent hereunder, easement, building setback line or other restricted area.including but not limited to those items referenced in this Section 4.2; and
(hk) The sum of no other Advance shall have been disbursed to Borrower within seven (7) calendar days prior to the Principal Debt plus the amount date of the requested Advance shall not be in excess of the amount then available under Section 2.01Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Conditions to Each Advance. As conditions precedent The obligations of Lender to each make any Advance (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole judgment of Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All Borrower shall have delivered to Lender a Borrowing Certificate for the Advance executed by an authorized officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date of such Advance that the conditions precedent to the first Advance or stated elsewhere herein shall contained in this Section 4.2 have been satisfied.; provided, however, that any determination as to whether to fund Advances or extensions of credit shall be made by Lender in its sole discretion;
(b) There each of the representations and warranties made by Borrower in or pursuant to this Agreement shall then exist be accurate, before and after giving effect to such Advance, and no Default or Event of Default.Default shall have occurred or be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(c) The representations and warranties made in this Agreement shall be true and correct on and as of immediately after giving effect to the date of each requested Advance, and the request for an Advance aggregate outstanding principal amount of Advances under the Revolving Facility shall constitute not exceed either the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Availability or the Facility Cap;
(d) The Title Policy except as disclosed in the historical financial statements, there shall be endorsed and extendedno liabilities or obligations with respect to Borrower of any nature whatsoever which, if required by Lendereither individually or in the aggregate, would reasonably be likely to cover each Advance with no additional title exceptions objectionable to Lender.have a Material Adverse Effect;
(e) Borrower Lender shall procure have received all fees, charges and deliver expenses payable to Lender, if required by Lender, releases Lender on or waivers of mechanic’s liens and receipted bills showing payment of all amounts due prior to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect such date pursuant to the Property.Loan Documents; and
(f) An inspection of all in form and acceptable report on the Improvements by Inspecting Personsubstance satisfactory to Lender in its sole discretion, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, Lender shall have been furnished received such consents, approvals and agreements, including, without limitation, any applicable Warehouse Waivers and Consents with respect to any and all leases, warehouses and other locations set forth on Schedule 5.4, from such third parties as Lender within ten and its counsel shall determine are necessary or desirable with respect to (10i) days of laying of each foundation of the Improvements showing no encroachment of Loan Documents and/or the Improvements on transactions contemplated thereby, and/or (ii) claims against any boundary line, easement, building setback line Borrower or other restricted areaGuarantor or the Collateral.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Derma Sciences, Inc.)
Conditions to Each Advance. As conditions precedent Each Advance shall be subject to each Advance, including the first Advance, in addition to all other requirements herein, Borrower must satisfy the following requirements and, if required conditions having been fulfilled unless waived in writing by the Lender, deliver to Lender evidence of such satisfaction:
(a) All conditions precedent to If an Advance is made on a date after the first Advance or stated elsewhere herein Closing Date, the Borrower shall have been satisfied.executed an Officer's Certificate representing and warranting that each of the representations and warranties set out herein is true and correct as of such date;
(b) There there shall then exist no Default or not have occurred any Event of Default.Default hereunder;
(c) The representations Borrower shall deliver a Certificate, stating that (A) there have been no occurrences which have or would adversely and warranties made in this Agreement shall be true and correct on and as materially affect the condition of the date Vessel, its hull or any of its component parts; (B) the amount of the requested Advance is in accordance with the actual costs to the Borrower of materials, supplies and labor for the refurbishment of the Vessel; and (C) once the suppliers and subcontractors identified to the Lender by the Borrower in writing are paid there will be no liens or encumbrances on the Vessel, its hull or component parts for which the withdrawal is being requested except for those already approved by the Lender. The Borrower shall also attach the invoices and receipts supporting each Advance, and proposed Advance to the request for an Advance shall constitute satisfaction of the representation and warranty by Borrower that such representations and warranties are true and correct at such timeLender.
(d) The Title Policy Lender shall be endorsed have received an inspection report and extended, if required appraisal of the Vessel prepared by the Surveyor in form and substance satisfactory to the Lender, dated no earlier than fifteen (15) days prior to cover each the requested Advance, estimating an Orderly Liquidation Value of the Vessel not less than the sum of the Initial Advance with no additional title exceptions objectionable to Lenderplus the requested Advance; provided that the Lender may advance an amount in excess of such Orderly Liquidation Value in its sole discretion at the request of the Borrower.
(e) The Borrower shall procure have reimbursed the Lender for the fees, costs and deliver to Lender, if expenses of the Lender as required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the PropertySection 5.7 hereof.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Conditions to Each Advance. As conditions precedent Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, Lender shall not be obligated to each make any Advances (including the initial Advance) unless at the time of the Advance, including all of the first Advancefollowing conditions shall, in addition to all other requirements hereinLender's sole determinations, Borrower must satisfy the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionbe satisfied:
(aA) All conditions precedent For each Eligible Contract, Borrower shall have included the Eligible Contract on a List of Contracts delivered to Lender and shall have delivered to Lender the Contract Delivery Documents; except that, if a Certificate of Title has not been issued and Borrower has provided Lender with proof acceptable to Lender that a Certificate of Title has been applied for, or in the case of Bulk Purchase Contract will be applied for, then the Certificate of Title must be, at the Lender's option, either delivered to the first Advance Lender or stated elsewhere herein in the Borrower's possession within one hundred and twenty (120) days of the title application date and if a Bulk Purchase Contract, one hundred and eighty (180) days from the date of purchase by Borrower. Certificates of Title relating to Eligible Contracts serviced by Third Party Servicers need not reflect the security interest of Borrower. However, With respect to Eligible Contracts serviced by Third Party Servicers, the Borrower shall have been satisfiedappointed as Third Party Servicer's attorney-in-fact and shall be permitted, under the applicable agreement with the dealer, to take all actions necessary to reflect Borrower's first priority security interest.
(bB) There shall then exist no Default or Event All of Default.
(c) The the representations and warranties made of Borrower in this Agreement all of the Loan Documents shall be true and correct on and as of the date of each Advancesuch Advance as though they were made on and as of such date and Borrower shall have performed all of its obligations contained in the Loan Documents required to be performed as of such date; (C) No event shall have occurred and be continuing which would constitute an Event of Default or Pre-Default Event, nor would the making of the Advance constitute an Event of Default or Pre-Default Event; (D) There shall have been no material adverse change in the financial condition of Borrower or any of the Guarantors, after the Closing Date; (E) No claim has been asserted or proceeding commenced challenging this Agreement or Lender's rights under this Agreement, and the request for an Advance shall constitute the no claim has been asserted which if true would be a breach of a representation and warranty in the Loan Documents; (F) No Event of Default shall have occurred, and no Pre-Default Event shall have occurred and still be in existence; (G) Lender has a first priority perfected security interest in the Collateral except to the extent otherwise allowed by Borrower that such representations and warranties are true and correct at such time.
this Agreement or Lender in writing; (dH) The Title Policy shall be endorsed and extended, if required by An event has not occurred which entitles Lender pursuant to Section 5.1(E) to take over administration of the Contracts; (I) Lender, to cover each Advance with no additional title exceptions objectionable 's most recent inspection of the Collateral or Borrower's records or operations has been satisfactory to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Motor Vehicle Installment Contract Loan and Security Agreement (TFC Enterprises Inc)
Conditions to Each Advance. As conditions precedent The obligations of Lenders to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole discretion of Agent and each Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All Borrower shall have previously complied with all conditions precedent to set forth in Section 4.1 as of the first Advance Closing Date or stated elsewhere herein such conditions shall have been satisfied.previously waived;
(b) There at least one (1) Business Day prior to the proposed Borrowing Date, Borrower shall then exist have delivered to Agent (i) a Request for Advance (which Request for Advance shall include, to the extent delivered in connection with any request for an Advance that is not a Restricted Advance, representations and warranties by Borrower as to (x) the Fair Value of each Underlying Loan to be pledged in connection with such Advance, (y) the Enterprise Value of the Underlying Borrower in relation to each such Underlying Loan and (z) whether each such Underlying Loan is an Eligible Covenant-Lite Loan, Eligible Junior Secured Loan, Eligible Junior Secured Subordinated Loan, Eligible Secured Subordinated Loan, Eligible Senior Secured Last-Out Loan or Eligible Senior Secured Loan, Eligible Allowed Affiliated Interest Loan, Eligible Allowed Controlling Interest Loan, Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in the United States or Canada), or Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in a Permitted Foreign Jurisdiction), as applicable) and (ii) solely to the extent the requested Advance is an Advance that is not a Restricted Advance, a Borrowing Certificate, accompanied by all necessary supporting documentation and executed by a Responsible Officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions contained in this Section 4.2, have been satisfied;
(c) each of the representations and warranties made by Borrower in or pursuant to the Loan Documents (including the Administration Agreement) shall be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), Borrower shall be in full compliance with all covenants, agreements and obligations under each Loan Document, and no Default or Event of Default.
(c) The representations and warranties made in this Agreement Default shall have occurred or be true and correct continuing or would exist after giving effect to the requested Advance on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Borrowing Date;
(d) The Title Policy immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.not exceed Availability;
(e) there shall be no liabilities or obligations with respect to Borrower of any nature whatsoever which, either individually or in the aggregate, could reasonably be likely to have or result in a Material Adverse Effect;
(f) there shall not have occurred any Material Adverse Effect;
(g) Agent shall have received all fees, charges and expenses payable to Agent and Lenders on or prior to such date pursuant to the Loan Documents;
(h) solely to the extent the requested Advance is an Advance that is not a Restricted Advance, Agent shall be satisfied that upon funding such Advance, Agent will have a valid and enforceable first-priority security interest in the Underlying Loan to be pledged in connection with such Advance;
(i) solely with respect to the first Restricted Advance made on or after the Ninth Amendment Effective Date, (i) Borrower shall procure have established or caused to be established the Restricted Advance Account at Pacific Western and deliver to Lender, if required (ii) Agent shall have received from Borrower the Restricted Advance Account Agreement duly executed by Lender, releases or waivers a Responsible Officer of mechanic’s liens Borrower and receipted bills showing payment of by each other Person party thereto;
(i) all amounts due to all parties who have furnished materials or services or performed labor of any kind other documents and legal matters in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements transactions contemplated by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, this Agreement shall have been furnished delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.Agent; and
(hk) The sum (j) no Default or Event of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01Default hereunder has occurred and is continuing.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Conditions to Each Advance. As conditions precedent The obligations of Lenders to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole discretion of Agent and each Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All Borrower shall have previously complied with all conditions precedent to set forth in Section 4.1 as of the first Advance Closing Date or stated elsewhere herein such conditions shall have been satisfied.previously waived;
(b) There at least twoone (21) Business DaysDay prior to the proposed Borrowing Date, Borrower shall then exist have delivered to Agent (i) a Request for Advance (which Request for Advance shall include, to the extent delivered in connection with any request for an Advance that is not a Restricted Advance, representations and warranties by Borrower as to (ix) the Fair Value of each Underlying Loan to be pledged in connection with such Advance, (iiy) the Enterprise Value of the Underlying Borrower in relation to each such Underlying Loan and (iiiz) whether each such Underlying Loan is an Eligible Covenant-Lite Loan, Eligible Junior Secured Loan, Eligible Junior Secured Subordinated Loan, Eligible Secured Subordinated Loan, Eligible Senior Secured Last-Out Loan or Eligible Senior Secured Loan, Eligible Allowed Affiliated Interest Loan, Eligible Allowed Controlling Interest Loan, Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in the United States or Canada), or Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in a Permitted Foreign Jurisdiction), as applicable) and (ii) solely to the extent the requested Advance is an Advance that is not a Restricted Advance, a Borrowing Certificate, accompanied by all necessary supporting documentation and executed by a Responsible Officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions contained in this Section 4.2, have been satisfied;
(c) each of the representations and warranties made by Borrower in or pursuant to the Loan Documents (including the Administration Agreement) shall be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), Borrower shall be in full compliance with all covenants, agreements and obligations under each Loan Document, and no Default or Event of Default.
(c) The representations and warranties made in this Agreement Default shall have occurred or be true and correct continuing or would exist after giving effect to the requested Advance on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Borrowing Date;
(d) The Title Policy immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.not exceed Availability;
(e) there shall be no liabilities or obligations with respect to Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind nature whatsoever which, either individually or in the aggregate, could reasonably be likely to have or result in a Material Adverse Effect;
(f) there shall not have occurred any Material Adverse Effect;
(g) Agent shall have received all fees, charges and expenses payable to Agent and Lenders on or prior to such date pursuant to the Loan Documents;
(h) solely to the extent the requested Advance is an Advance that is not a Restricted Advance, Agent shall be satisfied that upon funding such Advance, Agent will have a valid and enforceable first-priority security interest in the Underlying Loan to be pledged in connection with such Advance;
(i) all other documents and legal matters in connection with the construction transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent; and
(j) (provided, that no Default or Event of any Default hereunder has occurred and is continuing) each Advance shall be made within two (2) Business Days or such other time as agreed by Borrower and Custodian following the last to occur of Agent’s receipt of the Improvements or otherwise with respect Request for Advance and Borrowing Certificate and all items required to the Propertybe submitted to Agent hereunder, including but not limited to those items referenced in this Section 4.2; and.
(fk) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, no other Advance shall have been furnished disbursed to Lender Borrower within ten seven (107) calendar days of laying of each foundation of prior to the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount date of the requested Advance shall not be in excess of the amount then available under Section 2.01Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Conditions to Each Advance. As conditions precedent (a) The obligation of the Lender to each make any Advance requested to be made or issued on any date (including, without limitation, the Initial Advance), including is subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole reasonable judgment of the Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(ai) All conditions precedent to the first Advance or stated elsewhere herein Lender shall have been satisfied.received a Borrowing Notice;
(bii) There each of the representations and warranties made by Borrower in or pursuant to this Agreement and the other Loan Documents shall then exist be true and correct in all material respects on and as of such date as if made on and as of such date;
(iii) Borrower shall not be in violation of any covenant hereunder;
(iv) no Default or Event of DefaultDefault shall have occurred and be continuing on such date, or would exist after giving effect to the Advance requested to be on such date;
(v) no Default or Event of Default under the Senior Loan Documents shall have occurred and be continuing on such date and there shall be no Payment Blockage Period, Suspension Period or Suspension Notice in effect.
(cvi) immediately after giving effect to such Advance, the aggregate outstanding principal amount of Advances shall not exceed the Facility Cap;
(vii) there shall have occurred (i) no Material Adverse Effect in the operations, financial condition or business prospects of Borrower since September 30, 2000, (ii) no material adverse deviation from the financial projections of Borrower previously furnished to the Lender, (iii) no failure to maintain the Membership Retention Percentage at a level in excess of ninety percent (90%), or (iv) no event(s) which make it improbable that the Borrower will be able to observe or perform in all material respects any of the Obligations;
(viii) except as fully disclosed in the financial statements, projections or other reports previously delivered by the Borrower to the Lender, or as otherwise permitted hereunder, there shall be no liabilities or obligations (including, without limitation, pension liabilities, litigation, and post-retirement health care benefits) with respect to Borrower of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, would be material to the Borrower or its operations; and
(b) The representations delivery by Borrower of a Borrowing Notice shall constitute a representation and warranties made in this Agreement shall be true and correct on and warranty by Borrower as of the date of each Advance, and such Advance that the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind conditions contained in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall this Section 4.2 have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted areasatisfied.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Subordinated Credit Agreement (Town Sports International Inc)
Conditions to Each Advance. As conditions precedent Lender shall not be obligated to disburse all or any portion of the first Advance and each subsequent Advance, including the first Advance, in addition to unless and until Borrower has fully satisfied each and all other requirements herein, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions:
(a) All conditions precedent to The outstanding principal balance owed on the first Advance or stated elsewhere herein shall have been satisfied.Loan as evidenced by the Note does not at any time exceed the Maximum Credit Limit;
(b) There ▇▇▇▇▇▇▇▇ shall then exist no Default or Event have executed and delivered to Lender an original counterpart of Default.this Agreement;
(c) The representations Borrower shall have executed and warranties made in this Agreement shall be true and correct on and as of the date of each Advance, and the request for delivered to Lender an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.original Note;
(d) The Title Policy If repayment of the Loan is secured by a security interest in personal property collateral, then Borrower shall be endorsed have executed and extended, if required by Lender, delivered to cover each Advance with no additional title exceptions objectionable to Lender.Lender an original Security Agreement(s);
(e) If repayment of the Loan is secured by a security interest in personal property collateral, then Lender shall have received a certificate of (or, if no such certificate is available, the best evidence normally provided by) the Secretary of State of each state where a financing statement has been or is to be filed pursuant to this section showing all outstanding UCC filings against Borrower, together with copies of all filings referred to in any such certificate. If Lender so requests, Borrower shall procure have obtained and deliver delivered to LenderLender any subordination agreements, if required by Lendertermination statements and/or releases of interest from each secured party identified in any such filing who, releases in ▇▇▇▇▇▇’s opinion, may have a security interest in any Collateral which does or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection potentially could conflict with the construction of any of the Improvements or otherwise with respect security interest granted to the Property.Lender hereunder;
(f) An inspection A duly executed corporate resolution to borrow authorizing the loan transactions contemplated hereby and the grant of the security interest provided for herein, and acceptable report authorizing specific officers to act on behalf of the Improvements by Inspecting Person, at Borrower’s sole cost and expense.corporation in connection with this Agreement;
(g) A foundation surveycertificate of good standing showing that Borrower is in good standing under the laws of the state of its incorporation and certificates indicating that Borrower is qualified to transact business and is in good standing in any other state in which the conduct of its business or its ownership of property requires that it be so qualified, if and a copy of Borrower’s articles or certificates of incorporation and its bylaws;
(h) Borrower shall have delivered to Lender any guaranties of the Obligations required by ▇▇▇▇▇▇, duly executed by the Guarantors and in a form that is acceptable to Lender in its sole discretion;
(i) If repayment of the Loan is secured by a security interest in Collateral, then Borrower shall have provided Lender with evidence satisfactory to Lender that Borrower has obtained insurance policies or binders, with such insurers and in such amounts as may be acceptable to Lender, covering the property comprising the Collateral and naming Lender as a loss payee on a lender’s loss payable endorsement or co-insured on all applicable general liability and casualty policies;
(j) Borrower shall maintain a deposit account relationship with ▇▇▇▇▇▇ held in a deposit account(s) maintained at lender;
(k) Lender shall have received any and all additional documents, instruments and certificates required pursuant to this Agreement, or otherwise deemed necessary and requested by Lender; and
(l) If required by Lender, Borrower shall have been furnished paid or reimbursed Lender for all attorneys’ fees, filing fees, recording fees, insurance premiums and other costs associated with the preparation of the final Loan Documents, closing of the Loan and perfecting any liens granted to Lender within ten (10) days of laying of each foundation of to secure the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted areaLoan.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Business Loan Agreement
Conditions to Each Advance. As conditions precedent The obligations of Lenders to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole discretion of Agent and each Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All Borrower shall have previously complied with all conditions precedent to set forth in Section 4.1 as of the first Advance Closing Date or stated elsewhere herein such conditions shall have been satisfied.previously waived;
(b) There at least two (2) Business Days prior to the proposed Borrowing Date, Borrower shall then exist have delivered to Agent a Request for Advance (which Request for Advance shall include representations and warranties by Borrower as to (i) the Fair Value of each Underlying Loan to be pledged in connection with such Advance, (ii) the Enterprise Value of the Underlying Borrower in relation to each such Underlying Loan and (iii) whether each such Underlying Loan is an Eligible Covenant-Lite Loan, Eligible Junior Secured Loan, Eligible Junior Secured Subordinated Loan, Eligible Secured Subordinated Loan, Eligible Senior Secured Last-Out Loan or Eligible Senior Secured Loan, as applicable) and Borrowing Certificate, accompanied by all necessary supporting documentation and executed by a Responsible Officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions contained in this Section 4.2, have been satisfied;
(c) each of the representations and warranties made by Borrower in or pursuant to the Loan Documents (including the Administration Agreement) shall be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), Borrower shall be in full compliance with all covenants, agreements and obligations under each Loan Document, and no Default or Event of Default.
(c) The representations and warranties made in this Agreement Default shall have occurred or be true and correct continuing or would exist after giving effect to the requested Advance on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Borrowing Date;
(d) The Title Policy immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.not exceed Availability;
(e) there shall be no liabilities or obligations with respect to Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind nature whatsoever which, either individually or in the aggregate, could reasonably be likely to have or result in a Material Adverse Effect;
(f) there shall not have occurred any Material Adverse Effect;
(g) Agent shall have received all fees, charges and expenses payable to Agent and Lenders on or prior to such date pursuant to the Loan Documents;
(h) Agent shall be satisfied that upon funding such Advance, Agent will have a valid and enforceable first-priority security interest in the Underlying Loan to be pledged in connection with such Advance;
(i) all other documents and legal matters in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements transactions contemplated by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, this Agreement shall have been furnished delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Lender Agent;
(j) provided that no Default or Event of Default hereunder has occurred and is continuing, each Advance shall be made within ten two (102) days Business Days or such other time as agreed by Borrower and Custodian following the last to occur of laying of each foundation Agent’s receipt of the Improvements showing no encroachment of the Improvements on any boundary lineRequest for Advance and Borrowing Certificate and all items required to be submitted to Agent hereunder, easement, building setback line or other restricted area.including but not limited to those items referenced in this Section 4.2; and
(hk) The sum of no other Advance shall have been disbursed to Borrower within seven (7) calendar days prior to the Principal Debt plus the amount date of the requested Advance shall not be in excess of the amount then available under Section 2.01Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Conditions to Each Advance. As conditions precedent Each Lender’s obligation to each Advance, including the first Advance, in addition contribute to all other requirements herein, Borrower must satisfy any Advance is subject to the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All conditions precedent that the payment of any Project Cost (including Reimbursement Payments) being paid from such Advance is due on or before or within thirty (30) days after the relevant Drawdown Date (together with confirmation from the Builder that all previous installments of the Contract Price due and payable to it under the first Advance or stated elsewhere herein shall relevant Construction Contract have been satisfied.paid);
(b) There shall then exist that both at the date of each Drawdown Notice and at each Drawdown Date:
(i) no Default or Event of Default.Default has occurred and is continuing or would result from drawdown of the relevant Advances;
(cii) The representations the Repeating Representations and warranties Warranties to be made by each Obligor are true and correct in this Agreement all material respects if repeated on each of those dates (except to the extent such Repeating Representations and Warranties reference an earlier date, in which case such Repeating Representations and Warranties shall be true and correct on and in all material respects as of such earlier date) with reference to the date circumstances then existing, before and after giving effect to such borrowing or issuance and to the application of each Advancethe proceeds therefrom or, and in the request for an Advance shall constitute case of the representation and warranty by Borrower that such representations and warranties are in Section 11.9 (No withholding Taxes), would be true and correct at such time.in all material respects if the replacement Schedule 9 (Exceptions to Representations) attached to the Drawdown Notice is substituted for the Schedule 9 attached this Agreement; and
(c) that all Advances and other financing to be made pursuant to this Agreement shall be in full compliance with all applicable requirements;
(d) The Title Policy that since December 31, 2011, there shall not have occurred and be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.continuing any Material Adverse Effect; and
(e) Borrower shall procure and deliver that at each Drawdown Date all fees payable pursuant to Lender, if required by Lender, releases this Agreement on that Drawdown Date have been paid (or waivers will be out of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any proceeds of the Improvements or otherwise with respect relevant Advances) to the Propertyextent invoiced five (5) Business Days prior to such Drawdown Date.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Senior Secured Credit Facility Agreement (Pacific Drilling S.A.)
Conditions to Each Advance. As conditions precedent The obligations of Lender to each make any Advance (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole judgment of Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All Borrower shall have delivered to Lender a Borrowing Certificate for the Advance executed by an authorized officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date of such Advance that the conditions precedent to the first Advance or stated elsewhere herein shall contained in this Section 4.3 have been satisfied.; provided, however, that any determination as to whether to fund Advances or extensions of credit shall be made by Lender in its sole discretion;
(b) There each of the representations and warranties made by Borrower in or pursuant to this Agreement shall then exist be accurate in all material respects, before and after giving effect to such Advance, and no Default or Event of Default.Default shall have occurred or be continuing or would exist after giving effect to the Advance under the Revolving Facility on such date;
(c) The representations and warranties made in this Agreement shall be true and correct on and as of immediately after giving effect to the date of each requested Advance, and the request for an Advance aggregate outstanding principal amount of Advances under the Revolving Facility shall constitute not exceed either the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Availability or the Facility Cap;
(d) The Title Policy except as disclosed in the historical financial statements, there shall be endorsed and extendedno liabilities or obligations with respect to Borrower of any nature whatsoever which, if required by Lendereither individually or in the aggregate, would reasonably be likely to cover each Advance with no additional title exceptions objectionable to Lender.have a Material Adverse Effect;
(e) Borrower Lender shall procure have received all fees, charges and deliver expenses payable to Lender, if required by Lender, releases Lender on or waivers of mechanic’s liens and receipted bills showing payment of all amounts due prior to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect such date pursuant to the Property.Loan Documents;
(f) An inspection all in form and substance satisfactory to Lender in its sole discretion, Lender shall have received such consents, approvals and agreements, including, without limitation, any applicable Landlord Waivers and Consents and Warehouse Waivers and Consents with respect to any and all leases, warehouses and other locations set forth on Schedule 5.4 of the Disclosure Schedule, from such third parties as Lender and acceptable report on its counsel shall reasonably determine are necessary or desirable with respect to (i) the Improvements by Inspecting PersonLoan Documents and/or the transactions contemplated thereby, at Borrower’s sole cost and expense.and/or (ii) claims against any Borrower or Guarantor or the Collateral; and
(g) A foundation surveyif the instruction to the Lockbox Bank to have all funds in the Lockbox Account transferred to Lender’s Concentration Account is not in effect, if Borrower shall have instructed the Lockbox Bank to have all funds transferred from the Lockbox Account to the Lender’s Concentration Account and Lender shall have received confirmation from the Lockbox Bank that it has implemented such instruction as required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted areaSection 2.5.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Rita Medical Systems Inc)
Conditions to Each Advance. As conditions precedent The obligation of each Facility Lender to each Advance, including make available any Advance of Facility Debt is subject to the first Advance, in addition to all other requirements herein, Borrower must satisfy the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionsatisfaction of:
(a) All each of the conditions precedent set forth in Schedule 5.4 (Conditions to Each Advance) (other than items (a) and (b) in Schedule 5.4 (Conditions to Each Advance) in the case of the True-up Advance), in each case to the first Advance or stated elsewhere herein shall have been satisfied.satisfaction of:
(i) in the case of the True-up Advance, each of the Facility Lenders, unless, in each case, waived by each of the Facility Lenders; and
(ii) in the case of the Second Advance:
(A) with respect to the condition precedent in item (e) in Schedule 5.4 (Conditions to Each Advance), each of the Facility Lenders unless waived by each of the Facility Lenders;
(B) with respect to the condition precedent in item (d) in Schedule 5.4 (Conditions to Each Advance) with respect to the bringdown of the representation and warranty in Section 4.24 (Material Adverse Effect), the Supermajority Aggregate Secured Credit Facilities Debt Participants unless waived by the Supermajority Aggregate Secured Credit Facilities Debt Participants;
(C) with respect to the condition precedent in item (d) in Schedule 5.4 (Conditions to Each Advance) with respect to the bringdown of the representation and warranty in Section 4.6 (Government Approvals; Government Rules), the Special Supermajority Aggregate Secured Credit Facilities Debt Participants unless waived by the Special Supermajority Aggregate Secured Credit Facilities Debt Participants; and
(D) with respect to each other condition precedent set forth in Schedule 5.4 (Conditions to Each Advance), the Majority Aggregate Secured Credit Facilities Debt Participants, unless, in each case, waived by the Majority Aggregate Secured Credit Facilities Debt Participants; and
(iii) in the case of all Advances made after the Second Advance, the Majority Aggregate Secured Credit Facilities Debt Participants, unless waived by the Majority Aggregate Secured Credit Facilities Debt Participants; and
(b) There shall then exist no Default or Event of Default.
(c) The representations and warranties made in this Agreement shall be true and correct on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Personrelevant Facility Agreement, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall any additional conditions to each Advance set forth in such Facility Agreement have been furnished satisfied or waived pursuant to Lender within ten (10) days the terms of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted areasuch Facility Agreement.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.
Appears in 1 contract
Sources: Common Terms Agreement (Cheniere Energy Partners, L.P.)
Conditions to Each Advance. As conditions precedent Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, Lender shall not be obligated to each make any Advances (including the initial Advance) unless at the time of the Advance, including all of the first Advancefollowing conditions shall, in addition to all other requirements hereinLender's sole determination, Borrower must satisfy the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionbe satisfied:
(aA) All conditions precedent For each Eligible Contract, Borrower shall have included the Eligible Contract on a List of Contracts delivered to Lender and shall have delivered to Lender the first Advance Contract Delivery Documents; except that, if a Certificate of Title has not been issued and Borrower has provided Lender with proof acceptable to Lender that a Certificate of Title has been applied for, or stated elsewhere herein in the case of Bulk Purchase Contract will be applied for, then the Certificate of Title must be delivered to Lender within one hundred and twenty (120) days of the title application date and if a Bulk Purchase Contract, one hundred and eighty (180) days from the date of purchase by Borrower. Certificates of Title relating to Eligible Contracts serviced by Third Party Servicers need not reflect the security interest of Borrower. However, with respect to Eligible Contracts serviced by Third Party Servicers, the Borrower shall have been satisfiedappointed as Third Party Servicer's attorney-in-fact and shall be permitted, under the applicable agreement with the dealer, to take all actions necessary to reflect Borrower's first priority security interest.
(bB) There shall then exist no Default or Event All of Default.
(c) The the representations and warranties made of Borrower in this Agreement all of the Loan Documents shall be true and correct on and as of the date of each Advance, such Advance as though they were made on and the request for an Advance shall constitute the representation as of such date and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver have performed all of its obligations contained in the Loan Documents required to Lender, if required by Lender, releases or waivers be performed as of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.such date;
Appears in 1 contract
Sources: Motor Vehicle Installment Contract Loan and Security Agreement (TFC Enterprises Inc)
Conditions to Each Advance. As conditions precedent Notwithstanding any other -------------------------- provision of this Agreement and without affecting in any manner the rights of Lender hereunder, Lender shall not be obligated to each make any Advances (including the initial Advance) unless at the time of the Advance, including all of the first Advancefollowing conditions shall, in addition to all other requirements hereinLender's sole determinations, Borrower must satisfy the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionbe satisfied:
(aA) All conditions precedent For each Eligible Contract, Borrower shall have included the Eligible Contract on a List of Contracts delivered to Lender and shall have delivered to Lender the Contract Delivery Documents; except that, if a Certificate of Title has not been issued and Borrower has provided Lender with proof acceptable to Lender that a Certificate of Title has been applied for, or in the case of Bulk Purchase Contract will be applied for, then the Certificate of Title must be, at the Lender's option, either delivered to the first Advance Lender or stated elsewhere herein in the Borrower's possession within one hundred and twenty (120) days of the title application date and if a Bulk Purchase Contract, one hundred and eighty (180) days from the date of purchase by Borrower. Certificates of Title relating to Eligible Contracts serviced by Third Party Servicers need not reflect the security interest of Borrower. However, with respect to Eligible Contracts serviced by Third Party Servicers, the Borrower shall have been satisfiedappointed as Third Party Servicer's attorney-in-fact and shall be permitted, under the applicable agreement with the dealer, to take all actions necessary to reflect Borrower's first priority security interest.
(bB) There shall then exist no Default or Event All of Default.
(c) The the representations and warranties made of Borrower in this Agreement all of the Loan Documents shall be true and correct on and as of the date of each Advance, such Advance as though they were made on and the request for an Advance shall constitute the representation as of such date and warranty by Borrower that such representations and warranties are true and correct at such time.
(d) The Title Policy shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.
(e) Borrower shall procure and deliver have performed all of its obligations contained in the Loan Documents required to Lender, if required by Lender, releases or waivers be performed as of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, shall have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on any boundary line, easement, building setback line or other restricted area.
(h) The sum of the Principal Debt plus the amount of the requested Advance shall not be in excess of the amount then available under Section 2.01.such date;
Appears in 1 contract
Sources: Motor Vehicle Installment Contract Loan and Security Agreement (TFC Enterprises Inc)
Conditions to Each Advance. As conditions precedent The obligations of Lender to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole judgment of Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionadditional conditions precedent:
(a) All Borrower shall have delivered to Lender, a Borrowing Certificate for the Advance with necessary supporting documentation and executed by an authorized officer of Borrower on behalf of the Borrower (and not in his or her individual capacity), which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions precedent to the first Advance or stated elsewhere herein shall contained in this Section 4.2, have been satisfied.; provided, however, that any determination as to whether the conditions to the funding of Advances or extensions of credit have been satisfied shall be made by Lender in its sole discretion;
(b) There each of the representations and warranties made by the Credit Parties in or pursuant to the Loan Documents shall then exist be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), and no Default or Event of Default.Default shall have occurred or be continuing or would exist after giving effect to the requested Advance on such date; provided, that Borrower may update the Schedules upon the occurrence of a factual change which is not adverse to Lender, as determined by Lender in its Permitted Discretion;
(c) The representations and warranties made in this Agreement immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be true and correct on and as not exceed the lesser of the date of each Advance, (i) Facility Cap minus the Interest Reserve and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.(ii) Availability;
(d) The Title Policy Lender shall be endorsed have received all fees, charges and extended, if required by Lender, expenses payable to cover each Advance with no additional title exceptions objectionable Lender on or prior to Lender.such date pursuant to the Loan Documents;
(e) Borrower shall procure and deliver have delivered to LenderLender the Funding Items, if not less than ten (10) Business Days prior to the date of the requested Advance required by Lender, releases or waivers of mechanic’s liens for approval by Lender, which approval shall be granted by Lender in its sole discretion;
(f) Credit Parties shall obtain and receipted bills showing payment of Borrower shall deliver to Lender from time to time all amounts due required consents, approvals and agreements from such third parties as are necessary Loan and Security Agreement (Ashford) and that are satisfactory to all parties who have furnished materials or services or performed labor of any kind Lender in connection with the construction of any of the Improvements or otherwise its sole discretion with respect to the Property.
(f) An inspection of and acceptable report on the Improvements by Inspecting Person, at Borrower’s sole cost and expense.Mortgage Loan for which such Advance is being made;
(g) A foundation survey, if required by Lender, there shall not have been furnished to Lender within ten (10) days of laying of each foundation of the Improvements showing no encroachment of the Improvements on occurred any boundary line, easement, building setback line or other restricted area.Material Adverse Change;
(h) The sum Loan-to-Cost in respect of each applicable Mortgage Loan proposed to be included in the Borrowing Base shall not exceed eighty-five percent (85%) on the date of such Advance; and
(i) each Mortgage Loan shall meet each of the Principal Debt plus following criteria:
(i) The Mortgage Loans shall be genuine; shall in all respects be what they purport to be; and the Mortgage Loan Documents evidencing the relevant Account Debtor's obligation to pay the Indebtedness under such Mortgage Loan shall have only one original counterpart and no other party other than Lender or the Custodian shall be in actual or constructive possession of any such original Mortgage Loan Documents;
(ii) The Mortgage Loans shall represent undisputed, bona fide transactions completed in accordance with the terms and provisions contained in any documents related thereto;
(iii) Borrower shall be the sole owner and holder of each Mortgage Loan and shall have good title to each Mortgage Loan;
(iv) The amounts of the face value shown on any schedule of any Mortgage Loan provided to Lender shall actually and absolutely be owing to Borrower and shall not be contingent for any reason, except as set forth in the applicable Intercreditor Agreement;
(v) No adverse claims, set-offs, counterclaims, defaults or disputes as to payments or liability thereon exist or have been asserted with respect thereto and Borrower has not made any agreement with any Account Debtor thereunder or any deduction therefrom;
(vi) No facts, events or occurrences exist that, in any way, impair the validity or enforcement thereof or tend to reduce the amount payable thereunder from the amount of the requested Advance Mortgage Loan shown on any schedule, or on all Mortgage Loan Documents delivered to Lender with respect thereto;
(vii) All Account Debtors in connection with Mortgage Loans shall have had the capacity to contract at the time any contract or other document giving rise to the Account was executed and generally shall have the ability to pay their debts as they become due;
(viii) No proceedings or actions shall be threatened or pending against any Account Debtor that might result in any Material Adverse Change in the Account Debtor's financial condition; Loan and Security Agreement (Ashford)
(ix) The Mortgage Loans shall not have been assigned or pledged to any Person other than Lender;
(x) The Mortgage Loan Collateral shall not have been released from the Lien of the Mortgage Loan Documents, nor has the respective Account Debtor been released from its obligations under any Mortgage Loan Document, in whole or in part, except in accordance with the terms of the Mortgage Loan Documents;
(xi) All requirements of applicable federal, state and local laws, and regulations thereunder, including, without limitation, usury laws or similar laws, in respect of all Mortgage Loan Documents have been complied with in all material respects;
(xii) All Mortgage Loan Documents shall represent the legal, valid and binding obligation of the Account Debtor, enforceable in accordance with its terms, subject to bankruptcy, insolvency and other laws (including, but not limited to principles of equity) affecting the rights of creditors;
(xiii) No instrument of release or waiver shall have been executed in connection with any Mortgage Loan Document;
(xiv) Except as disclosed in writing to and consented to by Lender (to the extent that such consent is required hereunder) in accordance with the terms of this Agreement, no Mortgage Loan Document shall have been amended or modified after the date on which such Account is pledged to Lender hereunder;
(xv) No Mortgage Loan Document shall be subject to any right of rescission, set-off, counter-claim or defense, including the defense of usury, and no such right of rescission, set-off, counter-claim or defense shall have been asserted with respect thereto, except as disclosed to Lender in excess writing and as reflected in the calculation of the amount then available of the Mortgage Loans;
(xvi) There shall be no proceeding pending for the total or partial condemnation of any of the Mortgage Loan Collateral, each Hotel shall be operated as a Hotel, in good repair and free and clear of any damage that would adversely affect the value of the Hotel and shall be lawfully used and occupied by the owner thereof and/or by tenants under Leases;
(xvii) The Mortgage Loan Documents relating to each Hotel shall include representations and covenants requiring the owner of the Hotel to comply with all applicable zoning and building laws or regulations and to obtain all permits, licenses and certificates required by law or regulation with respect to the Hotel and with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriter certificates. Borrower shall not have received from the applicable Account Debtor any notification from any Governmental Authority that the Hotel is in material noncompliance with such laws or regulations, is being used, operated or occupied unlawfully or has failed to have or obtain such permits, licenses or certificates, as the case may be; Loan and Security Agreement (Ashford)
(xviii) Each Account Debtor shall be the owner and holder or lessee of the applicable Mortgage Loan Collateral and no Account Debtor shall have granted any Liens on the Mortgage Loan Collateral in favor of any Person other than Borrower except to the extent provided for in the applicable Intercreditor Agreement; and
(xix) For those Hotels in which the Account Debtor holds a leasehold estate (i) the related lease shall be in full force and effect and shall not have been modified or amended in any manner except as may be permitted pursuant to the Mortgage Loan Documents, (ii) there shall be no material defaults under such lease and (iii) neither the Account Debtor nor the landlord under the lease shall have commenced any action or given or received any notice for the purpose of terminating the lease. Lender shall make all Advances under the Loan within five (5) Business Days of the satisfaction of this Section 2.014.2.
Appears in 1 contract
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Conditions to Each Advance. As conditions precedent The obligations of Lenders to each make any Advance under the Loan (including, without limitation, the Initial Advance, including ) are subject to the first Advancesatisfaction, in addition to all other requirements hereinthe sole discretion of Agent and each Lender, Borrower must satisfy of the following requirements and, if required by Lender, deliver to Lender evidence of such satisfactionconditions precedent:
(a) All Borrower shall have previously complied with all conditions precedent to set forth in Section 4.1 as of the first Advance Closing Date or stated elsewhere herein such conditions shall have been satisfied.previously waived;
(b) There at least two (2) Business Days prior to the proposed Borrowing Date, Borrower shall then exist have delivered to Agent a Request for Advance (which Request for Advance shall include representations and warranties by Borrower as to (i) the Fair Value of each Underlying Loan to be pledged in connection with such Advance, (ii) the Enterprise Value of the Underlying Borrower in relation to each such Underlying Loan and (iii) whether each such Underlying Loan is an Eligible Covenant-Lite Loan, Eligible Junior Secured Loan, Eligible Junior Secured Subordinated Loan, Eligible Secured Subordinated Loan, Eligible Senior Secured Last-Out Loan or Eligible Senior Secured Loan, Eligible Allowed Affiliated Interest Loan, Eligible Allowed Controlling Interest Loan, Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in the United States or Canada), or Eligible Agreed Asset Loan (secured by Agreed Asset Collateral located in a Permitted Foreign Jurisdiction), as applicable) and Borrowing Certificate, accompanied by all necessary supporting documentation and executed by a Responsible Officer of Borrower, which shall constitute a representation and warranty by Borrower as of the Borrowing Date that the conditions contained in this Section 4.2, have been satisfied;
(c) each of the representations and warranties made by Borrower in or pursuant to the Loan Documents (including the Administration Agreement) shall be accurate before and after giving effect to the making of such Advance (except for those representations and warranties made as of a specific date), Borrower shall be in full compliance with all covenants, agreements and obligations under each Loan Document, and no Default or Event of Default.
(c) The representations and warranties made in this Agreement Default shall have occurred or be true and correct continuing or would exist after giving effect to the requested Advance on and as of the date of each Advance, and the request for an Advance shall constitute the representation and warranty by Borrower that such representations and warranties are true and correct at such time.Borrowing Date;
(d) The Title Policy immediately after giving effect to the requested Advance, the aggregate outstanding principal amount of Advances under the Loan shall be endorsed and extended, if required by Lender, to cover each Advance with no additional title exceptions objectionable to Lender.not exceed Availability;
(e) there shall be no liabilities or obligations with respect to Borrower shall procure and deliver to Lender, if required by Lender, releases or waivers of mechanic’s liens and receipted bills showing payment of all amounts due to all parties who have furnished materials or services or performed labor of any kind nature whatsoever which, either individually or in the aggregate, could reasonably be likely to have or result in a Material Adverse Effect;
(f) there shall not have occurred any Material Adverse Effect;
(g) Agent shall have received all fees, charges and expenses payable to Agent and Lenders on or prior to such date pursuant to the Loan Documents;
(h) Agent shall be satisfied that upon funding such Advance, Agent will have a valid and enforceable first-priority security interest in the Underlying Loan to be pledged in connection with such Advance;
(i) all other documents and legal matters in connection with the construction of any of the Improvements or otherwise with respect to the Property.
(f) An inspection of and acceptable report on the Improvements transactions contemplated by Inspecting Person, at Borrower’s sole cost and expense.
(g) A foundation survey, if required by Lender, this Agreement shall have been furnished delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Lender Agent;
(j) (provided, that no Default or Event of Default hereunder has occurred and is continuing,) each Advance shall be made within ten two (102) days Business Days or such other time as agreed by Borrower and Custodian following the last to occur of laying of each foundation Agent’s receipt of the Improvements showing no encroachment of the Improvements on any boundary lineRequest for Advance and Borrowing Certificate and all items required to be submitted to Agent hereunder, easement, building setback line or other restricted area.including but not limited to those items referenced in this Section 4.2; and
(hk) The sum of no other Advance shall have been disbursed to Borrower within seven (7) calendar days prior to the Principal Debt plus the amount date of the requested Advance shall not be in excess of the amount then available under Section 2.01Advance.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)