Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) This duly executed Agreement; (ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment; (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto; (iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (v) The duly executed Blocked Account Agreements required by Section 6.15; (vi) The Fee Letter duly executed by the Borrowers; (vii) The duly executed Post-Closing Agreement; (viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent; (ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group; (x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group; (xi) The duly executed Request for Advance for the initial Advance of the Loans; (xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008; (xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party; (xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder; (xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009; (xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing; (xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5; (xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties; (xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices; (xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent; (xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and (xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group. (d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent. (f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital). (g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 3 contracts
Sources: Credit Agreement (Oxford Industries Inc), Credit Agreement (Oxford Industries Inc), Credit Agreement (Oxford Industries Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents;
(ixb) The legal opinion of King & Spalding LLP, counsel duly executed original signatures to the Borrower Parties, addressed to the Lender GroupInitial Warrant;
(xc) The legal opinion the Operating Documents and long-form good standing certificates of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party its Subsidiaries certified to be true, complete and correct by the Secretary of State (or equivalent agency) of the State Borrower’s and such Subsidiaries’ jurisdiction of such Borrower Party’s incorporation organization or formation, (B) a true, complete formation and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does and each Subsidiary is qualified to conduct business, and each as of a date no earlier than thirty (E30) copies of all agreements among days prior to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivd) A Solvency Certificate duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xve) Parent and its Subsidiaries certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixf) Lien search results the Perfection Certificate of Borrower, together with respect to the Borrower Parties from all appropriate jurisdictions and filing officesduly executed original signature thereto;
(xxg) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)a copy of Borrower’s Investors’ Rights Agreement and any amendments thereto;
(xxih) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, insurance policies and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in endorsements required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to endorsements in favor of Bank;
(i) the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory completion of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be Initial Audit with results satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, Bank in its sole and absolute discretion; and
(j) payment of the fees and Bank Expenses then due as specified in Section 2.4 hereof.
Appears in 3 contracts
Sources: Loan and Security Agreement (Sumo Logic, Inc.), Loan and Security Agreement (Sumo Logic, Inc.), Loan and Security Agreement (Sumo Logic, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Alliance to undertake the Revolving Loan Commitments and to make fund the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Alliance in its sole discretion, of each of the following conditions:
(a) The Administrative Agent representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the funding, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date);
(b) No Event of Default or event which with the giving of notice or passage of time would constitute an Event of Default shall have occurred and be continuing as of the date of the funding nor shall either result from the making of the funding;
(c) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the making of such funding shall have been issued and remain in force by any governmental authority against Borrower, Alliance, or any of their Affiliates;
(d) Borrower shall have delivered to Alliance or its Custodian if Alliance so directs Borrower, each Note File;
(e) Alliance shall have received each of the followingLoan Documents, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guarantyGuarantor, as applicable, hereunder, (D) certificates of good standing from and each jurisdiction such document shall be in which such Borrower Party does business, full force and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partyeffect;
(xivf) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence shall have provided evidence satisfactory to the Administrative Agent Alliance that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on its lien in the Collateral shall be a lien of first-priority (subject only to Permitted Liens);
(xxig) Payment A field audit, satisfactory to Alliance in its sole and absolute discretion, shall have been conducted by or on behalf of all fees Alliance of the Collateral and expenses payable of the Borrower’s operations or business, with the cost and expense of such audit to be borne solely by Borrower;
(h) Alliance shall have received a certificate from the manager or members of Borrower, and each entity Guarantor, as required, attesting to the Administrative Agent, the Affiliates resolutions of the Administrative Agent, Borrower’s or such Guarantor’s members and the Lenders in connection with the managers authorizing its execution and delivery of all of the documents evidencing the purchase of the Collateral and of this AgreementAgreement and the other Loan Documents to which Borrower or such Guarantor is a party and authorizing specific officers, including, without limitation, fees and expenses managers or members of counsel Borrower or Guarantor to the Administrative Agentexecute same;
(xxiii) A flow Alliance shall have received copies of funds report duly executed by Borrower’s, and each entity Guarantor’s, formation documents and any operating agreements or member agreements, as amended, modified, or supplemented to the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Closing Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official the manager of Borrower or an Authorized Signatory if so requested.such Guarantor;
(bj) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group Alliance shall have received a certificate of an Authorized Signatory LLC status with respect to Borrower and each entity Guarantor by the Secretary of State of its state of formation, which certificate shall indicate that such entity is in good standing;
(k) Alliance shall have recevied a a Certificate (in form and substance acceptable to Alliance) certifying as to the existence of each trust Guarantor and authority of the Administrative Borrower so statingtrustee(s) of each trust Guarantor to execute and deliver their respective Guarantees, and such other matters as Alliance may require.
(cl) The Lender Group Borrower shall have confirmed to Alliance that each property encumbered by a Note Mortgage and securing a Eligible Note is insured by a policy of casualty insurance meeting the requirements of Section 6.10 hereof;
(m) Alliance shall have received the financial statements described in certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 5.1(k)6.10 hereof, each in the form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as which shall be satisfactory to Alliance in its sole and absolute discretion;
(n) Payment of Alliance’s fees and reimbursable costs and expenses due under this Agreement through the Administrative Agentdate of initial Advance, including without limitation all legal expenses, filing and recording fees, incurred through the date of the closing of this Agreement, shall have been made to Alliance;
(o) Evidence Borrower is licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary shall have been provided to Alliance;
(p) A Customer Identification Information Form and such other forms and verification as Alliance may need to comply with the U.S.A. Patriot Act and other applicable laws and regulations.;
(q) Borrower shall provide a Borrowing Base Certificate computed as of a date not more than thirty (30) days prior to such Advance.
(fr) The Administrative Agent No material adverse change shall have received a Borrowing Base Certificateoccurred relative to Borrower, in form Borrower’s business activities, operations and substance satisfactory to projections, the Lender GroupCollateral, reflecting thator the liens, among other thingssecurity interest, as or rights of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Alliance; and
(gs) The Administrative Agent shall have completed such Such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, documents as Alliance in its sole discretionreasonable discretion may require.
Appears in 2 contracts
Sources: Loan Agreement (Iron Bridge Mortgage Fund LLC), Loan and Security Agreement (Iron Bridge Mortgage Fund LLC)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentLender Group:
(i) This duly executed Agreement;,
(ii) A The Fee Letter duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;by Borrowers,
(iii) The Security Agreement duly executed by the each Borrower PartiesParty, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock , certificates evidencing representing all of the issued certificated Equity Interests of the pledged Subsidiaries, and outstanding shares of capital stock pledged all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, together and transfer powers with stock powers or other appropriate instruments of transfer executed respect thereto duly endorsed in blank;,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;,
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit legal opinions of all Accounts ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and Inventory▇▇▇▇▇▇, P.A. and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel to the Borrower Parties, addressed to the Lender Group;,
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xiviii) The duly executed Request for Advance for the initial Advance of the Loans;,
(xiiix) A duly executed Borrowing Base Certificate Certificate, in form and substance satisfactory to the Administrative Agent, dated as of the Agreement Date and calculated Date,
(x) Duly executed Collateral Access Agreements as of July 5, 2008required by the Administrative Agent;
(xiiixi) A Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by an Authorized Signatory the secretary or assistant secretary of each Borrower Partysuch Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, include the following: (A) a copy of the Certificate of Incorporation or Formation of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws Laws, partnership agreement or operating agreement of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions of such Borrower Party Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party Person does business, and (E) copies of all agreements among the shareholders employment contracts for key management level employees of such Borrower Party Person, and (F) copies of all shareholders or share purchase agreements relating to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;Person,
(xivxiii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower Camping World regarding the solvency and financial condition of Parent and its Subsidiariesthe Borrower Parties, together with a pro forma balance sheet giving effect to after the incurrence of the initial Initial Advance and and, if any, the issuance of the initial Letter of Credit hereunder;hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projectionsProjected consolidated financial statements, including income statement, the balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial related statements of Parent income and cash flow, for Camping World and its Subsidiaries for the eight-2010 fiscal year on a month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAPby month basis, and with respect to for each fiscal year thereafter until the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;Maturity Date on an annual basis,
(xviixvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5;,
(xviiixvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, ) against the assets of the Borrower Parties;, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xixxviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;,
(xxxix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);, including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xxixx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreementthe Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including, without limitation, including fees and expenses of counsel to the Administrative Agent;,
(xxiixxi) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; ,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business business, assets, management, operations operations, financial condition, income or financial condition prospects of the Borrower Parties shall have occurred since February 2December 31, 2008, which change has had or could reasonably be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower Parties so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.;
Appears in 2 contracts
Sources: Credit Agreement (Affinity Guest Services, LLC), Credit Agreement (Affinity Group Holding, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each Receipt by Lender of the followingfully executed Advance Request;
(b) If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(c) If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(d) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note or Fixed Facility Note, as applicable, the Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent:
(i) This duly executed Agreementopinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(iie) A duly executed Revolving Loan Note to If the order of each Initial Advance is a Variable DMBS Advance, receipt by Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed first installment of Variable Facility Fee and the entire Discount payable by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date1.04; and
(xxiiif) All such other documents as the Administrative Agent may reasonably request, certified Receipt by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2Initial Origination Fee pursuant to Section 10.03(a), 2008, which change has had or could be reasonably expected the Initial Due Diligence Deposit pursuant to have a Materially Adverse Effect, Section 10.03(a) and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Initial Due Diligence Fee pursuant to Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital10.04(a).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Master Credit Facility Agreement (Education Realty Trust, Inc.), Master Credit Facility Agreement (Education Realty Trust, Inc.)
Conditions Precedent to Initial Advance. The obligations As conditions precedent to the Initial Advance of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation applicable portion of the Issuing Banks to issue (or arrange for Facility by the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditionsLender:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentBorrower will have:
(i) This duly executed Agreementand delivered or caused to be executed and delivered all of the Security documents referred to in paragraph 8 above and the documents, securities and instruments referred therein and the Lender will have completed all registrations and other filings that may be prudent or necessary to perfect the Lender’s security therein;
(ii) A duly executed Revolving Loan Note received and provided the Lender with written evidence of the approval of the Exchange to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio issuance of the Revolving Loan CommitmentStandby Fee Shares and the Bonus Shares;
(iii) The Security Agreement duly executed by delivered a certified copy of its directors’ resolutions authorizing the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance borrowing of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as Facility, the grant of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guarantySecurity, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this AgreementAgreement and all agreements, includingdocuments and instruments referred to herein, without limitationtogether with an officer’s certificate, fees certifying certain factual matters, in form and expenses terms satisfactory to the Lender;
(iv) delivered a certified copy of a resolution of the directors of the Guarantor authorizing the guarantee of the Facility, the grant of the Security, as applicable, and the execution and deliver of all agreements, documents and instruments applicable thereto, together with an officer’s certificate, certifying certain factual matters, in form and terms satisfactory to the Lender;
(v) caused to be executed and delivered a legal opinion of counsel to the Administrative AgentBorrower and the Guarantor, in form and terms satisfactory to the Lender and its counsel;
(xxiib) A flow the representations and warranties of funds report duly executed the Borrower contained in paragraph 11 will be true and correct in all material respects and the Borrower will have complied with all covenants required to be complied with by it under this Agreement and all other documents delivered hereunder, prior to the Initial Advance of the Facility by the Administrative Lender;
(c) there shall have been no adverse material change in the business, operations, assets or ownership of the Borrower which report shall include a statement since the date of all sources the Term Sheet;
(d) the Lender will have completed and, in its sole and uses absolute discretion, be satisfied with its due diligence review of funds on the Agreement DateBorrower and the Guarantor and their respective properties and assets and will have received the approval of the Lender’s board of directors; and
(xxiiie) All such other documents the Lender will, in its sole and absolute discretion, be satisfied as to the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition creditworthiness of the Borrower Parties shall have occurred since February 2and its Subsidiaries and the adequacy of the collateral security contemplated herein. If any of the foregoing conditions precedent are not satisfied or waived by the Lender in writing on or before April 16, 20082007, which change has had or could be reasonably expected to have a Materially Adverse Effectthis Agreement will terminate, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable will be under no further obligation to the members of Borrower in connection with the Lender Grouptransaction contemplated herein.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Credit Agreement (Transatlantic Petroleum Corp.), Credit Agreement (Transatlantic Petroleum Corp.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder shall be subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each Receipt of the following, each in form and substance satisfactory to the Administrative AgentLender:
(i) This duly Agreement, properly executed Agreement;by the Borrower.
(ii) A duly The Note, properly executed Revolving Loan Note to by the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;Borrower.
(iii) The Security Agreement duly executed Such financial statements of the Borrower as requested by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;Lender.
(iv) Original stock certificates evidencing Current searches of appropriate filing offices showing that (A) no state or federal tax liens have been filed and remain in effect against the issued Borrower, (B) no financing statements or assignments of patents, trademarks or copyrights have been filed and outstanding shares remain in effect against the Borrower except those financing statements and assignments of capital stock pledged patents, trademarks or copyrights relating to Permitted Liens or to liens held by Persons who have agreed in writing that upon receipt of proceeds of the Advances, they will deliver UCC releases and/or terminations and releases of such assignments of patents, trademarks or copyrights satisfactory to the Administrative Agent pursuant Lender, and (C) the Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Agreement, together with stock powers or other appropriate instruments Interest is capable of transfer executed in blank;being perfected by filing.
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by A certificate of the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory Borrower's Secretary or Assistant Secretary certifying as to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party the Borrower's directors and, if required, shareholders, authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents, (B) the Borrower's articles of incorporation and bylaws, and (C) the signatures of the Borrower's officers or agents authorized to execute and deliver the Loan Documents and authorizing other instruments, agreements and certificates, including Advance requests, on the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;Borrower's behalf.
(xivvi) A Solvency Certificate executed current certificate issued by an Authorized Signatory the Secretary of State of Colorado certifying that Borrower is in compliance with all applicable organizational requirements of the Administrative State of Colorado.
(vii) Evidence that the Borrower regarding is duly licensed or qualified to transact business in all jurisdictions where the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence character of the initial Advance and property owned or leased or the issuance nature of the initial Letter of Credit hereunder;business transacted by it makes such licensing or qualification necessary.
(xvviii) Parent A certificate of an officer of Borrower confirming, in his personal capacity, the representations and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;warranties set forth in Article V.
(xviix) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses An opinion of counsel to the Administrative Agent;Borrower, addressed to the Lender.
(xxiix) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such Such other documents as the Administrative Agent Lender in its sole discretion may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedrequire.
(b) The Lender Group shall Receipt of reimbursement for all reasonable agreed-upon expenses for which invoices have received evidence satisfactory been presented to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingBorrower.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form Lender's completion and substance reasonably acceptable to the members satisfaction of the Lender Groupbusiness, gas market, financial, legal, title, engineering and environmental due diligence on the Properties, the Collateral and the Borrower conducted by the Lender.
(d) The Lender Group shall have received evidence Title review of the Properties, including the Borrower's right to produce oil and gas from ▇▇▇▇▇ held under oil and gas leases, satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingand its counsel.
(e) The Administrative Agent No material adverse changes in the Borrower or the Properties shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentoccurred.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Credit and Security Agreement (PetroHunter Energy Corp), Credit and Security Agreement (PetroHunter Energy Corp)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Lender and its counsel, of each of the following conditionsconditions on or before the Closing Date:
(a) The Administrative Agent Borrowers’ Cases have commenced and are pending in the Bankruptcy Court under Chapter 11 of the Bankruptcy Code;
(b) Lender shall have received each a certificate from an Authorized Officer of Borrowers attesting to the resolutions of Borrowers’ Boards of Directors authorizing (i) Borrowers’ commencement of the followingCases in the Bankruptcy Court under Chapter 11 of the Bankruptcy Code, (ii) Borrowers’ execution and delivery of this Agreement and the other Loan Documents to which Borrowers are parties, and (iii) specific officers of Borrowers to execute same;
(c) the Bankruptcy Court shall have entered the Interim Bankruptcy Court Order, and such order shall remain in full force and effect, except for such modifications thereto acceptable to Lender;
(d) no motion shall have been granted (i) appointing a trustee in any of Borrowers’ Cases, or (ii) converting any of Borrowers’ Cases to Chapter 7 of the Bankruptcy Code;
(e) Borrowers shall have filed with the Bankruptcy Court in the Cases a motion seeking the approval of the Bidding Procedures Order and the Purchase Agreement;
(f) the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of such advance, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date);
(g) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and shall be in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Datecounsel; and
(xxiiih) All such other documents as no Event of Default or event which with the Administrative Agent may reasonably request, certified by giving of notice or passage of time would constitute an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition Event of the Borrower Parties Default shall have occurred since February 2, 2008, which change has had or could and be reasonably expected to have a Materially Adverse Effect, and continuing on the Lender Group date of such advance nor shall have received a certificate of an Authorized Signatory either result from the making of the Administrative Borrower so statingadvance.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Loan and Security Agreement (Proxim Corp), Loan and Security Agreement (Proxim Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks pursuant to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are this Agreement is subject to the prior fulfillment of condition precedent that (i) the Borrower or the Originator shall have paid in full (x) all amounts required to be paid by each of them on or prior to the following conditionsdate hereof pursuant to the Fee Letter and (y) the fees and expenses described in Section 14.5(a) and invoiced prior to the date hereof, and (ii) the Agent shall have received, on or before the date of such initial Advance, the following, each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Agent:
(a) The Administrative Agent shall have received This Agreement, the Sale Agreement, the Purchase and Sale Agreement and each of the followingother Transaction Documents executed by the Originator, the Borrower or the Servicer, as applicable, each duly executed by the parties thereto;
(b) A certificate of the Secretary or Assistant Secretary or other appropriate officer of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Agent and the Lenders may conclusively rely until such time as the Agent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (b));
(c) The Certificate of Formation or other organizational documents of each Loan Party, duly certified by the Secretary of State of such Loan Party’s state of incorporation or organization, as of a recent date acceptable to the Agent in each case together with a copy of the limited liability company agreement or other organizational document of such Loan Party, duly certified by the Secretary or an Assistant Secretary of such Loan Party or other appropriate officer;
(d) Resolutions of the board of managers or other governing body of each Loan Party authorizing its execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and all other documents evidencing necessary corporate action and government approvals, if any;
(e) Copies of good standing certificates or similar certificates of existence for each Loan Party, issued by the Secretaries of State of the state of incorporation or organization of such Loan Party and the state where such Loan Party’s principal place of business is located;
(f) UCC financing statements and/or UCC financing statement amendments satisfactory to the Agent with respect to the Collateral together with written evidence satisfactory to the Agent that the same have been filed or submitted for filing in the appropriate public filing offices(s), in the Agent’s sole discretion, to perfect the Secured Parties’ first priority security interest in the Collateral;
(g) A signed acknowledgment by the Lockbox Bank, Wachovia and the Servicer of the assignment of the rights under the Lockbox Agreement to the Agent;
(h) Search reports provided in writing to the Agent (i) listing all effective financing statements that name any Loan Party as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (f) above and in such other jurisdictions that the Agent shall reasonably request, together with copies of such financing statements, and (ii) listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (i) above in the jurisdictions described therein and showing no such Liens;
(i) The Seller Note, duly executed by the Borrower and the Initial PCA Note, duly executed by the Seller;
(j) A favorable opinion of counsel to Loan Parties admitted to practice in the State of Illinois, covering the matters set forth in Exhibit 5.1(j);
(k) Favorable opinions of counsel to Loan Parties, as to:
(1) the existence of a “true sale” of the Receivables from the Originator to the Seller and from the Seller to the Borrower under the Sale Agreement and the Purchase and Sale Agreement, respectively; and
(2) the inapplicability of the doctrine of substantive consolidation to the Borrower and the Originator and to the Borrower and the Seller in connection with any bankruptcy proceeding involving any Loan Party;
(l) A pro forma Information Package, prepared as of the Cut-Off Date of August 31, 2008;
(m) Satisfactory results of a review and audit of the Originator’s collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Originator’s operating location(s) and satisfactory review and approval of the Eligible Receivables then in existence and a written outside audit report of a financial consultant reasonably acceptable to the Agent as to such matters, in each case, as of a recent date.
(n) The Liquidity Agreement, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement , duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related parties thereto;
(ivo) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged With respect to the Administrative Agent pursuant to the Security AgreementPerformance Guarantor, copies of its most recent reports on SEC Forms 10-K and 10-Q;
(p) The Fee Letter, together with stock powers payment of any and all fees due on or other appropriate instruments prior to the date of transfer executed in blankthe initial Advance;
(vq) The duly executed Blocked Account Agreements required by Section 6.15A certificate of an Authorized Officer of each of the Loan Parties certifying that as of the date of the initial Advance, no Event of Default or Unmatured Default exists and is continuing;
(vir) The Fee Letter Assignment Agreement, duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Dateparties thereto; and
(xxiiis) All such Such other agreements, instruments, certificates, opinions and other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Credit and Security Agreement (Packaging Corp of America), Credit and Security Agreement (Packaging Corp of America)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Each Lender’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are each Secured Party’s obligations hereunder is subject to the prior fulfillment of each of the following conditionsconditions precedent that:
(a) The Administrative Agent shall have received each of the followingreceived, in form and substance satisfactory to the Administrative AgentAgent and the Required Lenders, such documents, and completion of such other matters, as the Administrative Agent or the Required Lenders may reasonably deem necessary or appropriate, including, without limitation:
(i) This duly executed Agreementoriginal signatures to the Loan Documents;
(ii) A duly executed Revolving (A) each Loan Note Party’s Governing Documents, (B) a good standing certificate of each Loan Party certified by the Secretary of State of the jurisdiction of incorporation of each Loan Party as of a date no earlier than thirty (30) days prior to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, Effective Date together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers bring-down telegrams or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance facsimiles reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected requested by the Administrative Agent;
(iii) Secretary’s Certificates with completed Borrowing Resolutions from each of the Loan Parties in the form attached hereto as Exhibit F;
(iv) a duly executed Federal Reserve Form U-1 (Regulation U);
(v) proper financing statements in form appropriate for filing under the Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first priority liens, subject to Permitted Liens, and security interests created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement;
(vi) evidence of the completion of all other recordings and filings of or with respect to the Pledge and Security Agreement that the Agents may deem necessary in order to perfect and protect the security interest created thereunder and payment of all filing and recording fees related thereto;
(vii) evidence that all other actions that the Agents may deem necessary in order to perfect and protect the first priority liens, subject to Permitted Liens, and security interests created under the Pledge and Security Agreement has been taken (including, without limitation, receipt of duly executed payoff letters and/or release letters and UCC-3 termination statements);
(viii) [Reserved];
(ix) The a legal opinion of King & Spalding LLP, Borrower’s counsel to dated as of the Borrower Parties, addressed to Effective Date together with the Lender Groupduly executed original signatures thereto;
(x) The legal opinion payment of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP the fees then due as specified in Section 2.5 hereof and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Groupall other amounts then due as specified in Section 10.16;
(xi) The duly executed Request for Advance for the initial Advance of the LoansSolvency Certificate;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date such other agreements, instruments, approvals, opinions and calculated as of July 5other documents, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect satisfactory to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent and the Required Lenders in connection with form and substance, as the removal of any Liens (other than Permitted Liens)Administrative Agent or the Required Lenders may reasonably request, including, without limitation, all a duly executed W-9 (or such other applicable Internal Revenue Service tax Liens, against form) and requested “know your customer” information from the assets of the Borrower Loan Parties;
(xixxiii) Lien search results evidence of the insurance coverage required by Section 6.12 and such other insurance coverage with respect to the Borrower Parties from all appropriate jurisdictions business and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates operations of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents Loan Parties as the Administrative Agent may reasonably request, certified in each case, where requested by an appropriate governmental official the Administrative Agent, with such endorsements as to the named insureds or an Authorized Signatory if so requested.loss payees thereunder as the Administrative Agent may request and providing that such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon thirty (30) days’ prior written notice to the Collateral Agent and each such named insured or loss payee, together with evidence of the payment of all premiums due in respect thereof for such period as the Collateral Agent may request;
(bxiv) The Lender Group shall have received evidence satisfactory to them demonstrating that no change Borrower is in compliance with the business assets, management, operations or financial condition requirements of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Sections 6.5 and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required 7.3 and that there is no Default existsor Event of Default under Sections 8.14 or 8.15, in each case after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.any transactions contemplated at such time;
(exv) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.a Portfolio Report; and
(fxvi) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Miscellaneous Securities Report.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 2 contracts
Sources: Loan and Guaranty Agreement (Safeguard Scientifics Inc), Loan and Guaranty Agreement (Safeguard Scientifics Inc)
Conditions Precedent to Initial Advance. The effectiveness of this Agreement, the obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group (and the delivery to the Administrative Agent:Agent of the duly executed and effective signature pages for a Lender shall be deemed conclusive evidence of such Lender’s satisfaction of the following conditions):
(i) This duly executed AgreementAgreement and all other Loan Documents to be dated as of the Agreement Date;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note Revolving Loan Note, in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code UCC financing statements related thereto;
, and all original Collateral (ivif any) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to be delivered to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(viv) The duly executed Blocked Account Agreements required by Section 6.156.11;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(xv) The legal opinion of (Ai) ▇▇▇▇▇▇ ▇▇▇ , ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local counsel to the Borrower Parties, addressed and (ii) such other local counsel, as applicable, opinions as may be requested by the Administrative Agent; provided, however, that such opinions may be allocated between outside counsel and in-house counsel in a manner acceptable to each of the Lender GroupAdministrative Agent and the Borrower;
(xivi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5With respect to each Borrower Party, 2008;
(xiii) A a loan certificate signed by an Authorized Signatory the secretary or assistant secretary of each Borrower Partysuch Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, include the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation of such Borrower Party Person certified to be true, complete and correct by the Secretary of State State, or the equivalent, of the State jurisdiction of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws Laws, partnership agreement or operating agreement of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions of such Borrower Party Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and and, with respect to Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing from such Person’s jurisdiction of formation, dated within 15 days of the Agreement Date, and each other jurisdiction in which such Borrower Party Person does business, and (E) copies dated within 30 days of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyAgreement Date;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xvvii) Parent and its Subsidiaries (a) 2008 business plan projected financial statements for the remainder of fiscal year 2011, including its 12 month income statement, balance sheet, statement of cash flows and availability forecast Availability forecast, on a quarter by quarter basis, and (b) monthly projectionsprojected financial statements, including income statement, balance sheet and statement of cash flows, through January 31, 2009for fiscal year 2012 on an annual basis;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviiviii) Certificates of insurance and additional insured and loss payable payee (as applicable) endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviiiix) Pay-off and release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), includingand Funded Debt not permitted as of the Agreement Date by this Agreement and, without limitation, all tax Liens, against the assets termination of the Borrower PartiesExisting Facility;
(xixx) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, the Co-Collateral Agents and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixiii) A solvency certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of the Borrower Parties, after giving effect to the transactions contemplated herein including the initial Advance and, if any, the issuance of the initial Letter of Credit hereunder;
(xiv) A customary closing certificate executed by an Authorized Signatory of the Borrower Parties;
(xv) A Borrowing Base Certificate dated as of the Agreement Date, reflecting the status as of May 1, 2011, which shall demonstrate, after giving effect to the transactions occurring on the Agreement Date and the making of the initial Advances and issuance of the initial Letters of Credit hereunder, Availability is equal to or greater than $50,000,000; and
(xvi) A duly executed Request for Advance for the initial Advance of the Loans; and
(xvii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that since December 26, 2010, no change in the business assets, management, operations or financial condition of the Borrower Parties Materially Adverse Effect shall have occurred since February 2occurred, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received including a certificate of an Authorized Signatory of the Administrative Borrower so statingstating that since December 26, 2010, no Materially Adverse Effect shall have occurred.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable satisfactory to the members of the Lender Group.
(d) The Lender Group shall have received evidence reasonably satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened investigation, reversal or cancellation, that no other consents or approvals are required required, that all applicable waiting period with respect to Necessary Authorizations shall have expired, and that no Default or Event of Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code UCC financing statements naming the respective each Borrower Parties Party as a debtor and naming the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent Lender Group shall have received a Borrowing Base Certificate, in form and substance evidence satisfactory to them that each Borrower Party is in compliance with the USA Patriot Act and the Lender GroupGroup shall have completed its diligence, reflecting thatwith results satisfactory thereto, among other thingswith respect to applicable bank regulatory, as “know your customer,” and anti-money laundering matters including, for the avoidance of the Agreement Datedoubt, after giving effect with respect to the borrowings hereunder on the Agreement Date USA Patriot Act and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)OFAC.
(g) The Borrower Parties shall have exercised commercially reasonable efforts to deliver to the Administrative Agent shall have completed such other business and legal due diligence a Collateral Access Agreement with respect to the Borrower Parties’ chief executive office.
(h) The Borrowers and the results thereof shall have established a master collection deposit account with SunTrust Bank (which account shall be acceptable not used by the Borrowers, except to receive funds from the Blocked Accounts after the occurrence of a Dominion Event and under direction of the Administrative Agent, in its sole discretion).
Appears in 1 contract
Sources: Credit Agreement (New York Times Co)
Conditions Precedent to Initial Advance. The obligations At or before the time of the Lenders to undertake first Advance under this Agreement, the Revolving Loan Commitments Agent, for and to make the initial Advance hereunder, and the obligation on behalf of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunderLenders, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, each in full force and effect and in form and substance satisfactory to the Administrative Agent:Lenders, acting reasonably (unless delivery has been waived in accordance with Section 10.7.2):
(ia) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note all conditions precedent to the order of each Lender requesting a promissory note loans to be advanced to Omega by the U.S. Banks as referenced in the amount of such Lender’s Revolving Commitment Ratio Article [3] of the Revolving Loan Commitment;
(iii) The Security Omega Credit Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued are satisfied and outstanding shares of capital stock pledged completed in full to the Administrative Agent pursuant satisfaction of the Agent, and that duplicate original executed copies of all certificates and other documents to be provided by Omega to the Security Agreement, together with stock powers or other appropriate instruments U.S. Banks as provided in Article [3] of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory Omega Credit Agreement are provided to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ixb) The legal opinion of King & Spalding LLP, counsel evidence satisfactory to the Borrower PartiesAgent that all debts, addressed to liabilities and obligations owing under Kitchen Craft of Canada Ltd.'s existing credit arrangements with CIBC and any other debt not forming part of the Lender GroupPermitted Obligations will be paid in full concurrently with the initial Advance;
(xc) The legal opinion a letter of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel undertaking from Omega that duplicate original copies of all deliveries to be made to the Borrower Parties, addressed U.S. Banks pursuant to section [5.1] of the Omega Credit Agreement shall be concurrently made and delivered to the Lender GroupAgent during the term of this Agreement, such letter to be in the form attached hereto as Schedule 5.1(c);
(xid) The duly executed Request for Advance for the initial Advance certified copies of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as Constating Documents of the Agreement Date Borrower and calculated as all of July 5its Subsidiaries (other than the Transitory Subsidiary), 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction the jurisdictions in which such Borrower Party does each of them carries on business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that certified copies of the original Uniform Commercial Code financing statements naming corporate proceedings taken by the Borrower and all of its Subsidiaries (other than the Transitory Subsidiary) and Omega, authorizing them to execute, deliver and perform their respective Borrower Parties as debtor and obligations under the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.Credit Documents;
(f) The Administrative Agent shall have received a Borrowing Base Certificatean incumbency certificate showing the names and titles and bearing copies of the signatures of the officers of the Borrower authorized to execute the Credit Documents and to request Advances, in form and substance satisfactory to the Lender Group, reflecting that, among other things, certified as of the Agreement Date, after giving effect to Closing Date by the borrowings hereunder on Secretary or Assistant Secretary of the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Borrower;
(g) The Administrative Agent shall have completed such other business duly executed copies of this Agreement and legal due diligence the Security,
(h) certificates of insurance with respect loss payable to the Borrowers Agent on behalf of the Lenders, or other evidence that the covenants and conditions of the results thereof shall be acceptable Credit Documents concerning insurance coverage are being complied with;
(i) phase 1 environmental assessment reports (or other evidence satisfactory to the Administrative AgentLenders concerning environmental matters) in respect of material real property owned or occupied by the Borrower that are in the possession of the Borrower;
(j) releases, discharges and postponements (in registerable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances, and all statements and acknowledgments that are required in respect of other security interests affecting the Property of the Borrower and its sole discretion.Subsidiaries or other parties delivering Security to confirm that the collateral Encumbered by those Encumbrances does not include the collateral Encumbered by the Security or is a Permitted Encumbrance; (k) title opinions satisfactory to the Lenders covering all mortgages of freehold real property in Canada;
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders Lender to undertake the Revolving Loan Commitments Line of Credit and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior fulfillment of each of the following conditions, in form and substance satisfactory to Lender:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This this duly executed Agreement;,
(ii) A the duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;Validity Guaranty,
(iii) The the duly executed Fee Letter,
(iv) all original Collateral to be delivered to Lender pursuant to this Agreement, and transfer powers with respect thereto duly endorsed in blank,
(v) the Intellectual Property Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;Borrower,
(ivvi) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Control Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;6.13,
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, P.A., local counsel to the Borrower PartiesBorrower, addressed to the Lender Group;Lender,
(xiviii) The duly executed Request for Advance for the initial Advance of the Loans;Collateral Access Agreements as required by Lender,
(xiiix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A a loan certificate signed by an Authorized Signatory the secretary or assistant secretary of each Borrower PartyBorrower, in form and substance satisfactory to Lender, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyResponsible Officer who will be delivering Loan Documents, together with appropriate attachments which shall include, without limitation, include the following: (A) a copy of Certificate the Articles of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationGeorgia, (B) a true, complete and correct copy of the By-Laws bylaws of such Borrower PartyBorrower, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunderunder the Line of Credit, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of employment contracts for key management level employees of Borrower, and (F) if any, copies of all shareholders or share purchase agreements among relating to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;Borrower,
(xivx) A Solvency Certificate executed by an Authorized Signatory a certificate of the Administrative chief financial officer of Borrower regarding the solvency and financial condition of Parent and its SubsidiariesBorrower, together with a pro forma balance sheet after giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;Advance,
(xvxi) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates certificates of insurance and additional insured and loss payable endorsements with respect to the Borrower Parties, in each case, evidencing insurance meeting the requirements of Section 6.5;6.6,
(xviiixii) Paypay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent Lender in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, ) against the assets of the Borrower Parties;Borrower,
(xixxiii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;,
(xxxiv) Evidence evidence satisfactory to the Administrative Agent Lender that the Liens granted pursuant to the Security Documents this Agreement will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);Collateral,
(xxixv) Payment payment of all fees and expenses payable to the Administrative Agent, Lender and the Affiliates of the Administrative Agent, and the Lenders Lender in connection with the execution and delivery of this Agreementthe Loan Documents and the due diligence relating thereto, including, without limitation, including all Lender Expenses and all required fees and expenses of counsel to under the Administrative Agent;Fee Letter,
(xxiixvi) A a flow of funds report duly executed by the Administrative Borrower which report shall include that includes a statement of all sources and uses of funds on the Agreement Closing Date; , and
(xxiiixvii) All such all other documents as Loan Documents to be executed and delivered on or before the Administrative Agent may reasonably requestdate hereof, certified duly executed by an appropriate governmental official or an Authorized Signatory if so requested.the parties thereto;
(b) The Except with respect to the decrease in working capital from December 31, 2009, to December 31, 2010, as such decrease is reflected in the financial statements delivered to Lender Group on or prior to the Closing Date, and an additional decrease in working capital of approximately $246,462 from December 31, 2010, to March 10, 2011, Lender shall have received evidence satisfactory to them it that no change in the business business, assets, management, operations operations, condition (financial or financial condition otherwise) or prospects of the Borrower Parties shall have occurred since February 2December 31, 20082009, which change has had or could reasonably be reasonably expected to have a Materially Material Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower a Responsible Officer so stating.;
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them it that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal reversal, cancellation or cancellationwaiting period, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower a Responsible Officer so stating.;
(ed) The Administrative Agent Lender shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent naming Lender as secured party have been duly filed in all appropriate jurisdictions, in such form as ;
(e) Lender shall be have received evidence satisfactory to it that, concurrent with the Administrative Agent.Closing Date, Borrower has received a minimum of $400,000 in Net Cash Proceeds from the issuance of Shareholder Loans;
(f) The Administrative Agent Lender shall have received evidence satisfactory to it that no Advances will be made on the Closing Date;
(g) Lender shall have received a Borrowing Base Certificatetrue, complete and correct copy of each material contract of Borrower, and Lender shall have received a certificate of a Responsible Officer with respect thereto;
(h) Lender shall have received (i) current financial statements, including company prepared statements for the fiscal year of Borrower ended December 31, 2009, company prepared balance sheets, income statements, and statements of cash flow for the fiscal quarters ending March 31, 2010, June 30, 2010, September 30, 2010, and December 31, 2010 and the fiscal month ending January 31, 2011, (ii) current Accounts and Inventory reports, (iii) sales pipeline report and (iv) all other updated financial information as Lender may request;
(i) a certificate executed by Borrower certifying that (i) the representations and warranties contained this Agreement and the other Loan Documents shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) on and as of the Closing Date, (ii) no Default shall have occurred and be continuing, or would exist after giving effect to the transactions contemplated herein and (iii) there has been no material adverse change to Borrower’s business plan;
(j) all business, legal and other due diligence requested by Lender, and the results of the examination of such due diligence by Lender and its counsel, shall be in form and substance satisfactory to the Lender GroupLender; and
(k) such other documents or certificates, reflecting that, among and completion of such other thingsmatters, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Lender may reasonably deem necessary or appropriate.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (Vystar Corp)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial INITIAL Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Lender shall have received each of the followingreceived, in form and substance satisfactory to Lender, the Administrative Agentfollowing:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan this Agreement (including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted LiensSchedules hereto);
(xxib) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates a certificate of the Administrative AgentSecretary of Borrower with respect to articles, bylaws, incumbency and the Lenders in connection with resolutions authorizing the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(kan intellectual property security agreement executed by IBI and an intellectual property security agreement executed by FFM (including all Schedules to each of them), each in form and substance reasonably acceptable to the members of the Lender Group.;
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base CertificateSubordination Agreement, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 Lender;
(with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capitale) financing statements (Forms UCC-1).;
(f) insurance certificate;
(g) The Administrative Agent payment of the Facility Fee;
(h) a good standing certificate from Borrower's jurisdiction of incorporation (together with tax good standing) and certificates of foreign qualification from all jurisdictions in which the nature of Borrower's business requires Borrower to be qualified as a foreign corporation;
(i) a written strategic plan including a specification of the means for implementing such plan, in form and substance satisfactory to Lender;
(j) a copy of the Senior Loan Agreement and the other Senior Loan Documents, pursuant to which Senior Lender will make available to Borrower a credit facility in the minimum amount of $2,000,000 for a period until May 1, 2000, with each Senior Loan Document in form and substance satisfactory to Lender (and the closing of the transactions contemplated thereunder shall have completed such occurred or shall occur concurrently with the closing of the transactions under this Agreement);
(k) consolidated financial statements for Borrower's 1998 fiscal year;
(l) evidence that all required consents (including consents from Borrower's board of directors and shareholders and contractual counterparties), approvals and permits (including qualifications or permits required from governmental authorities in order to render inapplicable any usury or other business limitation upon the amounts in the nature of interest to be charged under the Loan Documents);
(m) An executed copy of the Merger Agreement certified by an officer of IBI and legal due diligence with respect FFM to be a true and correct counterpart of the Borrowers Merger Agreement, including all amendments, modifications, exhibits and the results thereof shall be schedules thereto;
(n) evidence acceptable to the Administrative AgentLender that FFM and Fast Forward have completed their merger on terms and conditions acceptable to Lender, in its sole discretion, that FFM is the surviving entity in connection with such merger, that all consents, approvals and authorizations required in connection with such merger have been obtained, and that all required filings and registrations have been completed; and
(o) such other documents, and completion of due diligence and such other matters, as Lender may deem necessary or appropriate.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Loan is subject to the prior fulfillment of conditions precedent that each of the following conditionsconditions shall have been satisfied, and the Lender shall have received (or waived receipt) on or before the date hereof all of the following collateral documents, each in form and substance satisfactory to the Lender and executed by the appropriate parties:
(a) The Administrative Agent shall have received following loan documents duly executed and delivered by Borrower and each Obligor, as the case may be, to Lender:
1) This Loan and Security Agreement;
2) Note (Line of Credit) in principal amount of $1,500,000.00;
3) Acknowledgment of Confession of Judgment as to Note;
4) Guaranty and Surety Agreement of PA1;
5) Such other and further Loan Documents as may be reasonably required by the Lender;
(b) Proof satisfactory to Lender that the PENNVEST Debt Obligation has been funded and closed;
(c) The payment by Borrower of all legal, recording, filing fees and other expenses (including but not limited to those relating to appraisals, environmental studies, loan documentation preparation) incurred by the Lender in connection with the Loan and the transactions contemplated thereby;
(d) Payment of the followingLoan Fee(s) referenced in Section 2.02 above;
(e) Documentation, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Lender, in and pursuant to which, PA1 has notified PENNVEST that it has irrevocably designated the Project Funding Trust Account as the sole account into which disbursements of Project Funding, including the proceeds of the PENNVEST Debt Obligation, shall be deposited directly by PENNVEST in accordance with the Funding Agreement;
(iif) A duly executed Revolving Loan Note All covenants, representations and warranties made by PA1 and/or Borrower in and pursuant to the order of each Lender requesting a promissory note Funding Agreement and any other Funding Document shall be true and correct in the amount of such Lender’s Revolving Commitment Ratio all material respects on and as of the Revolving Loan Commitmentdate of the Initial Advance with the same effect as if made on such date;
(iiig) The Security Agreement duly executed by representations and warranties made to Lender herein, in the Borrower Partiesother Loan Documents and in any other document, together shall be true and correct in all material respects on and as of the date of the Initial Advance with Uniform Commercial Code financing statements related theretothe same effect as if made on such date;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(vh) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by written opinion of Borrower's counsel dated as of the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryDate, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLender's counsel;
(ixi) The legal opinion Establishment of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender GroupInterest Reserve in accordance with Section 2.07 of this Agreement;
(xj) The legal opinion Receipt of PA1's detailed construction budget, as reviewed and approved by PENNVEST; and,
(Ak) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Such other and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to further documents as may be required reasonably by the Lender Group;
(xi) The duly executed Request for Advance for in order to consummate the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, transactions contemplated hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Bion Environmental Technologies Inc)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of Lender’s determination that each of the following conditionsconditions precedent has been satisfied:
(a) The Administrative Agent shall have received each of the following, in form Coverage and substance satisfactory to the Administrative Agent:
(i) This duly executed AgreementLTV Tests are satisfied;
(iib) A Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio and delivered original copies of the Revolving Loan Commitment;
(iii) The Initial Security Agreement duly executed by Instruments covering the Borrower PartiesInitial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventoryinstruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent and completed by auditors and appraisers selected opinion of Lender to perfect the Liens created by the Administrative Agentapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(ixc) The legal opinion Receipt by Lender of King & Spalding LLPany Lender required subordination, counsel non-disturbance and attornment agreements and/or estoppel certificates with respect to any commercial leases or ground leases (if any) affecting the Initial Mortgaged Property, provided that with respect to the Borrower PartiesInitial Mortgaged Properties, addressed to Lender shall not require subordination, non-disturbance and attornment agreements on the Lender Groupcommercial leases in place as of the Initial Closing Date;
(xd) The legal opinion Receipt by Lender of the portion of the Origination Fee due pursuant to Section 10.01 and the Initial Due Diligence Fees pursuant to Section 10.02(a); and
(Ae) Receipt by Lender of documentation acceptable to Lender evidencing the status of the environmental issues pertaining to the dry cleaners adjacent to the Mortgaged Property commonly known as ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Credit Facility Agreement (Bre Properties Inc /Md/)
Conditions Precedent to Initial Advance. L/C, or L/C Guaranty. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Foothill to make the initial Advance hereunder, and the obligation of the Issuing Banks advance or to issue (or arrange for the issuance of) provide the initial Letter of Credit hereunder, are L/C or L/C Guaranty is subject to the prior fulfillment fulfillment, to the satisfaction of Foothill and its counsel, of each of the following conditionsconditions on or before the Closing Date:
(a) The Administrative Agent the Closing Date shall occur on or before December 31, 1995;
(b) Old Lender shall have executed and delivered the Pay-Off Letter, together with UCC termination statements and other documentation evidencing the termination of its liens and security interests in and to the properties and assets of Borrower or a subordination agreement in form and substance satisfactory to Foothill in its sole discretion;
(c) All applicable parties and creditors shall have executed and delivered UCC termination statements and other documentation evidencing the termination of its liens and security interests in and to the properties and assets of Borrower or a subordination agreement in form and substance satisfactory to Foothill in its sole discretion;
(d) Foothill shall have received searches reflecting the filing of its financing statements;
(e) Foothill shall have received each of the followingfollowing documents, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventoryexecuted, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which document shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending such other documents and agreements as may be required or threatened reversal or cancellationdeemed necessary by Foothill, that no other consents or approvals are required duly executed and that no Default existsin full force and effect:
i. Loan and Security Agreement with Schedule A-1 - List of Approved Medi-Claim, after giving effect to the initial Advance hereunderInc. Account Debtors and Approved Written Contracts Schedule E-1 - Eligible Inventory and Locations Thereof, Schedule P-1 - Permitted Liens, Schedule 5.9 - Litigation and
ii. UCC, Tax and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.Judgment Lien Searches on
(ei) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictionsMedi-Mail, in such form as shall be satisfactory to the Administrative Agent.Inc. (ii) Family Pharmaceuticals of America, Inc. (iii) Medi-Claim, Inc. (iv) Medi-Phar, Inc. (v) Mednet, MPC Corporation (vi) GBK, Inc. (vii) Medical Services Agency, Inc. (viii)The Home Pharmacy (ix) ArcVentures, Inc.
(fx) The Administrative Agent shall have received a Borrowing Base CertificateTel-Drug, Inc. with Secretary of State of Nevada California South Carolina Pennsylvania Illinois South Carolina Maryland Local Searches in/with Cook County, Illinois C▇▇▇▇rland County, Pennsylvania Charleston County, South Carolina
iii. Assignment of Trademarks Medi-Mail, Inc. 1-800-RX Delivery 1-800-RX Discount RX for the 90's Medi-Claim Medi-Phar Mednet
iv. Lockbox Operating Procedural Agreements and Depository Account Agreements as to Medi-Mail, Inc. in form Nevada-First Interstate Bank of Nevada; as to Medi-Mail, Inc. in Chicago-First Chicago Bank and substance satisfactory Trust Company; as to the Lender GroupMedi-Mail, reflecting thatInc. in South Carolina-NationsBank; as to Medi-Claim, among other thingsInc.- Mellon Bank and Trust Company; as to Medi-Phar, Inc. in Nevada-First-Interstate Bank of Nevada; and as to Medi-Phar, Inc. in California-First Interstate Bank
v. UCC Financing Statements With Respect to (i) Medi-Mail, Inc. (ii) Family Pharmaceuticals of the Agreement DateAmerica, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement DateInc. (iii) Medi-Claim, Availability shall not be less than $75,000,000 Inc. (with trade payables being paid currentlyiv) Medi-Phar, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.Inc.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Banks to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior or contemporaneous fulfillment of each of the following conditions:
(a) The Administrative Agent and the Banks shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This this Agreement duly executed Agreementexecuted;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio loan certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated Date, in substantially the form attached hereto as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit K, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the Certificate of Incorporation and By-Laws laws of such the Borrower Partyas in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower and for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of such the Borrower Party authorizing the executionBorrower to execute, delivery deliver and performance by such Borrower Party of perform this Agreement and the other Loan Documents Documents, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a true, complete and correct copy of good standing from each jurisdiction any shareholders' agreements or voting trust agreements in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for stock of the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingBorrower;
(xviiiii) Certificates duly executed Notes;
(iv) duly executed Security Documents;
(v) copies of insurance and loss payable endorsements with respect to binders or certificates covering the assets of the Borrower Partiesand its Restricted Subsidiaries, in each case, and otherwise meeting the requirements of Section 6.55.5 hereof, together with copies of the underlying insurance policies;
(xviiivi) Pay-off letters, termination statements, canceled mortgages legal opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP counsel to the Borrower; addressed to each Bank and the like required by the Administrative Agent in connection with and dated as of the removal Agreement Date;
(vii) duly executed Certificate of any Liens Financial Condition for the Borrower and its Restricted Subsidiaries on a consolidated and consolidating basis, given by the chief financial officer of the Borrower;
(other than Permitted Liens), including, without limitation, all tax Liens, against viii) copies of the assets most recent quarterly financial statements of the Borrower Partiesand its Restricted Subsidiaries provided to each Bank and each Administrative Agent, certified by the chief financial officer of the Borrower;
(xixix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Banks shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or or, to the knowledge of the Borrower, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent and the Banks shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Borrower shall certify to the Administrative Agent and the Banks that each of the representations and warranties in Article 4 hereof are true and correct in all material respects as of the Agreement Date and that no Default or Event of Default then exists or is continuing.
(d) The Administrative Agent shall have received confirmation evidence reasonably satisfactory to it that the original Uniform Commercial Code financing statements naming Parent or American Radio Systems has contributed not less than $25,000,000 of equity into the respective Borrower Parties as debtor comprised of not less than $15,000,000 in cash (or acquisitions of property from non- Affiliates made with Capital Stock of American Radio Systems) and the balance in tangible assets (valued at American Radio Systems's cost for such assets).
(e) The Borrower shall have paid to the Administrative Agent as secured party have been duly filed for the account of each Bank the facility fees set forth in all appropriate jurisdictions, those letter agreements dated the Agreement Date in such form as shall be satisfactory to the Administrative Agentfavor of each Bank.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance evidence reasonably satisfactory to it that no real property owned by the Lender GroupBorrower is located in a Federal or state designated flood zone or, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of extent that any Letters of Credit hereunder on the Agreement Datesuch real property is located in a Federal or state designated flood zone, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)evidence satisfactory to it that such real property is sufficiently insured against flood related losses.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations Notwithstanding any other provisions contained in this Agreement but in addition to the other terms of this Agreement, the making of the Lenders to undertake the initial Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) of the initial Letter of Credit hereunderCredit, are subject to is conditioned upon the prior fulfillment fulfilment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order satisfaction of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the Borrower Parties, addressed to the Lender Group;conditions precedent):
(xia) The duly executed Request for Advance for the initial Advance All of the Loans;Loan Documents, together with all other agreements, instruments, documents and opinions required by Administrative Agent to be delivered to Administrative Agent prior to funding, have been fully executed and delivered to Administrative Agent.
(xiib) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed landlord’s waiver for each lease entered into by an Authorized Signatory of each any Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Partythe Locations, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party pursuant to which the landlord waives its Lien in any Collateral located at such Borrower Party is a party Location, has been fully executed and plans and agreements (other than agreements entered into pursuant delivered to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its SubsidiariesAgent, together with a pro forma balance sheet complete copy of each such lease.
(c) All certificates of insurance, binders and endorsements required under this Agreement have been delivered to Administrative Agent.
(d) Current searches of each Borrower and each Guarantor executing a Security Document in appropriate filing offices showing that (i) no Liens have been filed and remain in effect against such Borrower or such Guarantor or any Collateral except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the initial Revolving Advance, they will satisfy, release or terminate such Liens in a manner satisfactory to Administrative Agent, (ii) Administrative Agent has filed all UCC financing statements necessary to perfect Administrative Agent’s security interest, to the extent such security interest is capable of being perfected by filing and (iii) Administrative Agent’s Lien priority is acceptable to Administrative Agent in its sole discretion.
(e) Since December 31, 2024, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect.
(f) Administrative Agent shall have determined that immediately after giving effect to (i) the incurrence initial Revolving Advance, (ii) the payment of all fees due upon the execution of this Agreement and the provision of the initial Advance and Revolving Advance, (iii) the issuance payment or reimbursement by Borrowers of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited all Expenses incurred by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal transactions contemplated by this Agreement and the other Loan Documents, and (iv) the application for only the initial Revolving Advance, on a pro forma basis, of any Liens payment of all trade payables greater than sixty (other than Permitted Liens)60) days past due date, including, without limitation, all tax Liens, against the assets amount by which the lesser of (A) the Maximum Revolving Credit Amount less reserves established pursuant to Section 2.1(b)(iv) minus the sum of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment undrawn face amount of all fees Letters of Credit outstanding and expenses payable to (B) the Administrative AgentBorrowing Base, will exceed the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedinitial Revolving Advance is at least $15,000,000.
(bg) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the or completed satisfactory field examination and appraisals of Borrower’s and its subsidiaries’ respective Borrower Parties business, operations, financial condition, and assets.
(h) Such forms and verifications as debtor and the Administrative Agent as secured party and Lenders may need to comply with the Patriot Act have been duly filed delivered to Administrative Agent and each applicable Lender.
(i) All fees and reimbursable costs and expenses due under this Agreement through the date of initial Revolving Advance have been paid in all appropriate jurisdictionsfull.
(j) All other agreements, in such form as shall be satisfactory instruments, documents, reports and other information required by Administrative Agent have been delivered to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Applied Optoelectronics, Inc.)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Commitments and to fund the Tranche A Loan Commitments and the Tranche B Loan, and to make the initial Advance hereunder, of the Revolving Loans hereunder and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Tranche A Loan Note to the order of each Lender in the amount of such Lender's pro rata share of the Tranche A Loan Commitment, and a duly executed Tranche B Loan Note to the order of each Lender in the amount of such Lender's pro rata share of the Tranche B Loan Commitment;
(iii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio 's pro rata share of the Revolving Loan Commitment;
(iiiiv) The duly executed Swing Loan Note to the order of the Swing Bank;
(v) The Security Agreement duly executed by each of the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15Borrowers;
(vi) The Fee Letter Trademark Security Agreement duly executed by each of the BorrowersBorrowers and each of the Subsidiaries of the Borrowers (other than iHig▇.▇▇▇,▇▇▇.) which own trademarks;
(vii) The Pledge Agreements duly executed Post-Closing Agreementby the pledgors party thereto, together with original stock certificates, warrants, limited liability company interest certificates or limited partnership interest certificates and appropriate transfer powers executed in blank with respect to all collateral pledged thereunder;
(viii) A satisfactory field audit The Subsidiary Security Agreement duly executed by all direct and indirect Subsidiaries of all Accounts the Borrowers (other than foreign Subsidiaries and InventoryiHig▇.▇▇▇, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent▇▇c.);
(ix) The legal opinion Subsidiary Guaranty duly executed by all direct and indirect Subsidiaries of King & Spalding LLPthe Borrowers (other than foreign Subsidiaries and iHig▇.▇▇▇, counsel to the Borrower Parties, addressed to the Lender Group▇▇c.);
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) Robi▇▇▇▇ ▇▇▇ranty duly executed by Robi▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) A duly executed assignment of Wachovia Bank, N.A.'s existing mortgage on certain real property owned by Datasouth;
(xii) A cash collateral account pledge agreement duly executed by W. J▇▇▇▇ ▇▇▇t with respect to a pledge of $3,000,000 in cash compensation to be received by W. J▇▇▇▇ ▇▇▇t in connection with the Mergers;
(xiii) The legal opinions of Alst▇▇ & ▇ird LLP, counsel to the Parent, Bull Run, Capital and Datasouth, Dins▇▇▇▇ & ▇hohl LLP, counsel to Host, and Davi▇, ▇▇od▇▇▇ & ▇ado▇▇, ▇▇unsel to USA, each with respect to this Agreement in form and substance satisfactory to the Administrative Agent;
(xiv) The duly executed Request for Advance for the initial Advance of the Loans;
(xiixv) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5November 30, 20081999;
(xiiixvi) A loan certificate as to each Borrower signed by an Authorized Signatory of each such Borrower Partyin substantially the form of Exhibit S attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyBorrower, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate or Articles of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of for the State jurisdiction of such Borrower Party’s incorporation or formationBorrower's incorporation, (B) a true, complete and correct copy of the By-Laws of such Borrower PartyBorrower, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the borrowing hereunder and the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunderDocuments, (D) certificates of good standing from each jurisdiction in which such Borrower Party does is qualified to do business, and (E) true, correct and complete copies of all any employment agreements among of such Borrower, (F) true, correct and complete copies of any shareholder or voting trust agreements with respect to such Borrower and (G) a true and complete copy of resolutions adopted by the shareholders Board of Directors of such Borrower Party to which such Borrower Party is a party authorizing the consummation of the Mergers and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partyall transactions related thereto;
(xivxvii) A Solvency Certificate executed loan certificate of the Parent signed by an Authorized Signatory of the Administrative Borrower Parent in substantially the form of Exhibit U attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of the Parent, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Articles of 48 55 Incorporation of the Parent certified to be true, complete and correct by the Secretary of State of Georgia, (B) a true, complete and correct copy of the By-Laws of the Parent, (C) a true, complete and correct copy of the resolutions of the Parent authorizing the execution, delivery and performance by the Parent of the Loan Documents, (D) certificates of good standing from each jurisdiction in which the Parent is qualified to do business, (E) a true and complete copy of resolutions adopted by the Board of Directors of the Parent authorizing the consummation of the Mergers and all transactions related thereto, and (F) true, correct and complete copies of the executed Merger Documents;
(xviii) A Solvency Certificate of the Parent a consolidated basis with its Subsidiaries executed by the Chief Financial Officer of Bull Run, regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 and the accuracy of all internally prepared financial statements and business plan including its 12 month income statementplans, balance sheet, statement of cash flows in form and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009substance satisfactory to the Administrative Agent;
(xvixix) Consolidated A certificate of an Authorized Signatory of Host certifying that attached thereto is a true and complete copy of the NCAA Contract;
(xx) Audited consolidated financial statements of Parent and its Subsidiaries for (A) Bull Run for the eight-month transition period six months ending June 30, 1999, (B) Host for the fiscal year ending June 30, 1999 and (C) USA for the fiscal year ending June 30, 1999 and unaudited consolidated financial statements for the Parent, Bull Run, Host and USA for the three (3) months ended February 2September 30, 2008 1999;
(xxi) A statement of Robi▇▇▇▇'▇ ▇▇▇estricted Investments (as defined in the Robi▇▇▇▇ ▇▇▇ranty) as of the Agreement Date, with values thereon determined as of the Business Day immediately preceding the Agreement Date;
(xxii) Copies of certificates of insurance and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and related insurance policies with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance Borrowers and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.55.5 hereof;
(xviiixxiii) PayCopies of any pay-off letters, termination statements, canceled mortgages mortgage releases, trademark releases and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, ) against the assets of the Borrower PartiesBorrowers after giving effect to the refinancing of any existing Indebtedness;
(xixxxiv) Lien search results with respect to the Borrower Parties Borrowers, the Parent and any of their Subsidiaries from all appropriate jurisdictions and filing offices;
(xxxxv) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents executed on the Agreement Date will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixxvi) Payment of all fees and expenses payable to the Administrative AgentSince June 30, the Affiliates of the Administrative Agent1999, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business business, assets, management, operations operations, financial condition, projections, or financial condition prospects of the Borrower Parties Borrowers or any of their Subsidiaries or Affiliates, or in the Collateral, shall have occurred since February 2, 2008occurred, which change has had or could be reasonably expected to change, in the judgment of the Administrative Agent and the Lenders, may have a Materially Adverse Effect, and the Lender Group (ii) there shall have received a certificate of an Authorized Signatory been no material increase in the liabilities (absolute or contingent) of the Administrative Borrower so stating.
Borrowers or any of their Subsidiaries or Affiliates, whether or not disclosed or required to be reserved against on any pro forma balance sheet, and (ciii) The Lender Group there shall have received been no material decrease in the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members assets of the Lender Group.
(d) The Lender Group Borrowers or their Subsidiaries or Affiliates, nor shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.the
Appears in 1 contract
Sources: Credit Agreement (Bull Run Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender shall not be obligated to make the initial Advance hereunder, and the obligation any extension of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of credit hereunder unless each of the following conditionsconditions has been fulfilled to the satisfaction of Lender on or prior to the funding date of the initial Advance:
(ai) The Administrative Agent Lender shall have received each on or prior to the date of the followinginitial Advance, in form and substance satisfactory to the Administrative AgentLender:
(i1) This duly executed this Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement , duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related theretoand GPCC;
(iv2) Original stock certificates evidencing a certificate of a Responsible Officer of each Loan Party certifying the issued resolutions of the board of directors, managers, or others performing similar functions with respect to such Loan , as applicable, approving and outstanding shares authorizing the execution, delivery, and performance by such Borrower of capital stock pledged each Loan Document, the notices and other documents to the Administrative Agent be delivered by such Loan Party pursuant to each Loan Document to which it is a party, and the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blanktransactions contemplated thereunder;
(v3) The duly executed Blocked Account Agreements required by Section 6.15certificates of appropriate officials as to the existence and good standing of each Loan Party in its jurisdiction of incorporation or formation, as applicable;
(vi4) The Fee Letter the Mortgage, duly executed by the BorrowersGPCC;
(vii5) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventoryan ALTA Title commitment for Title Insurance issued by a title company acceptable to Lender with respect the Mortgaged Property, in form and substance reasonably satisfactory acceptable to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLender;
(ix6) The legal opinion evidence of King & Spalding LLPinsurance and loss payee endorsements required hereunder and certificates of insurance policies and/or endorsements naming Lender as additional insured or loss payee, counsel to the Borrower Parties, addressed to the Lender Groupas applicable;
(x7) The legal opinion one or more warrants to purchase shares of the Borrower’s common stock, par value $0.001 per share (A) “Common Stock”), at an exercise price equal to $0.01 per share, in the form attached as Exhibit B hereto, issued by Borrower in favor of ▇▇▇▇▇▇’s designees (collectively, the “Warrants”, and each individually, a “Warrant”); provided the aggregate number of shares of Common Stock initially exercisable under the Warrants shall be 1,504,140, subject to adjustment in accordance with the terms thereof; and
(8) such other documents and instruments with respect to the transactions contemplated hereby as ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Secured Line of Credit Agreement (Green Plains Inc.)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank shall have no obligation to make the initial Advance hereunder, and hereunder unless the obligation Bank shall have received on or before the date of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of such Advance the following conditionsdocuments:
(a) The Administrative Agent shall have received each Note properly executed and delivered on behalf of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedBorrower.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition Security Agreement properly executed and delivered on behalf of the Borrower Parties shall have occurred since February 2Borrower, 2008, which change has had or could be reasonably expected granting to have the Bank a Materially Adverse Effect, first priority security interest in all Collateral Receivables and other property described therein as security for the performance of the Borrower's obligations under this Agreement and the Lender Group shall have received a certificate of an Authorized Signatory of Note, together with any financing statement, lockbox agreement or control agreement, or other document deemed necessary or desirable by the Administrative Borrower so statingBank to perfect the security interest granted by the Security Agreement.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each Intercreditor Agreements acceptable to Bank in form and substance reasonably acceptable to the members of the Lender Groupsubstance.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect Amendments to the initial Advance hereunder, Lockbox Agreement and the Lender Group shall have received a certificate of an Authorized Signatory of Lockbox Paying Agent Agreement and Supplements to the Administrative Borrower so statingLockbox Agreement and Lockbox Paying Agent Agreement, in all cases in form and substance acceptable to Bank.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory An opinion of counsel to the Administrative AgentBorrower in favor of the Bank in a form and as to such matters as the Bank may request.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to A certificate by the Lender Group, reflecting that, among other things, as secretary of the Agreement DateBorrower certifying resolutions of the board of directors of the Borrower, after giving effect to approving the borrowings hereunder on execution and delivery of the Agreement Date Loan Documents and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)approving all other matters contemplated by this Agreement.
(g) The Administrative Agent shall have completed A certificate by the secretary of the Borrower certifying the names of the officer or officers of the Borrower authorized to sign the Loan Documents, together with a sample of the true signature of such other business officer or officers.
(h) A certificate of good standing for the Borrower dated within 30 days of the date hereof, and legal due diligence with respect articles of incorporation of the Borrower certified by the Delaware Secretary of State as of a date within 30 days of the date hereof.
(i) A certificate by the secretary of the Borrower certifying the Borrower's bylaws.
(j) A Daily Activity Report as of the date of closing.
(A) An amendment to the Borrowers Bankcard Marketing Agreement dated February 9, 1999, between the parties and an amendment to the results thereof shall be Purchase Agreement dated February 9, 1999, between the parties, both in form and substance acceptable to the Administrative AgentBank, providing that an Event of Default occurring under this Agreement shall be an additional event of termination under the Bankcard Marketing Agreement and under the Purchase Agreement, and providing for the delivery by Borrower of certain agreements from purchasers and secured parties of Borrower, and (B) agreements from Coast, J.L.B., Thornton, Varde, and North Division Associates in its sole discretionform and in substance satisfactory to Bank and providing for the application of payments received on account of certain credit card accounts.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior or concurrent fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock , certificates evidencing representing all of the issued certificated Equity Interests of the pledged Subsidiaries, and outstanding shares of capital stock pledged all other original Collateral to be delivered to the Administrative Collateral Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank;
(iv) The Holdings Pledge Agreement duly executed by Holdings, together with stock certificates representing all of the certificated Equity Interests of Zayo and transfer powers or other appropriate instruments of transfer executed with respect thereto duly endorsed in blank;
(v) A Trademark Security Agreement duly executed by each Borrower Party;
(vi) The duly executed Blocked Account Agreements required by Section 6.156.13;
(vivii) The duly executed Intercreditor Agreement;
(viii) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King ▇▇▇▇▇▇ ▇▇▇▇ & Spalding ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, P.A., local regulatory counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for legal opinion of ▇▇▇▇▇ Beer, in-house counsel to the initial Advance of Borrower Parties, addressed to the LoansLender Group;
(xii) A duly executed Borrowing Base Certificate dated as The legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Tennessee regulatory counsel to Zayo Bandwidth Tennessee, LLC, addressed to the Agreement Date and calculated as of July 5, 2008Lender Group;
(xiii) A The applicable Borrower Party shall use commercially reasonable efforts to obtain, with respect to the following locations, duly executed Collateral Access Agreements: (A) ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, New York, New York, (B) ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, (▇) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Newark, New Jersey, (D) Building Two at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇, (E) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, (F) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Drive, Memphis, Tennessee, and (G) all locations of any Borrower Party in Pennsylvania that are leased by any Borrower Party from PPL Electric Utilities Corporation;
(xiv) With respect to each Borrower Party and Holdings, a loan certificate signed by an Authorized Signatory the secretary or assistant secretary of each Borrower Partysuch Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, include the following: (A) a copy of the Certificate of Incorporation or Formation of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws Laws, partnership agreement or operating agreement of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions of such Borrower Party Person (or its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and and, with respect to Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from such Person’s jurisdiction of formation and each other jurisdiction in which such Borrower Party Person does business, and (E) copies of all employment contracts for key management level employees, if any, and (F) copies of all shareholders or share purchase agreements among relating to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderPerson;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviiixvi) Pay-off and/or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liensliens, against the assets of the Borrower Parties, the repayment of Funded Debt or the release of a Borrower Party from a Guaranty;
(xixxvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this AgreementAgreement that are invoiced on or prior to the date hereof, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xx) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of the Borrower Parties, after giving effect to the transactions contemplated herein including the initial Advance and, if any, the issuance of the initial Letter of Credit hereunder;
(xxi) A duly executed Request for Advance for the initial Advance of the Loans;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date;
(xxiii) Evidence that all applicable stamp tax or other tax related to the Loan Documents have been paid; and
(xxiiixxiv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingstating that since September 30, 2009, no Materially Adverse Effect shall have occurred and be continuing.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations (including all PUC’s) are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
(f) The Senior Note Indebtedness shall have been issued, the proceeds of the Senior Note Indebtedness shall have been received by the Borrowers and Agent shall have received a fully executed copy of the Indenture and each other Senior Note Document executed in connection therewith, accompanied by a certificate from an Authorized Signatory of the Administrative Borrower certifying that (i) each Senior Note Document is true and correct, (ii) each Senior Note Document is in full force and effect and (iii) all of the conditions to the closing of the transaction contemplated by the Senior Note Documents have been satisfied or waived.
(g) The Lender Group shall have received a certificate from an Authorized Signatory of the Administrative Borrower, in form and substance satisfactory to the Administrative Agent, demonstrating that the Borrowers and their Subsidiaries have Annualized EBITDA, as of December 31, 2009, of at least $70,000,000.
(h) The Lender Group shall have received evidence that the Required PUC Consent Applications set forth in Schedule 4.1(h) have been filed by the applicable Borrower Parties with the respective PUC.
(i) The Lender Group shall have received evidence satisfactory to them that each Borrower Party is in compliance with the USA Patriot Act.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents;
(ixb) The legal opinion of King & Spalding LLP, counsel duly executed original signatures to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) Control Agreements with Bankers Trust and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ;
(c) the Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State (Bor equivalent agency) of Borrower’s and of each U.S. Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) the Subordination Agreement by Bluestem Capital in favor of Bank, together with the duly executed original signatures thereto;
(f) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released;
(g) the Perfection Certificate of Borrower, together with the duly executed original signature thereto;
(h) a landlord’s consent in favor of Bank for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.A.▇▇▇▇, local counsel to ▇▇▇▇ ▇▇▇▇▇ by the Borrower Partieslandlord thereof, addressed to together with the Lender Groupduly executed original signatures thereto;
(xii) The a bailee’s waiver in favor of Bank for each location where Borrower maintains property with a third party, by each such third party, together with the duly executed Request for Advance for the initial Advance of the Loansoriginal signatures thereto;
(xiij) A duly executed Borrowing Base Certificate a legal opinion of Borrower’s counsel dated as of the Agreement Effective Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Dateoriginal signature thereto; and
(xxiiik) All such other documents payment of the fees and Bank Expenses then due as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedspecified in Section 2.5 hereof.
(b) The Lender Group shall have received evidence satisfactory to them that no change 3.1.1 Credit Extensions on the Effective Date. Bank will make Credit Extensions on the Effective Date in the business assets, management, operations or financial condition form of the Borrower Parties shall have occurred since February two (2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less subject to Borrower’s compliance with Section 3.1 other than $75,000,000 clause (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capitalb).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related theretofor all of the Borrower Parties;
(iv) Original The Reaffirmation Agreement duly executed by the Borrower Parties;
(v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(vvi) The To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers6.14;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(xviii) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A.K&L Gates LLP, local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xiiix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5April 30, 20082016;
(xiiix) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto;
(xi) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a certificate of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessis organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party is required to be qualified to do business; provided, that if a party and plans and agreements document referenced in clause (other than agreements entered into pursuant to A) or (B) was delivered in connection with a disclosed plan) providing for the grantExisting Credit Agreement, issuance or sale of Equity Interests then delivery of such document shall not be required so long as the applicable Borrower Party;Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect.
(xivxii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xvxiii) Parent Parent’s and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly Subsidiaries’ financial projections, including income statement, balance sheet and statement of cash flows, prepared on a monthly basis through January 31, 2009fiscal year 2016 and an annual basis through fiscal year 2021;
(xvixiv) Consolidated financial statements Payment of Parent all accrued and its Subsidiaries for the eight-month transition period ended February 2unpaid interest, 2008 fees, costs and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect expenses owing to the financial statements for Administrative Agent (as defined in the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingExisting Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement;
(xviixv) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesParties (other than, with respect to assets that are not included in the Borrowing Base, insurance policies of the Borrower Parties covering such assets in foreign jurisdictions), in each case, meeting the requirements of Section 6.5;
(xviiixvi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xixxvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixx) A flow certificate signed by an Authorized Signatory of funds report the Administrative Borrower certifying that each of the applicable conditions set forth in Sections 4.2 and 4.3 have been satisfied;
(xxi) That certain Master Assignment and Assumption Agreement duly executed by each of the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Dateparties thereto; and
(xxiiixxii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2January 30, 20082016, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that (i) all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that no other consents or approvals are required and that (ii) there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding (A) the Loans or any other transaction contemplated by the Loan Documents or (B) the conduct of the businesses and the ownership (or lease) of the Properties of the Borrower Parties, after giving effect except, with respect to the initial Advance hereunderthis clause (ii)(B), as could not reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent and the Lenders shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor all documentation and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentinformation required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business business, financial, collateral, regulatory and legal due diligence with respect to the Borrowers Borrower Parties and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) Borrower shall have delivered duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLP, counsel UK Borrower shall have delivered duly executed original signatures to the Borrower Parties, addressed to the Lender GroupMortgage Debenture;
(xc) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel US Borrower shall have delivered duly executed original signatures to the Borrower Parties, addressed to the Lender GroupControl Agreements;
(xid) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date Borrower shall have delivered its Operating Documents and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such US Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, Washington as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xive) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xvf) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009US Borrower shall have delivered duly executed original signatures to the IP Agreements;
(xvig) Consolidated financial statements Bank shall have received certified copies, dated as of Parent and its Subsidiaries for the eight-month transition period ended February 2a recent date, 2008 and the fiscal year-to-date period ended July 5of financing statement searches, 2008as Bank shall reasonably request, accompanied by written evidence (including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixh) Lien search results with respect to US Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate executed by Borrower;
(xxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report UK Borrower shall have delivered a Secretary’s Certificate duly executed by the Administrative Borrower which report shall include a statement Secretary of all sources and uses of funds on the Agreement Date; andUK Borrower;
(xxiiij) All such other documents as the Administrative Agent may reasonably requestUS Borrower shall have delivered a landlord’s consent executed by AVM, certified by an appropriate governmental official or an Authorized Signatory if so requested.L.P. and Liberty Property Limited Partnership in favor of Bank;
(bk) The Lender Group Borrower shall have received delivered a legal opinion of Borrower’s counsel in the United States and in England dated as of the Effective Date together with the duly executed original signatures thereto;
(l) [Reserved];
(m) Borrower shall have delivered evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group endorsements in favor of Bank; and
(n) Borrower shall have received a certificate of an Authorized Signatory of paid the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.4 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the followingfollowing (with sufficient copies for each of the Lenders), in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio loan certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryBorrower, in substantially the form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit N, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation or Formation incorporation of such Borrower Party the Borrower, certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationWashington, (B) and a true, complete and correct copy of the Byby-Laws laws of such the Borrower, (B) certificates of good standing for the Borrower Partyissued by the Secretary of State or similar state official for each state in which the Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of such Borrower Party the Borrower, authorizing the executionBorrower to execute, delivery deliver and performance by such Borrower Party of perform this Agreement and the other Loan Documents to which it is a party, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a true, complete and correct copy of good standing from each jurisdiction any agreement in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for voting rights, ownership interests, or management of the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingBorrower;
(xviiii) Certificates duly executed Notes (to the extent requested by any Lenders);
(iii) duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank and appropriate acknowledgements by the pledged limited liability companies and pledged partnerships;
(iv) duly executed Security Agreement, together with evidence of the filing of appropriate UCC-1 financing statement forms;
(v) the Subsidiary Guaranty;
(vi) the Subsidiary Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vii) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with evidence of the filing of appropriate UCC-l financing statement forms;
(viii) the Fee Letters;
(ix) copies of insurance and loss payable endorsements with respect to binders or certificates covering the assets of the Borrower Partiesand its Restricted Subsidiaries, in each case, and otherwise meeting the requirements of Section 6.55.5 hereof;
(xviiix) Pay-off letterslegal opinions of (i) Frie▇▇▇▇ ▇▇▇l▇▇ & ▇eil▇▇ ▇▇▇, termination statementsgeneral counsel to the Borrower, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)ii) Morr▇▇▇▇ & ▇oer▇▇▇▇ LLP, including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect FCC counsel to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory its Subsidiaries; each as counsel to the Administrative Agent that the Liens granted pursuant Borrower and its Subsidiaries, addressed to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees each Lender and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender GroupAdministrative Agent and its special counsel, reflecting thatand dated as of the Agreement Date;
(xi) duly executed Request for Advance for the initial Advance of the Loans, among other thingswhich Request for Advance shall include calculations demonstrating, as of the Agreement Date, Date after giving effect to the borrowings hereunder on the Agreement Date Date, the Borrower's compliance with Section 2.1 and Sections 7.8, 7.9, 7.10, and 7.11 hereof;
(xii) duly executed Use of Proceeds Letter;
(xiii) duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since December 31, 1999;
(xiv) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).other Loan Documents;
(gxv) The Administrative Agent shall have completed such other business and legal due diligence a loan certificate from each Restricted Subsidiary of the Borrower, in substantially the form attached hereto as Exhibit N, with respect to corporations, Exhibit O, with respect to partnerships, and Exhibit P with respect to limited liability companies, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the Borrowers following items: (A) a copy of the certificate or articles of incorporation of such Subsidiary or certificate of formation of such Subsidiary, as applicable, certified to be true, complete and correct by the results thereof shall be acceptable Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is incorporated or required to the Administrative Agentqualify to do business, in its sole discretion.(C) a true, complete and
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative AgentLender Group:
(i) This Agreement duly executed Agreementby the Borrower, the Guarantors, the Lenders, and the Administrative Agent;
(ii) A Any Revolving Loan Notes requested by any Lender duly executed Revolving Loan Note to by the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentBorrower;
(iii) The joinder to ABL/Term Intercreditor Agreement duly executed by the Administrative Agent;
(iv) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankeach Credit Party;
(v) The A Perfection Certificate with respect to the Credit Parties duly executed Blocked Account Agreements required by Section 6.15such Credit Party;
(vi) The Fee Letter A Borrowing Base Certificate duly executed by the BorrowersBorrower;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit legal opinions of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ , Halter & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit Parties, and ▇▇ LLP and (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Credit Parties, in each case addressed to the Lender Group, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including, without limitation, the Term Loan Facility Credit Agreement with respect to the Term Loan Facility), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(xiviii) The duly executed Request for Advance issuance of Letters of Credit for the initial Advance Letters of Credit to be issued on the LoansClosing Date;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiiiix) A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrower, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Material Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party Person is a party and plans and agreements (other than agreements entered into pursuant required to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partybe qualified to do business;
(xivx) A Solvency Certificate certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderParties;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Credit Parties, in each case, meeting the requirements of Section 6.56.8;
(xviiixii) Pay-off lettersUCC, termination statementsLien, canceled mortgages and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Lienspermitted under Section 7.2);
(xxixiii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixiv) A flow certificate signed by an Authorized Signatory of funds report the Borrower certifying that each of the applicable conditions set forth in Section 4.2 have been satisfied;
(xv) A payoff letter, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds each lender holding Indebtedness to be refinanced on the Agreement Date, together with all releases, terminations, or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(xvi) after giving effect to the Transactions, no Advances shall be outstanding;
(xvii) [reserved];
(xviii) Evidence that the Borrower has obtained (or will obtain substantially concurrently with the effectiveness of this Agreement) the 2028 Notes in the aggregate principal amount of $300,000,000 on terms and reasonably acceptable to the Administrative Agent; and
(xxiiixix) All such certified final copies of the 2028 Note Indenture and the other primary documents as related thereto and evidence that all of the Administrative Agent may reasonably requestconditions precedent to the initial borrowing under the 2028 Notes (in each case, certified by an appropriate governmental official other than the effectiveness of this Agreement) shall be satisfied or an Authorized Signatory if so requestedwaived substantially concurrently with the effectiveness of this Agreement.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them be satisfied that no change in the business assetsbusiness, managementcondition (financial or otherwise), operations results of operations, liabilities (contingent or financial condition otherwise), or properties of the Borrower Parties and its Restricted Subsidiaries (taken as a whole) shall have occurred since February 2December 31, 20082018, which change has had or could would be reasonably expected to have a Materially Material Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k5.4(c), each in form (ii) the consolidated financial statements of the Borrower and substance reasonably acceptable its Subsidiaries for the most recent fiscal quarter ending at least 45 days prior to the members Agreement Date, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the Lender Groupincome statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending December 31, 2024, prepared on an annual basis for each fiscal year (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(d) The Lender Group Administrative Agent shall have received evidence satisfactory to them a certificate signed by an Authorized Signatory of the Borrower certifying (i) that all Necessary Authorizations are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, after giving effect to the initial Advance hereundercorrect, and the Lender Group shall have received a certificate complete copies of an Authorized Signatory of the Administrative Borrower so statingall such Necessary Authorizations.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor (i) all documentation and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than fifteen (15) Business Days prior to the Administrative Agent.
Agreement Date and (fii) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory at least five days prior to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower must deliver a Beneficial Ownership Certification in relation to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Borrower.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Installed Building Products, Inc.)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) Borrower shall have delivered duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLPOther than accounts described in Section 6.8(a)(i), counsel Borrower shall have delivered duly executed original signatures to the Borrower Parties, addressed to the Lender GroupControl Agreement(s);
(xc) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower shall have delivered its Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State applicable state of such Borrower Party’s incorporation or formationorganization of Borrower, dated as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivd) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xve) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statementBorrower shall have delivered the Subordination Agreement duly executed by any holder of Subordinated Debt as required by Bank, balance sheet, statement in favor of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009Bank;
(xvif) Consolidated financial statements Bank shall have received certified copies, dated as of Parent and its Subsidiaries for the eight-month transition period ended February 2a recent date, 2008 and the fiscal year-to-date period ended July 5of financing statement searches, 2008as Bank shall request, accompanied by written evidence (including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Credit Extension, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixg) Lien search results with respect to Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate(s) executed by Borrower;
(xxh) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)Borrower shall have delivered a bailee’s/warehouseman’s waiver executed by each bailee, if any, of Borrower as required by Bank, in favor of Bank;
(xxii) Payment Borrower shall have delivered a legal opinion of all fees Borrower’s counsel as to authority and expenses payable to the Administrative Agentenforceability, the Affiliates dated as of the Administrative Agent, and the Lenders in connection Effective Date together with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agentduly executed original signatures thereto;
(xxiij) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received delivered evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to endorsements in favor of Bank;
(k) the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory completion of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be Initial Audit with results satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, Bank in its sole and absolute discretion; and
(l) Borrower shall have paid the fees and Bank Expenses then due as specified in Section 2.4 hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (World Energy Solutions, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each satisfaction by Borrower of the following conditions:
conditions precedent: (a) The Administrative Agent shall Lender must have received each of the following, following documents in form and substance satisfactory to Lender and, as appropriate, duly executed by the Administrative Agent:
parties thereto: (i) This duly executed Agreement;
, the Mortgage, the Indemnity, the Note and all other applicable Loan Documents; (ii) A duly executed Revolving Loan Note Copies of such authorizing resolutions of Borrower and its constituent entities, if any, as Lender may require with respect to the order of each Lender requesting a promissory note in Loan and the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
Documents; (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock One or more certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person or Persons on behalf of Borrower Partyand its constituent entities, together with appropriate attachments which shall includeif any, without limitation, the followingas Lender may require certifying: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete the names and correct by the Secretary of State true signatures of the State officers or other representatives of such Borrower Party’s incorporation or formation, the applicable entity authorized to sign the Loan Documents; (B) a true, complete that true and correct copy copies of the By-Laws organizational documents of the applicable entities are attached to such Borrower Party, certificate or certificates; and (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, other matters as applicable, hereunder, Lender may require; (Div) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated Current financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, Borrower and with respect to the Property and such other financial statements data as Lender shall require; (v) An independent M.A.I. appraisal of the Property and Improvements complying in all respects with the standards for real estate appraisals established pursuant to the eight-month transition period ended February 2Financial Institutions Reform, 2008Recovery, audited by independent public accountants and Enforcement Act of recognized national standing;
1989; (xviivi) Certificates The policies of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent Mortgage, together with evidence of the payment of the premiums therefor; (vii) A detailed report by a properly qualified engineer, which shall include, inter alia, a certification that such engineer has obtained and examined a list of prior 9 owners, tenants and other users of all or any portion of the Property or any improvements thereon, and has made an on-site physical examination of the Property, and a visual observation of the surrounding areas, and has found no evidence of past or present hazardous materials activities or the presence of hazardous materials; (viii) A paid title insurance policy, in connection with the removal amount of the Loan Allocation for each property in ALTA 10-17-92 or other form approved by Lender, issued by a title insurance company reasonably acceptable to Lender (the “Title Insurer”) which shall insure the Mortgage to be a valid lien on Borrower’s interest in the Property free and clear of all defects and encumbrances except those previously received and approved by Lender, and shall contain (i) full coverage against mechanics’ liens (filed and inchoate), (ii) a reference to the survey but no survey exceptions except those theretofore approved by Lender, (iii) such affirmative insurance and endorsements as Lender may require, and (iv) if any such policy is dated earlier than the date of the disbursement of the Loan, an endorsement to such policy, in form approved by Lender, redating the policy and setting forth no additional exceptions except those approved by Lender’s Counsel (a “Date Down Endorsement”); and shall be accompanied by such reinsurance agreements between the Title Insurer and title companies approved by Lender, in ALTA 1994 facultative form, as Lender may require; (ix) An as-built survey of the Property, certified to Lender and the Title Insurer; (x) Certified copies of all leases in respect of the Property and an estoppel regarding lease matters from each tenant or from Borrower; (xi) Opinions of Borrower’s counsel and local counsel to the effects reasonably required by Lender; Borrower hereby acknowledges that each of its counsel delivering opinion letters to Lender on or about the date hereof has been requested and directed by Borrower to do so; (xii) Copies of the certificate(s) of occupancy for the Property and of any Liens and all other authorizations (including plot plan and subdivision approvals, zoning variances, water, sewer, building and other than Permitted Liens)permits) required by governmental authorities or otherwise necessary for the use, includingoccupancy and operation of the Property for their intended purposes in accordance with all applicable laws; (xiii) UCC, without limitationjudgment and litigation searches against Borrower and advice from the Title Insurer to the effect that searches of proper public records disclose no materially adverse matters, all tax Liens, leases of personalty or financing statements filed or recorded against the assets of the Borrower Parties;
Mortgaged Property or Borrower; and (xixxiv) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
Such other documents as Lender may require; (xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxib) Payment of all fees due and expenses payable pursuant to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
Section 2.2. (c) The representations and warranties made to Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictionsherein, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificateother Loan Documents and in any other document, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.certificate or statement executed or delivered to
Appears in 1 contract
Sources: Revolving Credit Agreement
Conditions Precedent to Initial Advance. The Lender’s obligations of under this Agreement shall not become effective until the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have Lender has received each of the following, each in full force and effect and in form and substance satisfactory to the Administrative AgentLender, acting reasonably:
(a) a certificate of the Borrower containing the financial statements of the Obligors as contemplated in Section 7.3(b) and the information contemplated in Section 7.3(c), showing compliance with the financial covenants contained in Section 7.1, in each case for the Borrower’s fiscal period ended 31 December 2004;
(b) duly executed copies of the Security, duly registered;
(c) share certificates representing the Pledged Shares, and executed stock powers of attorney relating to those Shares;
(d) certificates of insurance or other evidence that the covenants and conditions of the Credit Documents concerning insurance coverage are being complied with;
(e) the Fee Agreement;
(f) full payment of all fees, expenses and other amounts owing to the Lender, including fees and disbursements of the Lender’s legal counsel incurred up to and including the date of this Agreement, and without limiting the Borrower’s responsibility for all legal costs incurred before or after that date, and including any amounts owing to the Lender’s other advisors;
(g) evidence that the delivery of Credit Documents will not contravene laws governing financial assistance or other similar laws which affect the Credit Documents;
(h) for each Obligor, a certificate to which shall be attached copies of its Constating Documents, a certificate of incumbency and certified copies of the corporate proceedings taken to authorize it to execute, deliver and perform its obligations under the Credit Documents;
(i) This duly executed Agreementreleases, discharges and postponements (in registrable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances, and all statements and acknowledgments that are required by the Lender acting reasonably in respect of other Encumbrances affecting the Property of the Obligors to confirm that each of those Encumbrances is a Permitted Encumbrance;
(iij) A duly executed Revolving Loan Note consents, if any, that are required from the directors or shareholders of the Obligors in connection with the Pledges of the Pledged Shares and in connection with any disposition of the Shares pursuant to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentSecurity;
(iiik) The Security Agreement duly executed by a certificate of the Borrower Parties, together with Uniform Commercial Code financing statements related theretocontaining complete copies of the Marigold Agreements;
(ivl) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower PartiesObligors (including opinion(s) of any local counsel), addressed to the Lender Group;
(x) The legal opinion of (A) and to B▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇ G▇▇▇, P.A., local ▇▇▇ LLP;
(m) the opinion of B▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP and any other counsel to the Borrower PartiesLender, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateLender; and
(xxiiin) All such other documents as the Administrative Agent Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.require. The Lender’s obligations under this Agreement are also subject to the following conditions being satisfied:
(bo) The technical and environmental due diligence reviews of the operations of the Obligors conducted by the Lender’s mining engineers and consultants, and satisfaction with the results of such reviews;
(p) the Lender Group shall being satisfied that there has not occurred or does not exist a circumstance or event which would or does have received evidence satisfactory to them that no change in a material adverse effect on the business financial condition, assets, management, operations properties or financial condition prospects of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingObligors.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Glamis Gold LTD)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) Borrower shall have delivered duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group[intentionally omitted];
(xc) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower shall have delivered its Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, California as of a date no earlier than thirty (B30) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect days prior to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderEffective Date;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Borrower shall have delivered duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been terminated or released;
(f) Borrower shall have delivered the Perfection Certificate executed by Borrower;
(g) Borrower shall have delivered evidence satisfactory to them Bank that all Necessary Authorizations the insurance policies required by Section 6 hereof are in full force and effect effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank;
(h) Borrower shall have paid the fees and are not subject to any pending or threatened reversal or cancellationBank Expenses then due as specified in Section 2.4 hereof; and
(i) Valeant Pharmaceuticals International, that no other consents or approvals are required a Delaware corporation, shall have executed and that no Default exists, after giving effect delivered a Licensee Agreement to the initial Advance hereunder, and Bank relating to the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictionsValeant License, in such the form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.Exhibit A.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks Lender to issue (or arrange for make its initial Advance under the issuance of) the initial Letter of Credit hereunder, are Facility is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have Lender having received each of the following, in form and substance each dated as of a date satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent Lender, provided that such condition precedent, being for the sole benefit of the Lender, may be unilaterally waived by it in whole or in part at any time on or before the date of the initial Advance:
(a) certified copies of the articles and completed by auditors and appraisers selected by borrowing by-laws of the Administrative AgentBorrower, together with a related certificate of non-restriction;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy copies of the resolutions of such the board of directors of the Borrower Party approving and authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partythis Agreement;
(xivc) A Solvency Certificate executed by an Authorized Signatory a certificate of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements status or like certificate with respect to the Borrower Parties, in each case, meeting issued by the requirements appropriate Governmental Authority of Section 6.5the jurisdiction of its incorporation;
(xviiid) Pay-off lettersa certificate of the Secretary or an Assistant Secretary of the Borrower, termination statements, canceled mortgages certifying as to the names and true signatures of its officers authorized to sign this Agreement and the like required by the Administrative Agent in connection with the removal other Loan Documents;
(e) a certificate of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets a Senior Officer of the Borrower Partiesto the effect that all representations and warranties of the Borrower set forth in Article 8 are true in all material respects as of the initial Drawdown Date;
(xixf) Lien search results with respect such other certificates and documentation relating to the Borrower Parties from all appropriate jurisdictions or this Agreement as separately agreed to by the Borrower and filing officesthe Lender;
(xxg) Evidence satisfactory to a certificate of a Senior Officer of the Administrative Agent Borrower that there has been no material adverse change in the Liens granted pursuant to financial condition or results of operations of the Security Documents will be first priority perfected Liens on Borrower and its Subsidiaries, taken as a whole, from the Collateral (subject only to Permitted Liensfinancial condition and results of operations of the Borrower and its Subsidiaries presented in the financial statements listed in Schedule 8.1(l);
(xxih) Payment favourable opinion of all fees counsel for the Borrower to and expenses payable to the Administrative Agent, the Affiliates in favour of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as and its counsel; and
(i) evidence satisfactory to the Lender that the Acquisition will be completed in accordance with the terms of the Agreement Date, after giving effect Acquisition disclosed in writing by the Borrower to the borrowings hereunder on Lender and that the Agreement Date and proceeds of the issuance initial Advance will be used by the Borrower only for the completion of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid Acquisition or another Permitted Purpose disclosed in writing by the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect Borrower to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionLender.
Appears in 1 contract
Sources: Non Revolving Credit Agreement (Hub International LTD)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related theretofor all of the Borrower Parties;
(iv) Original The Reaffirmation Agreement duly executed by the Borrower Parties;
(v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(vvi) The To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers6.14;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(xviii) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A.K&L Gates LLP, local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xiiix) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5April 30, 20082016;
(xiiix) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto;
(xi) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws or operating agreement of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a certificate of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessis organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party is required to be qualified to do business; provided, that if a party and plans and agreements document referenced in clause (other than agreements entered into pursuant to A) or (B) was delivered in connection with a disclosed plan) providing for the grantExisting Credit Agreement, issuance or sale of Equity Interests then delivery of such document shall not be required so long as the applicable Borrower Party;Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect.
(xivxii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xvxiii) Parent Parent’s and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly Subsidiaries’ financial projections, including income statement, balance sheet and statement of cash flows, prepared on a monthly basis through January 31, 2009fiscal year 2016 and an annual basis through fiscal year 2021;
(xvixiv) Consolidated financial statements Payment of Parent all accrued and its Subsidiaries for the eight-month transition period ended February 2unpaid interest, 2008 fees, costs and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect expenses owing to the financial statements for Administrative Agent (as defined in the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingExisting Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement;
(xviixv) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesParties (other than, with respect to assets that are not included in the Borrowing Base, insurance policies of the Borrower Parties covering such assets in foreign jurisdictions), in each case, meeting the requirements of Section 6.5;
(xviiixvi) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xixxvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixx) A flow certificate signed by an Authorized Signatory of funds report the Administrative Borrower certifying that each of the applicable conditions set forth in Sections 4.2 and 4.3 have been satisfied;
(xxi) That certain Master Assignment and Assumption Agreement duly executed by each of the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Dateparties thereto; and
(xxiiixxii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2January 30, 20082016, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that (i) all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that no other consents or approvals are required and that (ii) there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding (A) the Loans or any other transaction contemplated by the Loan Documents or (B) the conduct of the businesses and the ownership (or lease) of the Properties of the Borrower Parties, after giving effect except, with respect to the initial Advance hereunderthis clause (ii)(B), as could not reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent and the Lenders shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor all documentation and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentinformation required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business business, financial, collateral, regulatory and legal due diligence with respect to the Borrowers Borrower Parties and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Bank to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of condition precedent that the following conditions:
(a) The Administrative Agent Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative AgentBank, the following:
(i1) This duly executed this Agreement, the Notes and the Security Documents;
(ii2) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers Secretary or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory officer of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory its organization documents, incumbency and resolutions and original powers of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: attorney (Aif relevant) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees Agreement and expenses of counsel the other Loan Documents to the Administrative Agentwhich it is a party;
(xxii3) A flow the Warrant;
(4) subordination agreements (including a deed of funds report duly executed priority and subordination with respect to certain assets of MPL located in Australia) acceptable in form and substance to the Bank with ANZ Bank and investors in the Borrowers who are parties to the Investor Loan Documents;
(5) opinions of Borrowers' U.S. and Australian counsel satisfactory in form and substance to the Banks;
(6) guaranties by the Administrative Borrower Guarantor(s), provided, however, the Bank agrees that the Borrowers may postpone delivery of such guaranties until the 30th day following the Closing Date as long as the Borrowers provide the Bank prior to the Closing Date reasonable assurance that such guaranties will be available within such period.
(7) financing statements (Forms UCC-1), Australian Securities Commission forms, or other filings necessary to perfect the security interests and charges granted under the Security Documents;
(8) insurance certificate;
(9) payment of the fees and Bank Expenses then due specified in Section 2.5 hereof;
(10) receipt of the results of the initial accounts receivable audit, which report shall include a statement of all sources be satisfactory in form and uses of funds on substance to the Agreement DateBank; and
(xxiii11) All such other documents documents, and completion of such other matters, as the Administrative Agent Bank may reasonably request, certified by an appropriate governmental official deem necessary or an Authorized Signatory if so requestedappropriate.
(b12) The Lender Group shall have received evidence satisfactory that such Security Document required to them be stamped with duty under Australian law has been lodged for stamping at the Victorian Office of State Revenue with a check for the appropriate stamp duty, unless the Bank is advised by its Australian counsel that no change in the business assets, management, operations or financial condition as a matter of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could Australian practice such evidence may be reasonably expected to have furnished on a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingpost-closing basis.
(c13) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form all documents and substance reasonably acceptable evidence of title to the members property pledged by the MPL Share Mortgage and the other Security Documents including, but not limited to, share certificates and blank signed share transfers for all the shares pledged under any Security Document together with a certified copy of the Lender Groupshare register to establish that all certificates have been received.
(d14) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate from the Responsible Officer of an Authorized Signatory MPL indicating that (i) at the date of the Administrative Borrower so stating.
MPL Deed of Charge (e) The Administrative Agent shall have received confirmation that Future Property), the original Uniform Commercial Code financing statements naming value of the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed property owned by MPL in all appropriate jurisdictions, in such form as shall be satisfactory to Australian States (other than Victoria) is less than AUS $100,000 and (ii) at the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as date of the Agreement DateMPL Deed of Charge (Victoria), after giving effect to the borrowings hereunder on value of the Agreement Date and property owned by MPL in the issuance State of any Letters of Credit hereunder on the Agreement DateVictoria, Availability shall not be Australia is less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)AUS 2,000,000.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (Moldflow Corp)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each satisfaction of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each receipt by Lender of the followingfully executed Advance Request;
(b) the Coverage and LTV Tests are satisfied and the maximum Advance Amount is not exceeded;
(c) the Individual Property Coverage and LTV Tests are satisfied;
(d) if the Initial Advance includes a Variable Advance, receipt by Lender at least three (3) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in form and substance satisfactory accordance with the Cap Security Agreement, effective as of the Initial Closing Date;
(e) if the Initial Advance includes a Variable Advance, receipt by Lender of the Interest Rate Cap Documents (as defined in the Cap Security Agreement), effective as of the Initial Closing Date;
(f) delivery to the Administrative Agent:Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender to be filed or recorded, and funds adequate to pay all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(g) receipt by Lender of the Initial Origination Fee pursuant to Section 10.01(a) and the Initial Due Diligence Fee pursuant to Section 10.02(a);
(h) receipt by Lender of a Funding Commitment;
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note delivery by Lender to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio Borrower of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by confirmed Rate Form for the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent Initial Advance pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens2.01(c);
(xxij) Payment if the Advance is a Fixed Advance, delivery of one (1) or more Fixed Facility Notes duly executed by Borrower in the amount reflecting all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and terms of the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative AgentFixed Advance;
(xxiik) A flow if the Advance is a Variable Advance, delivery of funds report one or more Variable Facility Notes duly executed by Borrower in the Administrative Borrower which report shall include a statement amount reflecting all of all sources and uses the terms of funds on the Agreement DateVariable Advance; and
(xxiiil) All such other receipt by Lender of documents as the Administrative Agent may reasonably request, certified and instruments required by an appropriate governmental official or an Authorized Signatory if so requestedSection 5.09 and Section 5.10.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Credit Facility Agreement (Newcastle Investment Corp)
Conditions Precedent to Initial Advance. The obligations obligation of --------------------------------------- the Lenders to undertake the Revolving Loan Commitments and Banks to make the initial Advance hereunderunder this Agreement, and irrespective of satisfaction of any conditions under the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter Line of Credit hereunderprior to previous Advances, are is subject to the prior fulfillment satisfaction, in the sole discretion of each the Banks, on or before the date hereof of the following conditionsconditions precedent:
(a) The Administrative Agent Banks shall have received each the following, all of which must be satisfactory in form and content to the Banks, in their sole discretion:
(1) The Notes duly executed by the Company;
(2) The Guaranty, in the form attached hereto as Exhibit D, --------- duly executed by Prism;
(3) Certified copies of the followingCompany's articles of organization and operating agreement, and certificates of good standing dated no less recently than ten (10) days prior to the date of this Agreement;
(4) A written opinion of counsel to the Company and counsel to the Guarantor (each such counsel shall be acceptable to the Banks, in their sole discretion) in form and content satisfactory to the Banks, dated as of, or prior to, the date of this Agreement, addressed to the Banks.
(5) An original resolution of the members of the Company, certified as of the date of this Agreement by an individual possessing powers on behalf of the Company analogous to those of a corporate secretary (such individual is for purposes of this Agreement hereinafter referred to as the "Secretary"), authorizing the execution, delivery and performance of this Agreement and the Notes, and all other instruments or documents to be delivered by the Company pursuant to this Agreement;
(6) A certificate of the Company's Secretary in the form attached hereto as Exhibit F as to the incumbency and authenticity of the --------- signatures of the representatives of the Company executing this Agreement and the Notes and each Request and all other instruments or documents to be delivered pursuant hereto (the Banks being entitled to rely thereon until a new such certificate has been furnished to the Banks);
(7) Original financial statements of the Company for the most recent fiscal year end (the "Statement Date") containing a balance sheet and related statements of income and retained earnings and changes in financial position for the period ended on the Statement Date, all prepared in accordance with a tax basis of accounting , and applied on a basis consistent with prior periods and acceptable to the Banks;
(8) Financial statements of the Guarantor, duly certified as true, correct and complete by an officer, dated no less recently than June 30, 1999;
(9) Copies of the Company's insurance policies or certificates in lieu of policies, all in form and content satisfactory to the Bank, showing compliance by the Company as of the date of the initial Advance with the related provisions of Section 6.9 hereof;
(10) A certified copy of the Investment Criteria; and
(11) Payment to Banks for reimbursement of out-of-pocket fees and expenses incurred by Banks in connection with the negotiation and documentation of the Loan.
(12) A UCC-1 Financing Statement, in the form of Exhibit G --------- attached hereto executed by Borrower and evidencing Borrower's grant to Agent on behalf of the Banks of a security interest in the Collateral. (Notwithstanding anything to the contrary in this Agreement, the Banks shall be under no obligation to fund any Advance hereunder until the Banks shall have received a post-filing lien search evidencing the appropriate filing of the Financing Statement and disclosing no notice of any liens or encumbrances filed against any of the Collateral other than the Financing Statement and other liens in favor of the Banks.)
(13) Uniform Commercial Code, pending litigation, tax lien, judgment and bankruptcy searches dated no more than thirty (30) days prior to the date hereof and updated as frequently as the Banks may reasonably request.
(14) Such other documents, instruments and agreements as the Banks shall reasonably request, in form and substance satisfactory to the Administrative Agent:Banks.
(i15) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to At the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio sole discretion of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by Banks, the Borrower PartiesBanks may require any member or manager of the Company, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing all Affiliates of the issued Company or of any Subsidiary of the Company, and outstanding shares the Guarantor, to whom, or to any of capital stock pledged to whom, the Administrative Agent pursuant to Company shall be indebted as of the Security date of this Agreement, together with stock powers or other appropriate instruments to duly execute a Subordination of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Debt Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form attached hereto as Exhibit H; and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected --------- Banks shall have received an executed copy of said Subordination of Debt Agreement, certified by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance Secretary of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified Company to be true, correct and complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the date of the Advance, or if a Subordination of Debt Agreement Datehas been executed and delivered previously, after giving effect to an acknowledgment by such creditor of the borrowings hereunder on increased amount of the Agreement Date Loan hereby evidenced and the issuance continued validity of any Letters such Subordination of Credit hereunder on the Debt Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionLoan as hereby restated.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;its counsel:
(ixi) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance loan certificate of the Loans;
(xii) A duly executed Borrowing Base Certificate dated Borrower, in substantially the form attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyEXHIBIT O, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation or Formation incorporation of such Borrower Party the Borrower, certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationDelaware, (B) a copy of the by-laws of the Borrower as in effect on the Agreement Date, (C) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the States of Delaware, Missouri, California and Illinois, and for each other state in which the Borrower is required to qualify or has qualified to do business, (D) a true, complete and correct copy of the authorizing resolutions of the Borrower, authorizing it to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (E) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of the Borrower;
(ii) Duly executed Subordination Agreement;
(iii) Duly executed Note to the order of each Lender in the amount of such Lender's pro rata share of the Commitment;
(iv) Duly executed Borrower's Pledge Agreement, together with any appropriate stock certificates and undated stock powers executed in blank;
(v) Duly executed Security Agreement;
(vi) Lien search results with respect to the Borrower and each Subsidiary from all appropriate jurisdictions and filing offices;
(vii) Original UCC-1 financing statements, signed by the Borrower as debtor and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions;
(viii) A loan certificate from each Subsidiary of the Borrower, in substantially the form attached hereto as EXHIBIT P, including a certificate of incumbency with respect to each officer authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate or articles of incorporation of such Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Borrower PartySubsidiary, and (CD) a true, complete and correct copy of the resolutions of such Borrower Party Subsidiary authorizing the executionit to execute, delivery deliver and performance by such Borrower Party of perform the Loan Documents to which it is a party;
(ix) A duly executed Subsidiary Security Agreement, executed and authorizing delivered by each Guarantying Subsidiary of the borrowings or guarantyBorrower;
(x) Original UCC-1 financing statements, signed by each Guarantying Subsidiary, respectively, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does businessdebtor, and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions;
(Exi) copies A duly executed Subsidiary Guaranty executed and delivered by each Guarantying Subsidiary of all agreements among the shareholders Borrower;
(xii) A duly executed Subsidiary Pledge Agreement from any Guarantying Subsidiary of such the Borrower Party which has one or more corporate Subsidiaries, together with appropriate stock certificates and undated stock powers executed in blank;
(xiii) A duly executed Assignment of Intercompany Agreements from the Borrower with respect to which such Borrower Party is a party its rights under the Intercompany Agreements properly acknowledged and plans agreed to by CellNet California, and agreements (together with appropriate UCC-l financing statement forms and other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale appropriate forms of Equity Interests of such Borrower Partyperfection;
(xiv) A Solvency Certificate duly executed Assignment of Utility Contract from the Borrower with respect to its rights under the Utility Contract properly acknowledged and agreed to by an Authorized Signatory of the Administrative Borrower regarding the solvency Union Electric, and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence appropriate UCC-l financing statement forms and other appropriate forms of the initial Advance and the issuance of the initial Letter of Credit hereunderperfection;
(xv) Parent A certificate executed by the Borrower and its Subsidiaries (a) 2008 business plan including its 12 month income statementUnion Electric in form and substance satisfactory to the Administrative Agent certifying that the Borrower is not in default under the Union Electric Contract in any material respect and attaching a true, balance sheet, statement correct and complete copy of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009the Union Electric Contract;
(xvi) Consolidated financial statements Proof of Parent payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and its Subsidiaries for mortgage taxes payable in connection with the eight-month transition period ended February 2recording of any of the Loan Documents or the issuance of the title insurance commitments referred to above (whether due on the Agreement Date or in the future) including such sums, 2008 and the fiscal year-to-date period ended July 5if any, 2008, including balance sheets, income and cash flow statements prepared due in conformity connection with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingany future Advances;
(xvii) Certificates Copies of insurance any existing environmental reviews and loss payable endorsements audits with respect to Property owned by the Borrower Partiesand other information pertaining to actual or potential environmental claims as Administrative Agent may require;
(xviii) Copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries, in each casenaming the Administrative Agent as additional insured or named loss payee, as applicable, and otherwise meeting the requirements of Section 6.55.5 hereof;
(xviiixix) PayLegal opinions of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Borrower and the Subsidiaries, regarding, among other things, the absence of conflict between the Loan Documents CellNet's high-yield debt documents and instruments including the Indenture, and (B) Wikinson, Barker, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, FCC counsel to the Borrower and the Subsidiaries, in each case addressed to each Lender and the Administrative Agent, and dated as of the Agreement Date, in substantially the forms attached hereto as EXHIBITS Q AND R, respectively;
(xx) Duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, and after giving effect to the funding of the initial Advance hereunder and other payments being made and effected as of the Agreement Date, the Borrower's pro forma compliance with Sections 7.10, 7.11, 7.12 and 7.13 hereof;
(xxi) Duly executed Use of Proceeds Letter;
(xxii) Duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since June 30, 1998;
(xxiii) Audited financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended December 31, 1997, and an unaudited balance sheet and income statement of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ended June 30, 1998, demonstrating that CellNet has made an equity investment in the Borrower in an amount not less than $62,500,000;
(xxiv) Copies of any pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal satisfaction in full of all pre-existing Indebtedness for Money Borrowed (except for Permitted Debt and CellNet Subordinated Debt) of the Borrower and its Subsidiaries, and the termination of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against ) on the assets of the Borrower Partiesor any of its Subsidiaries including Liens securing the Indebtedness for Money Borrowed being refinanced by the initial Advance;
(xixxxv) Lien search results with respect Comfort Letter from CellNet, in form and substance satisfactory to the Borrower Parties from all appropriate jurisdictions and filing officesLenders;
(xxxxvi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees Operating and expenses payable to the Administrative Agent, the Affiliates financial projections of the Administrative Agent, and Borrower indicating future compliance with all applicable covenants during the Lenders in connection with the execution and delivery term of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixxvii) All such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them it that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected obtained all technically compatible FCC spectrum allocations necessary to have operate a Materially Adverse Effect, wireless data transmission system for Union Electric and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which it is a party and by the Subsidiaries of the Loan Documents to which they are parties, have been obtained or made, are in full force and effect and are not subject to any pending or or, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect cancellation prior to the initial Advance hereunderits stated termination date, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Administrative Agent shall have received confirmation that be satisfied with all terms and conditions, including any subordination provisions, of all Indebtedness of CellNet and all pre-existing Indebtedness (including Permitted Debt and CellNet Subordinated Debt) of the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictionsBorrower.
(d) The Lenders, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender GroupPaul, reflecting thatHastings, among other things▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable special counsel to the Administrative Agent, shall receive payment of all reasonable fees and expenses due and payable on the Agreement Date in its sole discretionrespect of the transactions contemplated hereby.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(ia) This duly executed Agreementoriginal signatures to the Loan Documents;
(iib) A duly executed Revolving Loan Note original signatures to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentControl Agreements;
(iiic) The Security Agreement the Operating Documents and long-form good standing certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released;
(f) the Perfection Certificate(s) of Borrower Parties, together with Uniform Commercial Code financing statements related the duly executed original signature(s) thereto;
(ivg) Original stock certificates evidencing evidence that the issued and outstanding shares existing Liens against Borrower in favor of capital stock pledged to the Administrative Agent pursuant to the Security AgreementBridge Bank, together with stock powers or other appropriate instruments of transfer executed in blankN.A. have been terminated;
(vh) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit a landlord’s consent in favor of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) Bank for ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ., ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇, ▇▇▇▇▇▇▇, P.A.▇▇▇ ▇▇▇▇ by the landlord thereof, local counsel to together with the Borrower Parties, addressed to the Lender Groupduly executed original signatures thereto;
(xii) The duly executed Request for Advance for the initial Advance a legal opinion of the Loans;
(xii) A duly executed Borrowing Base Certificate Borrower’s counsel dated as of the Agreement Effective Date and calculated as of July 5, 2008together with the duly executed original signature thereto;
(xiiij) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, insurance policies and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in endorsements required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.5 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to endorsements in favor of Bank;
(k) the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory completion of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be Initial Audit with results satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, Bank in its sole and absolute discretion; and
(l) payment of the fees and Bank Expenses then due as specified in Section 2.4 hereof.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and to make available the initial Advance hereunder, and under a Credit Facility on the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Initial Advance Date is subject to satisfaction, on or before the prior fulfillment Initial Advance Date, of each of the following conditions:conditions precedent, which conditions precedent are for the sole and exclusive benefit of the Lenders and may be waived in writing by the Administrative Agent at the direction of the Required Lenders in their sole discretion (it being acknowledged that, for purposes of the delivery requirements set out below in respect of the Loan Documents (other than this Agreement, the Escrow Agreement, the Arrangement Letter and the Agency Fee Letter), the Material Agreements and legal opinions, execution and delivery of such documents into the escrow contemplated by the Escrow Agreement and bearing a date of June 11, 2019 will satisfy the delivery requirements of this Section 10.1):
10.1.1 this Agreement and the other Loan Documents shall have been executed and delivered by the Obligors, the Limited Recourse Guarantors, the Administrative Agent and the Lenders parties thereto, other than as set forth in Section 9.2.15 in respect of the NFEC Lease;
10.1.2 each of the Direct Agreements (a) The other than the Landlord Direct Agreements in respect of the NFEC Lease and the Dorchester Lease), and the Escrow Agreement shall have been executed and delivered by all parties thereto;
10.1.3 the Administrative Agent shall have received and be satisfied with the (i) copies of non-disturbance agreements and postponements from all freehold mortgagees to the leasehold interests held by the tenants/sublandlords under the Leases if required to ensure that the occupation and possession of the premises by the tenant under such Leases will not be disturbed so long as the tenant or any leasehold mortgagee is not in default (beyond any period given to it in the Lease to cure such default), (ii) copies of the Investor Rights Agreement and the Convertible Debentures and (iii) Subordination Agreements in respect of the Convertible Debentures;
10.1.4 the representations and warranties set out in Article 8 shall be true and correct on the Initial Advance Date;
10.1.5 no Default or Event of Default shall have occurred and be continuing nor shall there be any Default or Event of Default after giving effect to the initial Advance on the Initial Advance Date;
10.1.6 the Administrative Agent shall have received an officer’s certificate of each Loan Party dated the Initial Advance Date (or the Closing Date, in the case of CSI) certifying that attached thereto are true and correct copies of the following documents, and that such documents are in full force and effect, unamended:
10.1.6.1 the constating documents of such Loan Party (including, in the case of the Borrower, the Investor Rights Agreement);
10.1.6.2 a certificate of incumbency; and
10.1.6.3 the resolutions or other documentation evidencing that all necessary action, corporate, partnership or otherwise, has been taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party (including, where applicable, the pledge of its Equity Interests);
10.1.7 the Administrative Agent shall have received a certificate of status, certificate of good standing or similar certificate with respect to the jurisdiction of incorporation or formation of each Loan Party;
10.1.8 the Administrative Agent shall have received an officer’s certificate of the Borrower dated the Initial Advance Date confirming Sections 10.1.4 and 10.1.5;
10.1.9 the Lenders shall have been provided with the most recent available financial information in respect of the Business provided by OLG to the Borrower, including draft financial statements (consisting of a balance sheet, an income statement, and a statement of cash flows) for the most recent Operating Year available, all in form and substance satisfactory to the Lenders;
10.1.10 the Administrative Agent shall have received a Compliance Certificate confirming as at the Closing Date, based on the most recently completed four Fiscal Quarter period for which financial information is available pursuant to Section 10.1.9 on a pro forma basis giving effect to the Purchase Transaction and the initial Advance, (i) compliance with the financial covenants set out in Section 9.4 and (ii) a Total Leverage Ratio not in excess of 2.75:1.00;
10.1.11 the Administrative Agent shall have received financial projections for the Borrower for each of the followingfive years following the Closing Date taking into account the new capital structure following the Closing Date and any transaction contemplated herein, in form and substance satisfactory to the Administrative Agent:.
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to 10.1.12 the Administrative Agent shall have received a Borrowing/Rollover/Conversion Notice and a payment direction in respect thereof (providing for, among other things, the deposit of a portion of the initial Advance hereunder in accordance with the Escrow Agreement);
10.1.13 the Security Documents shall have been executed and delivered by the Loan Parties and (except as set out below with respect to CSI) shall be in full force and effect, and the Administrative Agent shall have received certificates, if any, representing all Equity Interests pledged pursuant to the Security AgreementDocuments, together with related stock powers or other appropriate instruments of transfer duly executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.1510.1.14 PPSA financing statements or other registrations of the Security, or notice thereof, shall have been filed, registered, or recorded in all offices of public record, including but not limited to all applicable land registry offices, necessary or desirable in the opinion of the Administrative Agent to preserve or protect the charges and security interests created thereby;
(vi) The Fee Letter duly executed 10.1.15 the Administrative Agent shall have received certificates of insurance evidencing that the Obligors are carrying insurance in accordance with Section 9.2.10 and that the interests of the Administrative Agent as first loss payee and additional insured have been recorded in such insurance policies;
10.1.16 the Administrative Agent shall have received a lender title insurance policy or a binding commitment therefor issued by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit Title Insurer in respect of all Accounts and Inventory, and completion of satisfactory appraisals the Leases in the aggregate policy amount of all Inventoryat least $300,000,000, in form and substance reasonably satisfactory to the Lenders, acting reasonably;
10.1.17 the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion shall have received opinions of King & Spalding LLP, external counsel to each Loan Party dated the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesClosing Date, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages in form and the like required by substance satisfactory to the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)Agent, acting reasonably, including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results opinions with respect to (a) the Borrower existence of the Loan Parties, (b) the due authorization, execution and delivery of all Loan Documents, (c) the enforceability of all Loan Documents, (d) the effectiveness of the Security Documents to create valid security interests in favour of the Administrative Agent for the ratable benefit of the Secured Parties from all appropriate jurisdictions and filing officesthe perfection of such security interests, (e) the validity, enforceability and registration of the charges in favour of the Administrative Agent over the Borrower’s leasehold interests, (f) non-contravention of charter documents, including, as applicable, the Investor Rights Agreement, and (g) non-contravention of the Material Agreements;
10.1.18 all amounts and fees (xxincluding upfront fees, the agency fee and reasonable fees and disbursements of counsel to the Lenders and any other consultant or other third party professional service firms engaged by the Lenders) Evidence satisfactory that are due and payable to the Administrative Agent that or the Liens granted pursuant Joint Lead Arrangers on or before the Initial Advance Date shall have been paid or arrangements shall be in place to pay such amounts and fees concurrently with the initial Advance;
10.1.19 the Obligors shall have received all required governmental, shareholder and third party consents and approvals required to own the Casino Facilities, operate the Business and complete the transactions contemplated hereby, and the Borrower shall have provided evidence thereof to the Security Documents will be first priority perfected Liens on Administrative Agent and the Collateral (subject only to Permitted Liens)Lenders;
10.1.20 all searches reasonably requested by the Lenders’ counsel in respect of the Loan Parties have been completed, and all releases, discharges (xxi) Payment of all fees and expenses payable or written authorizations to discharge from the applicable Lien holder in form acceptable to the Administrative Agent), the Affiliates of postponements (in registrable form where appropriate) or acknowledgements, as required by the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel respect to all Liens (excluding Permitted Liens) shall have been delivered to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as 10.1.21 the Administrative Agent and the Lenders have received, at least five (5) Business Days prior to the Initial Advance Date (or such shorter period as the Lenders may agree), all information, reports and documents as they may reasonably requestrequire under applicable “know your customer” and anti-money laundering rules and regulations and shall be satisfied, acting reasonably, with the results of their review thereof;
10.1.22 the Administrative Agent shall have received evidence satisfactory to it that (i) the Borrower has been capitalized with at least $60,000,000 indirectly contributed to the Borrower by the Sponsor, in the form of the issuance of Equity Interests by the Borrower, and (ii) the Borrower has raised Net Proceeds of at least $40,000,000 by way of the issuance of Convertible Debenture to the Investor, in each case, on or prior to the Initial Advance Date and on terms acceptable to the Lenders, and (iii) the amount of the initial Advance hereunder to be deposited pursuant to the Escrow Agreement, together with the Sponsor’s and Investor’s contributions of funds pursuant to the Escrow Agreement, is sufficient to fund payment of the purchase price in full pursuant to the TAPA;
10.1.23 all Debt of the Obligors, other than Permitted Debt, shall have been repaid in full or shall be repaid contemporaneously with the initial Advance;
10.1.24 the Administrative Agent shall have received a certified copy of each Material Agreement then in effect and each such Material Agreement shall be in form and substance acceptable to the Lenders and their legal counsel;
10.1.25 The Investor Rights Agreement and each Material Agreement shall be in full force and effect, in the form reviewed and approved by an appropriate governmental official the Lenders and their legal counsel, as of the Initial Advance Date (without any amendment, modification or an Authorized Signatory if so requestedwaiver of any of the provisions thereof that would be materially adverse to the Lenders without the consent of the Lenders), and each Loan Party shall be in compliance in all material respects with all of its obligations thereunder;
10.1.26 no Material Adverse Change shall have occurred since the date of the most recent audited combined financial statements in respect of the Business provided to the Lenders;
10.1.27 there shall be no order preventing, and no claim or judicial or administrative proceeding, or investigation before or by any Governmental Authority against (i) any party to the Material Agreements for the purpose of enjoining or preventing the right of the Borrower to operate the Business (as contemplated under the COSA) or to consummate the TAPA, or (ii) any party to the Loan Documents for the purpose of enjoining or preventing the financing transactions contemplated hereby;
10.1.28 the Initial Advance Date shall have occurred on or before June 10, 2019.
(b) The Lender Group 10.1.29 the Administrative Agent and the Lenders shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of Purchase Transaction shall be consummated on the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to Business Day following the initial Advance hereunder, in accordance with the TAPA and the Lender Group Escrow Agreement, without any material amendments, waivers or consents by the Borrower unless approved in writing by the Required Lenders;
10.1.30 all relevant filings shall have received a certificate of an Authorized Signatory been made and regulatory approvals obtained in respect of the Administrative Borrower so stating.Purchase Transaction; and
(e) The 10.1.31 the Administrative Agent shall have received confirmation such additional evidence, documents or undertakings as the Lenders have reasonably requested in connection with the consummation of the transactions contemplated hereby; provided that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as documents delivered pursuant to this Section 10.1 shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificatein full force and effect, and in form and substance satisfactory to the Lender GroupRequired Lenders, reflecting that, among other things, as of the Agreement Date, after giving effect acting reasonably. Notwithstanding anything to the borrowings hereunder on contrary in this Agreement, CSI will not be considered a party to this Agreement, the Agreement Date Loan Documents to which it is a party will not be effective as against CSI, and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability CSI shall not be less than $75,000,000 (with trade payables being paid currentlyconsidered an Obligor hereunder, expenses unless and liabilities being paid in until the ordinary course of business Purchase Transaction is completed. Immediately upon such completion, and without acceleration of sales further action by any party, CSI shall become a party to this Agreement, the Loan Documents to which it is a party shall become effective as against CSI, and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof it shall be acceptable to the Administrative Agent, in its sole discretionconsidered an Obligor for all purposes hereof.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(ia) This Borrower shall have delivered duly executed original signatures to the Loan Documents to which it is a party;
(b) Borrower shall have delivered a duly executed Intellectual Property Security Agreement;
(iic) A duly executed Revolving Loan Note to the order of each Lender requesting Borrower shall have delivered its Operating Documents and a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State States of such Borrower Party’s incorporation or formation, California and Delaware as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivd) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xve) Parent and its Subsidiaries Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixf) Lien search results with respect to Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate executed by Borrower;
(xxg) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received delivered evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.5 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing lender’s loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group endorsements in favor of Bank;
(h) Bank shall have received a certificate of conducted an Authorized Signatory audit of the Administrative Borrower so stating.Collateral to Bank’s satisfaction; and
(ei) The Administrative Agent Borrower shall have received confirmation that paid the original Uniform Commercial Code financing statements naming the respective Borrower Parties fees and Bank Expenses then due as debtor and the Administrative Agent as secured party have been duly filed specified in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative AgentSection 2.4 hereof.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Interlink Electronics Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and and, if applicable, to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative AgentLender Group:
(i) This Agreement duly executed Agreementby the Borrowers, the Guarantors, the Lenders, and the Administrative Agent;
(ii) A duly executed Any Revolving Loan Note Notes requested in writing by any Lender at least three (3) Business Days prior to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter Date duly executed by the Borrowers;
(viiiii) The Reaffirmation Agreement, duly executed Post-Closing Agreementby each Credit Party;
(viiiiv) A satisfactory field audit of all Accounts An Information and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory Collateral Disclosure Certificate with respect to the Administrative Agent and completed Credit Parties duly executed by auditors and appraisers selected by the Administrative Agentsuch Credit Party;
(ixv) The legal opinion opinions of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local counsel to the Borrower PartiesCredit Parties (opining on New York, addressed Delaware, California, Washington, Oregon and federal law), which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material debt agreements (including without limitation the 2010 Indenture with respect to the Lender Group2017 Notes and the 2020 Notes and the 2021 Indenture with respect to the 2021 Notes), and orders and decrees; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(xivi) The duly executed Request for Advance for the initial Advance of the Loans, if applicable, with disbursement instructions attached thereto;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiiivii) A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the followingfollowing attachments: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State (or equivalent body) of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the board resolutions (or equivalent) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized; provided, and that if a document referenced in clause (EA) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements or (other than agreements entered into pursuant to or B) was delivered in connection with a disclosed plan) providing for the grantExisting Credit Agreement, issuance or sale of Equity Interests then delivery of such Borrower Partydocument shall not be required so long as the applicable Credit Party certifies that no changes have been made to such document, and such document remains in full force and effect;
(xivviii) A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower Parent regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderParties;
(xvix) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statementCertificates of insurance, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2Credit Parties (other than IMS Southern, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesLLC), in each case, meeting the requirements of Section 6.5;
(xviiix) Pay-off lettersUCC, termination statementsPPSA, canceled mortgages Lien, and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixii) All A certificate signed by an Authorized Signatory of the Borrowers certifying that each of the applicable conditions set forth in Sections 4.2(a) and (d) have been satisfied.
(i) Immediately prior to the effectiveness of this Agreement, all accrued and unpaid interest and all fees owing under the Existing Credit Agreement shall have been paid in cash in full.
(ii) The Administrative Agent and the Lenders agree that the Revolving Loan Commitment of each of the Lenders immediately prior to the effectiveness of this Agreement shall be reallocated among the Lenders such that, immediately after the effectiveness of this Agreement in accordance with its terms, the Revolving Loan Commitment of each Lender shall be as set forth on Schedule 1.1(a). In order to effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignment and Acceptance (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may reasonably requestdirect or approve, certified by an appropriate governmental official such that after giving effect to this Agreement, each Lender holds Revolving Loans equal to its Aggregate Commitment Ratio (based on the Revolving Loan Commitment of each Lender as set forth on Schedule 1.1(a)). To the extent the reallocation permitted pursuant to this Section 4.1(b) results in the prepayment of any SOFR Advance in whole or an Authorized Signatory if so requestedin part, the Lenders hereby agree to waive any reimbursement obligations of the Borrowers arising under Section 2.9 in connection therewith.
(bc) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
Representative stating that no change in the business, condition (cfinancial or otherwise), results of operations, liabilities (contingent or otherwise), or properties of the Parent and its Restricted Subsidiaries (taken as a whole) The Lender Group shall have received the financial statements described in Section 5.1(k)occurred since September 28, each in form and substance 2024, which change has had or would be reasonably acceptable expected to the members of the Lender Grouphave a Materially Adverse Effect.
(d) The Lender Group Administrative Agent shall have received evidence satisfactory to them (i) the financial statements (including balance sheets and related statements of comprehensive income, equity and cash flows) described in Section 5.1(k) and (ii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 28, 2030, prepared on an annual basis for each fiscal year (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results and such differences may be material).
(e) The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrowers certifying that all Necessary Authorizations described in clause (a) of the definition thereof are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default exists, after giving effect to ongoing investigation or inquiry by any Governmental Authority regarding the initial Advance hereunder, and Loans or any other transaction contemplated by the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingLoan Documents.
(ef) The At least five (5) days prior to the date of this Agreement, the Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor all documentation and the Administrative Agent as secured party have been duly filed information required by any Governmental Authority and requested in all appropriate jurisdictions, in such form as shall be satisfactory writing by any Lender at least ten (10) days prior to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date under any applicable “know your customer” and Anti-Money Laundering Laws including the issuance of Patriot Act and, if any Letters of Credit hereunder on Borrower qualifies as a “legal entity customer” under the Agreement DateBeneficial Ownership Regulation, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid a Beneficial Ownership Certification in the ordinary course of business and without acceleration of sales and without deterioration in working capital)relation to such Borrower.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders --------------------------------------- LGE to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent LGE shall have received each of the following, in form and substance satisfactory to the Administrative AgentLGE:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note LGE in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement Agreement, Pledge Agreement, Intellectual Property Security Agreements, Mortgage, Subsidiary Guaranty, and Subsidiary Security Agreement, duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related parties thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to Secretary's Certificate from the Borrower Partiesand each of its Material Subsidiaries party to a Loan Document, addressed to the Lender Group;
(x) The legal opinion of attaching hereto: (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a - certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State respective officers of the State of Borrower or such Borrower Party’s incorporation or formationSubsidiary, as the case may be, (B) a true, complete and - correct copy of the By-Laws of the Borrower or such Borrower PartySubsidiary, as the case may be, and (C) a true, complete and correct copy of the resolutions of the - Borrower or such Borrower Party Subsidiary, as the case may be, authorizing the borrowing hereunder and the execution, delivery and performance by such Borrower Party if the Loan Documents.
(v) A copy of the Certificate of Incorporation of the Borrower and each of its Material Subsidiaries that are party to a Loan Documents and authorizing Document certified by the borrowings or guaranty, as applicable, hereunder, Secretary of State of the its state of incorporation.
(Dvi) certificates Certificates of good standing from each jurisdiction in which such the Borrower Party does is required to be registered to do business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;.
(xivvii) A Solvency Certificate executed by an Authorized Signatory Evidence of the Administrative Borrower regarding the solvency perfection and financial condition priority of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include and its Material Subsidiaries party to a statement of all sources and uses of funds on the Agreement DateLoan Documents; and
(xxiiiviii) All such Such other documents and evidence as the Administrative Agent LGE may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.;
(b) The Lender Group shall have received evidence satisfactory to them that no change in All of the business assets, management, operations or financial condition representations and warranties of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and its Subsidiaries in this Agreement and the Lender Group other Loan Documents shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described be true and correct in Section 5.1(k)all material respects, each in form both before and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the application of the proceeds of the initial Advance hereunder, and Advance; and
(c) All of the Lender Group conditions to the closing under the Restructuring Agreement shall have received a certificate of an Authorized Signatory been satisfied or waived with the consent of the Administrative Borrower so statingLGE.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Foothill to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are advance is subject to the prior fulfillment fulfillment, to the satisfaction of Foothill and its counsel, of each of the following conditionsconditions on or before the Closing Date:
(a) The Administrative Agent the Closing Date shall occur on or before July 31, 1995;
(b) Foothill shall have received each of the followingfollowing documents, duly executed, and each such document shall be in form full force and substance satisfactory effect:
i) a reaffirmation of the UM&M Guaranty; and
ii) the Term Note.
(c) Foothill shall have received a certificate from the Secretary of Borrower attesting to the Administrative Agent:
(i) This duly executed Agreementresolutions of Borrower's Board of Directors authorizing its execution and delivery of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute same;
(iid) A duly executed Revolving Loan Note Foothill shall have received a certificate of corporate status with respect to the order Borrower, dated within ten (10) incorporation of each Lender requesting a promissory note Borrower, which certificate shall indicate that Borrower is in the amount of good standing in such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitmentstate;
(iiie) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock Foothill shall have received certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency corporate status with respect to Borrower, each Authorized Signatory dated within fifteen (15) days of the Closing Date, such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified certificates to be true, complete and correct issued by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction states in which such Borrower Party does business, and (E) copies of all agreements among its failure to be duly qualified or licensed would have a material adverse effect on the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition or properties and assets of Parent and its SubsidiariesBorrower, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared which certificates shall indicate that Borrower is in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national good standing;
(xviif) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Foothill shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition an opinion of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, Borrower's counsel in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid Foothill in the ordinary course of business and without acceleration of sales and without deterioration in working capital).its sole discretion; and
(g) The Administrative Agent all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have completed such other business been delivered or executed or recorded and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable in form and substance satisfactory to the Administrative Agent, in Foothill and its sole discretioncounsel.
Appears in 1 contract
Sources: Loan and Security Agreement (Victoria Creations Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents for each Credit Party;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group[reserved];
(xc) The legal opinion of the Operating Documents and good standing or equivalent certificates (Along-form, if available in the applicable jurisdiction) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Credit Party and their respective Subsidiaries certified to be true, complete and correct by the Secretary of State of the State (or equivalent agency) of such Borrower Credit Party’s incorporation and such Subsidiaries’ jurisdiction of organization or formation, (B) a true, complete formation and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does is qualified to conduct business, and each as of a date no earlier than thirty (E30) copies of all agreements among days prior to the shareholders of such Borrower Party Effective Date;
(d) duly executed original signatures to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing the completed Borrowing Resolutions for the grant, issuance or sale of Equity Interests of such Borrower each Credit Party;
(xive) A Solvency Certificate executed certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
written evidence (xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixf) Lien search results the Perfection Certificates of each Credit Party, together with respect to the Borrower Parties from all appropriate jurisdictions and filing officesduly executed original signatures thereto;
(xxg) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)[reserved];
(xxih) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses [reserved];
(i) a legal opinion of counsel to the Administrative AgentCredit Parties dated as of the Effective Date together with the duly executed original signature thereto;
(xxiij) A flow of funds report the duly executed by original signatures to the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; andGuaranty;
(xxiiik) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, insurance policies and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in endorsements required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.5 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate endorsements in favor of an Authorized Signatory Bank; and
(l) payment of the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.5 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders As a condition precedent to undertake the Revolving Loan Commitments and Bank's obligation to make the initial Advance hereunderAdvance, Borrowers shall, at their expense, deliver the following items to Bank, each of which must be satisfactory to Bank in both form and content (the documents referred to in Paragraphs (a) through (c) below are, together with this Credit Agreement and the obligation documents referred to in paragraphs (a) and (b) of Section 10, sometimes referred to hereinafter as the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of "Credit hereunder, are subject to the prior fulfillment of each of the following conditions:Documents"):
(a) The Administrative Agent shall have received Note duly executed by both Borrowers.
(b) Twelve Guaranty Agreements, each of duly executed by a different Guarantor.
(c) A Pledge and Security Agreement (the following"Security Agreement") duly executed by Individual Borrower, in form and substance satisfactory to the Administrative Agent:
together with (i) This financing statements (form UCC-1) duly executed filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in Bank's opinion, desirable to perfect the security interest created by the Security Agreement;
; (ii) A duly executed Revolving Loan Note certified copies of requests for information or copies (form UCC-11) or equivalent reports listing the financing statements referred to in (i) above and no other financing statements covering the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
Pledged Collateral; (iii) The Security Agreement duly executed original stock certificates for the Pledged Collateral accompanied by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
stock powers required by the Security Agreement; and (iv) Original stock certificates evidencing whatever consents, approvals, agreements and waivers Bank considers necessary or prudent so that the issued pledge of and outstanding shares security interest in the Pledged Collateral (including any Post-Merger Shares) to and in favor of capital stock pledged Bank and Bank's exercise of its remedies with respect thereto under the Security Agreement will not violate any agreement or law or be otherwise impaired or impeded.
(d) Evidence of the completion of all recordings, filings and deliveries as may be necessary, or, in the opinion of Bank, desirable, to perfect the Administrative Agent pursuant to security interests and liens created by the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;. EXHIBIT 10.4(C)
(ve) The duly executed Blocked Account Agreements required by Section 6.15;Whatever certificates, resolutions and other evidence Bank may require regarding the organization and existence of Entity Borrower and each Guarantor and regarding the authority and power of each to enter into and perform the Credit Documents and other related documents to which it is a party or signatory.
(vif) The Fee Letter duly executed by the Borrowers;Current financial statements and income verifications for each Borrower and each Guarantor.
(vii) The duly executed Post-Closing Agreement;
(viiig) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal favorable opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇Z▇▇▇▇, P.A., local counsel to the for each Borrower Partiesand each Guarantor, addressed to the Lender Group;covering such matters as Bank may request.
(xih) The duly executed Request for Advance for Such other approvals, consents, certificates, opinions and documents as Bank may request. In addition, Bank's obligation to make the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and conditioned upon its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agentsatisfied, in its sole discretion, with the reports it receives regarding each Borrower and each Guarantor from whatever banks or other creditors it makes inquiries of and fulfillment of any additional conditions precedent set forth in any commitment letter relating to the line of credit contemplated hereby.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (On or arrange for the issuance of) the initial Letter of Credit hereunder, are subject prior to the prior fulfillment of Closing Date, each of the following conditionsconditions precedent shall have been satisfied:
(a) The Administrative Agent Bank shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
from Borrower (i) This a copy, certified by a duly executed Agreement;
authorized officer of Borrower to be true and complete on and as of the Closing Date, of Borrower's Articles of Incorporation, and by-laws or code of regulations as in effect on the Closing Date (together with any an all amendments thereto); (ii) A duly executed Revolving Loan Note to the order charter or other organizational documents of each Lender requesting a promissory note in Borrower, certified by the amount Ohio Secretary of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
State; and (iii) The Security Agreement duly executed a Certificate of Good Standing for Borrower, each issued by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;Ohio Secretary of State not more than thirty (30) days before the Closing Date.
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(vb) The Bank shall have received from Borrower copies, certified by a duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit authorized officer of all Accounts Borrower to be true and Inventory, complete on and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as Closing Date, of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies records of all agreements among the shareholders of such corporate action taken by Borrower Party to which such Borrower Party is a party and plans and agreements authorize (other than agreements entered into pursuant to or in connection with a disclosed plani) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees Agreement and expenses of counsel the other Loan Documents and to the Administrative Agent;
which it is a party; (xxiiii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement its performance of all sources of its obligations under each of such documents; and uses of funds on (iii) the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified making by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition Borrower of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingborrowings contemplated hereby.
(c) The Lender Group Bank shall have received from Borrower an incumbency certificate, dated as of the financial statements described Closing Date, signed by a duly authorized officer and giving the name and bearing a specimen signature of each individual who shall be authorized (i) to sign, in Section 5.1(k)the name and on behalf of Borrower, each in form and substance reasonably acceptable to the members of the Lender GroupLoan Documents to which Borrower is or is to become a party on the Closing Date; and (ii) to give notices and to take other action on behalf of Borrower under the Loan Documents.
(d) The Lender Group Borrower shall have received evidence satisfactory to them that all Necessary Authorizations are in full force executed and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect delivered to the initial Advance hereunderBank the Note, the Assignments, the Environmental Indemnity Agreement, the Mortgages, Uniform Commercial Code Financing Statements (the "Financing Statements") such additional documents, instruments and agreements as the Lender Group shall have received a certificate of an Authorized Signatory of Bank may reasonably require to evidence or to secure the Administrative Borrower so statingLoan or as may be necessary or reasonable or reasonably appropriate to enable the Title Company Title Policies as required by this Agreement.
(e) The Administrative Agent Borrower shall have received confirmation that have:
(i) Filed the original respective Mortgages for record in the real property records of the counties in which the respective Mortgaged Properties are located;
(ii) Filed the Financing Statements for record in the appropriate public records of each county in which a Mortgaged Property is located and in the Uniform Commercial Code financing statements naming indices maintained by the respective Borrower Parties as debtor Ohio Secretary of State;
(iii) Furnished a Title Policy insuring that each Mortgage is the first and paramount lien upon the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory Mortgaged Property encumbered thereby;
(iv) Furnished to the Administrative Agent.
Bank a survey with respect to each Mortgaged Property showing such matters as may be required by the Bank, which survey shall be: (fx) The Administrative Agent shall have received a Borrowing Base Certificate, acceptable in form and substance satisfactory content to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect Agent; (y) certified to the borrowings hereunder on the Agreement Date Bank and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 Title Company; and (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(gz) The Administrative Agent shall have completed such other business been prepared by a registered surveyor acceptable to the Agent in accordance with the minimum standard detail requirements for ALTA/ACSM Title Surveys, so as to eliminate any and legal due diligence all "survey exceptions" from the Title Insurance Policy with respect to the Borrowers Mortgaged Property, and the results thereof shall be acceptable containing (A) a note as to the Administrative Agentzoning classification of the subject property; and (B) if applicable, in its sole discretion.the Flood Map panel number, suffix, map date and zone for the subject Mortgaged Property; and
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each Receipt by Lender of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly fully executed AgreementAdvance Request;
(iib) A duly executed Revolving Loan Note If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio Initial Closing Date, of the Revolving Loan Commitmentconfirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(iiic) The Security Agreement duly executed If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Borrower PartiesPledge, together with Uniform Commercial Code financing statements related theretoInterest Rate Cap Agreement, effective as of the Initial Closing Date;
(ivd) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged Delivery to the Administrative Agent pursuant to Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note or Fixed Facility Note, as applicable, the Guaranty, the Initial Security AgreementInstruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, together with stock powers or and other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventoryinstruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent and completed by auditors and appraisers selected opinion of Lender to perfect the Liens created by the Administrative Agentapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(ixe) The legal opinion of King & Spalding LLPIf the Initial Advance is a Variable Advance, counsel to the Borrower Parties, addressed to the receipt by Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as first installment of Variable Facility Fee and the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed entire Discount payable by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens1.04(b), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiif) All such other documents as the Administrative Agent may reasonably request, certified Receipt by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected Initial Origination Fee pursuant to have a Materially Adverse Effect, Section 10.03(a) and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Initial Due Diligence Fee pursuant to Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital10.04(a).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Credit Facility Agreement (Camden Property Trust)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank's obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) Borrower shall have delivered duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLP, counsel Borrower shall have delivered duly executed original signatures to the Borrower Parties, addressed to the Lender GroupControl Agreements;
(xc) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower shall have delivered its Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State States of such Borrower Party’s incorporation or formation, Delaware and Utah as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivd) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xve) Parent Borrower shall have delivered the Subordination Agreement duly executed by Galen Partners III, LP, Gale▇ ▇▇▇tners International ▇▇▇, LP and its Subsidiaries (a) 2008 business plan including its 12 month income statementGalen Employee Fund III, balance sheet, statement LP ▇▇ ▇▇vor of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009Bank;
(xvif) Consolidated financial statements Bank shall have received certified copies, dated as of Parent and its Subsidiaries for the eight-month transition period ended February 2a recent date, 2008 and the fiscal year-to-date period ended July 5of financing statement searches, 2008as Bank shall request, accompanied by written evidence (including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixg) Lien search results with respect to Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate(s) executed by Borrower;
(xxh) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received delivered evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.5 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group endorsements in favor of Bank; and
(i) Borrower shall have received a certificate of an Authorized Signatory of paid the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.4 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Specialized Health Products International Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) : The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) Lender Group: This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower PartiesBorrowers, together with Uniform Commercial Code financing statements related thereto;
the Guarantors, the Lenders, and the Administrative Agent; Any Revolving Loan Notes requested in writing by any Lender at least three (iv3) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged Business Days prior to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter Agreement Date duly executed by the Borrowers;
(vii) ; The Security Agreement, the Canadian Security Agreement, and the Reaffirmation Agreement, each duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts by each Credit Party party thereto; An Information and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory Collateral Disclosure Certificate with respect to the Administrative Agent and completed Credit Parties duly executed by auditors and appraisers selected by the Administrative Agent;
(ix) such Credit Party; The legal opinion opinions of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local counsel to the Borrower PartiesCredit Parties (opining on New York, Delaware, California, Washington, Oregon and federal law), and local counsel for Georgia and Wisconsin, in each case addressed to the Lender Group;
, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material debt agreements (xi) including without limitation the Indenture with respect to the 2017 Notes and the 2020 Notes and the New Indenture with respect to the 2021 Notes), and orders and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests; The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) with disbursement instructions attached thereto; A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the board resolutions (or equivalent) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized; provided, and that if a document referenced in clause (EA) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements or (other than agreements entered into pursuant to or B) was delivered in connection with a disclosed plan) providing for the grantExisting Credit Agreement, issuance or sale of Equity Interests then delivery of such Borrower Party;
(xiv) document shall not be required so long as the applicable Credit Party certifies that no changes have been made to such document, and such document remains in full force and effect; A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower Parent regarding the solvency and financial condition of Parent and its Subsidiariesthe Credit Parties; Certificates of insurance, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2Credit Parties (other than IMS Southern, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesLLC), in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters; UCC, termination statementsPPSA, canceled mortgages Lien, and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) ; Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
; and A certificate signed by an Authorized Signatory of the Borrowers certifying that each of the applicable conditions set forth in Sections 4.2(a) and (xxiid) A flow have been satisfied. The Administrative Agent and the Lenders agree that the Revolving Loan Commitment of funds report duly executed each of the Lenders immediately prior to the effectiveness of this Agreement shall be reallocated among the Lenders such that, immediately after the effectiveness of this Agreement in accordance with its terms, the Revolving Loan Commitment of each Lender shall be as set forth on Schedule 1.1(a). In order to effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the Administrative Borrower which report shall include a statement applicable Assignment and Acceptance (but without the payment of all sources any related assignment fee), and uses of funds on the Agreement Date; and
(xxiii) All such no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may reasonably requestdirect or approve, certified by an appropriate governmental official or an Authorized Signatory if so requested.
such that after NAI-1536628076v4 giving effect to this Agreement, each Lender holds Revolving Loans equal to its Aggregate Commitment Ratio (bbased on the Revolving Loan Commitment of each Lender as set forth on Schedule 1.1(a)). To the extent the reallocation permitted pursuant to this Section 4.1(b) The Lender Group shall have received evidence satisfactory to them that no change results in the business assetsprepayment of any SOFR Advance in whole or in part, management, operations or financial condition the Lenders hereby agree to waive any reimbursement obligations of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group Borrowers arising under Section 2.9 in connection therewith. The Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Representative stating that no change in the business, condition (financial or otherwise), results of operations, liabilities (contingent or otherwise), or properties of the Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since September 25, 2021, which change has had or would be reasonably expected to have a Materially Adverse Effect. The Administrative Borrower so stating.
(c) The Lender Group Agent shall have received (i) the financial statements (including balance sheets and related statements of comprehensive income, equity and cash flows) described in Section 5.1(k)) and (ii) an annual budget for the Credit Parties and their Subsidiaries, each in form and substance reasonably acceptable to the members including forecasts of the Lender Group.
income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2026, prepared on a quarterly basis from the Agreement Date through September 24, 2022, and prepared on an annual basis for each fiscal year thereafter (d) it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results and such differences may be material). The Lender Group Administrative Agent shall have received evidence satisfactory to them a certificate signed by an Authorized Signatory of the Borrowers certifying that all Necessary Authorizations described in clause (a) of the definition thereof are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default exists, after giving effect ongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents. At least five (5) days prior to the initial Advance hereunderdate of this Agreement, and the Lender Group Administrative Agent shall have received all documentation and information required by any Governmental Authority and requested in writing by any Lender at least ten (10) days prior to the Agreement Date under any applicable “know your customer” and Anti-Money Laundering Laws including the Patriot Act and, if any Borrower qualifies as a certificate of an Authorized Signatory of “legal entity customer” under the Administrative Borrower so stating.
(e) Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower. The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor all documentation and authorizations necessary to release all Mortgages granted to the Administrative Agent as secured party under the Existing Credit Agreement, and all such Mortgages shall have been duly filed in all appropriate jurisdictionsbeen, in such form as or shall substantially concurrent with the consummation hereof be, terminated (with record filings to be satisfactory to submitted for filing or recordation by the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of promptly after the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The --------------------------------------- obligations of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio 's pro rata share of the Revolving Loan Commitment;
(iii) The Security Agreement, Pledge Agreement (together with the original stock certificates of the Capital Stock pledged thereunder and related stock powers), Intellectual Property Security Agreements, Mortgage, Subordination Agreement, Subsidiary Guaranty, and Subsidiary Security Agreement, duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related parties thereto;
(iv) Original stock certificates evidencing Uniform Commercial Code financing statements signed by the issued Borrower and outstanding shares of capital stock pledged each Material Subsidiary, respectively, as debtor, and naming the Agent as secured party to be filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankAgent;
(v) The Set-Off Waiver Letter, duly executed Blocked Account Agreements required by Section 6.15LGE;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP , as corporate counsel to the Borrower and the Material Subsidiaries, regarding the Borrower, the Material Subsidiaries and the Loan Documents, (B) ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, P.A., local as general counsel to the Borrower Partiesand the Material Subsidiaries, regarding the Borrower, the Material Subsidiaries and the Loan Documents, and (C) bankruptcy counsel to the Borrower, regarding the Final Order and the Confirmation Order, in each case addressed to each Lender, the Lender GroupIssuing Bank and the Agent, dated the Agreement Date;
(xivii) The duly executed Request for Advance for the initial Advance of the Loans;
(xiiviii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008Date;
(xiiiix) A loan certificate signed by an Authorized Signatory of each the Borrower Partyin substantially the form of Exhibit J attached hereto, --------- including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Partythe Borrower, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation or Formation of such the Borrower Party certified to be true, complete and correct by the Secretary of State of for the State of Delaware, (B) a true, complete and correct copy of the By-Laws of the Borrower, (C) a true, complete and correct copy of the resolutions of the Borrower authorizing the borrowing hereunder and the execution, delivery and performance by the Borrower of the Loan Documents, and (D) certificates of good standing from each jurisdiction in which the Borrower is required to be registered to do business;
(x) A loan certificate from each Material Subsidiary signed by an Authorized Signatory of such Borrower Party’s incorporation or formationMaterial Subsidiary in substantially the form of Exhibit J attached hereto, including a --------- certificate of incumbency with respect to each Authorized Signatory of such Material Subsidiary, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation of such Material Subsidiary certified to be true, complete and correct by the Secretary of State for the jurisdiction of its incorporation, (B) a true, complete and correct copy of the By-Laws of such Borrower PartyMaterial Subsidiary, (C) a true, complete and correct copy of the resolutions of such Borrower Party Material Subsidiary authorizing the execution, delivery and performance by such Borrower Party of the each Loan Documents Document to which it is a party, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does Material Subsidiary is qualified to do business;
(xi) A duly executed General Release, releasing the Agent, the Issuing Bank and (E) copies the Lenders from all claims, liability and causes of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or action arising in connection with a disclosed planthe Debtor-in-Possession Credit Agreement prior to the Agreement Date;
(xii) providing A Collateral Access Agreement with respect to each leased premises of the Borrower listed on Schedule 5.11 hereto (except ------------- to the extent delivery of such Collateral Access Agreement is permitted to be made after the Agreement Date pursuant to Section 5.21 hereof);
(xiii) Audited financial statements for the grantBorrower for its 1998 fiscal year, issuance or sale of Equity Interests of such unaudited financial statements for the Borrower Partyfor the month ending August 31, 1999, and the Borrower's pro-forma financial statements, business plan and projections for the twelve month period following the Agreement Date on a quarterly basis;
(xiv) A Solvency Certificate executed by an Authorized Signatory Copies of certificates of insurance and the related insurance policies covering the assets of the Administrative Borrower regarding and otherwise meeting the solvency and financial condition requirements of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderSection 5.5 hereof;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement Copies of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Payany pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, ) against the assets of the Borrower Partiesor any Material Subsidiary;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxvi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixvii) Payment of all reasonable fees and expenses payable to the Administrative Agent, the Affiliates affiliates of the Administrative Agent, Agent and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, reasonable fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixviii) All such Such other documents and evidence as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Agent shall be satisfied with the Borrower's cash management system and shall have received evidence satisfactory duly executed Blocked Account Letters as required by Section 5.15, all as reasonably acceptable to them that the Agent;
(c) There shall have been no change in the business business, assets, management, operations or operations, financial condition or prospects of the Borrower Parties shall have occurred since February 2August 31, 20081999, which change has had or could be reasonably expected to change, in the judgment of the Agent, will have a Materially Adverse Effect, and the Lender Group ;
(d) The Agent shall have received evidence that the Tuning Patents and the License Agreements are in full force and effect and not the subject of any pending or threatened litigation (other than the Funai Litigation to the extent there has been no judgment, order or other decision entered in the Funai Litigation which is materially adverse to the Borrower, and to the extent there is no reasonable likelihood of the entry of such order, judgment or decision in the reasonable determination of the Agent) and the satisfactory completion of its due diligence regarding all other Collateral;
(e) The Agent shall have received evidence that the Court has entered the Final DIP Order and that all of the obligations of the Borrower under the Debtor-in-Possession Credit Agreement will be paid in full from the proceeds of the initial Advance;
(f) The Agent shall have received evidence that (i) the Court has entered the Confirmation Order, (ii) at least ten (10) days shall have elapsed since such entry of the Confirmation Order on the docket of the Court, with no appeal of the Confirmation Order having been timely filed, or if timely filed, with such appeal having been dismissed (unless the Majority Lenders agree to waive any of such requirements), and (iii) all other conditions to the confirmation and effectiveness of the Reorganization Plan shall have been satisfied;
(g) The Agent shall have received (i) evidence that all documentation evidencing the LGE Exit Facility has been executed and that the LGE Exit Facility has closed, and (ii) a certificate of an Authorized Signatory authorized signatory of LGE certifying that LGE has received the approval of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described 50 Korean Ministry of Finance and all other applicable governmental entities to provide such credit facility, in Section 5.1(k), each case in form and substance reasonably acceptable to the members of the Lender Group.Agent;
(dh) The Lender Group Agent shall have received evidence that the Restructured PIK Note and the New Debentures have been issued and all documents relating to the Restructured PIK Note and the New Debentures shall be in form and substance reasonably acceptable to the Agent;
(i) The Agent shall have received evidence that LGE owns at least ninety percent (90%) of the outstanding Capital Stock of the Borrower;
(j) The Agent shall have received evidence that (a) LGE has transferred to the Borrower all of LGE's right, title and interest in all of the Salomon Assets and the Credits, and (b) the principal amount of the Restructured PIK Note has been reduced by $5,733,870.83 for those Salomon Assets which are thereafter transferred by the Borrower back to LGE (as indicated on Schedule S- 1);
(k) The Agent shall have received the Borrower's plan to become "Year 2000" compliant as required by this Agreement, in form and substance reasonably acceptable to the Agent;
(l) The Agent shall have received evidence reasonably satisfactory to them it that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Agent and the Lenders shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.; and
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Borrower shall consent to or have received each of the followingdelivered, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP its Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guarantyDelaware, as applicable, hereunder, of a date no earlier than thirty (D30) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect days prior to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderEffective Date;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable duly executed original signatures to the members of the Lender Group.completed Borrowing Resolutions for Borrower;
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, payoff letters in form and substance satisfactory to Bank evidencing that at least $15,000,000 of the Lender Groupoutstanding principal under the Existing Notes will be paid in full in connection with the initial Advance, reflecting thatand evidence satisfactory to Bank that no more than $5,000,000 of the outstanding principal under the Existing Notes will be outstanding after the Effective Date;
(e) certified copies, among other thingsdated as of a recent date, of financing statement searches, as of Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Agreement DateLiens indicated in any such financing statements either constitute Permitted Liens or have been or, after giving effect to in connection with the borrowings hereunder on initial Advance, will be terminated or released;
(f) the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Perfection Certificate executed by Borrower;
(g) The Administrative Agent shall have a legal opinion of Borrower’s counsel dated as of the Effective Date together with the duly executed original signatures thereto;
(h) the duly executed original signatures to each Guaranty, together with the completed such other business Borrowing Resolutions for each Guarantor;
(i) the duly executed original signatures to each Guarantor Security Agreement;
(j) evidence satisfactory to Bank that the insurance policies required by Section 6.5 hereof are in full force and legal effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Bank; and
(k) payment of the fees and Bank Expenses then due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, as specified in its sole discretionSection 2.4 hereof.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditionsconditions on or before December 31, 2013:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative AgentLender Group:
(i) This Agreement duly executed Agreementby the Borrowers, the Guarantors, the Lenders, and the Administrative Agent;
(ii) A Any Revolving Loan Notes requested by any Lender duly executed Revolving Loan Note to by the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentBorrowers;
(iii) The Security Agreement duly executed by the Borrower Partieseach Credit Party, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the All other Security Agreement, together with stock powers or other appropriate instruments of transfer Documents duly executed in blankby each Credit Party party thereto;
(v) The A Controlled Account Agreement with respect to each deposit account set forth on Schedule 6.15 (other than an Excluded Account) maintained by any Credit Party at a depository institution, duly executed Blocked Account Agreements by such Credit Party, the Administrative Agent, and such depository institution, and evidence reasonably satisfactory to the Administrative Agent that the Credit Parties have established the cash management system required by Section 6.15;
(vi) The Fee Letter An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed by the Borrowerssuch Credit Party;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit legal opinions of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local counsel to the Borrower Credit Parties, and local counsel for each jurisdiction in which a Credit Party is organized (to the extent the foregoing opinions do not opine as to the law of such jurisdictions), in each case addressed to the Lender Group, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including without limitation the Senior Subordinated Note Indenture), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(xiviii) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiiiix) A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party Person is a party and plans and agreements (other than agreements entered into pursuant required to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partybe qualified to do business;
(xivx) A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower Parent regarding the solvency and financial condition of Parent and its Subsidiariesthe Credit Parties, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Credit Parties, in each case, meeting the requirements of Section 6.5;
(xviiixii) Pay-off UCC, PPSA, Lien, and Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent that there are not Liens upon the Collateral (other than Permitted Liens);
(xiii) Payoff letters, termination statements, canceled mortgages and the like (including, without limitation, cancellation of all existing letters of credit) required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against ) and the assets repayment of debt to be repaid on the Borrower PartiesAgreement Date;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxiv) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including, without limitation, through (1) the filing of UCC financing statements, and (2) delivery of all possessory Collateral to the Lender required to be delivered in accordance with the Security Documents;
(xxixv) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixvi) Each Third Party Agreement required by Section 6.10;
(xvii) A flow certificate signed by an Authorized Signatory of funds report duly executed by the Administrative Borrower which report shall include a statement Borrowers certifying that each of all sources and uses of funds on the Agreement Dateapplicable conditions set forth in Section 4.2 have been satisfied; and
(xxiiixviii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence completed their financial, collateral, regulatory, and legal due diligence of Credit Parties, and all credit investigations and background checks, and the results, form, and substance of each of the foregoing items shall be satisfactory to them Administrative Agent.
(c) The Administrative Agent shall be satisfied that no change in the business assetsbusiness, managementcondition (financial or otherwise), operations results of operations, liabilities (contingent or financial condition otherwise), or properties of the Borrower Parties Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since February 2June 29, 20082013, which change has had or could would be reasonably expected to have a Materially Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower Borrowers so stating.
(cd) The Lender Group Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k), each in form (ii) the unaudited balance sheet and substance reasonably acceptable to the members statement of income of the Lender GroupParent and its Restricted Subsidiaries for the fiscal year ended September 29, 2013 and the fiscal month ended on or about October 31, 2013, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2018, prepared on a month by month basis for the fiscal year ending September 27, 2014, and prepared on an annual basis for each fiscal year thereafter (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(de) The Lender Group Administrative Agent shall have received evidence satisfactory to them a certificate signed by an Authorized Signatory of the Borrowers certifying (i) that all Necessary Authorizations are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, after giving effect to the initial Advance hereundercorrect, and the Lender Group shall have received a certificate complete copies of an Authorized Signatory of the Administrative Borrower so statingall such Necessary Authorizations.
(ef) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor completed to its satisfaction all field exams and appraisals required by the Administrative Agent as secured party have been duly filed Agent, all of which must be in all appropriate jurisdictions, in such form as shall be and substance reasonably satisfactory to the Administrative Agent.
(fg) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, Administrative Agent which calculates the Borrowing Base as of the Agreement DateAugust 31, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)2013.
(gh) The Administrative Agent shall have completed such other business received all documentation and legal due diligence with respect information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than five (5) Business Days prior to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionAgreement Date.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation or of the Issuing Banks Bank to issue (or arrange for the issuance of) the initial a Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the followingfollowing (with sufficient copies for each of the Lenders), in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio loan certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryBorrower, in substantially the form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit L, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation or Formation incorporation of such Borrower Party the Borrower, certified to be true, complete and correct by the Secretary of State of Washington, and a true, complete and correct copy of the State by-laws of such Borrower Party’s incorporation or formationthe Borrower, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for each state in which the Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of the Borrower, authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of the Borrower;
(ii) duly executed Notes (to the extent requested by any Lenders) and duly executed counterparts of this Agreement;
(iii) duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank and appropriate acknowledgements by the pledged limited liability companies and pledged partnerships;
(iv) duly executed Security Agreement, together with proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement;
(v) the Subsidiary Guaranty;
(vi) the Subsidiary Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vii) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Subsidiary Security Agreement, covering the Collateral described in the Subsidiary Security Agreement;
(viii) completed requests for information, dated on or before the Agreement Date listing all effective financing statements filed in the jurisdictions referred to in clauses (iv) and (vii) above that name the Borrower or any Restricted Subsidiary as debtor, together with copies of such other financing statements;
(ix) evidence that all other recordings and filings of or with respect to each Security Document shall have been completed and that all other actions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Documents shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements) ;
(x) the Fee Letters;
(xi) copies of reasonably satisfactory insurance brokers' letters, binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting and covering the requirements of Section 5.5 hereof;
(xii) legal opinions of (A) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, general counsel to the Borrower, (B) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Washington counsel to the Borrower and (C) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, FCC counsel to the Borrower and its Subsidiaries; each as counsel to the Borrower and its Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent and its special counsel, and dated as of the Agreement Date;
(xiii) duly executed Request for Advance and (if applicable) Notice of Issuance, which Request for Advance shall include calculations demonstrating, as of the Agreement Date after giving effect to the borrowings hereunder on the Agreement Date, the Borrower's compliance with Section 2.1 and Section 7.8 hereof;
(xiv) duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could reasonably be expected to have a Materially Adverse Effect since December 31, 2003;
(xv) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents;
(xvi) a loan certificate from each Restricted Subsidiary of the Borrower, in substantially the form attached hereto as Exhibit M, with respect to corporations, Exhibit N, with respect to partnerships, and Exhibit O with respect to limited liability companies, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate or articles of incorporation of such Subsidiary or certificate of formation of such Subsidiary, as applicable, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws or partnership agreement, as applicable, of such Borrower PartySubsidiary, and (CD) a true, complete and correct copy of the resolutions of such Borrower Party Subsidiary authorizing the executionit to execute, delivery deliver and performance by such Borrower Party of perform the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party it is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;party; and
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence reasonably satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them it that all Necessary Authorizations Authorizations, including all necessary consents to the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which it is a party and by the Restricted Subsidiaries of the Loan Documents to which they are parties, have been obtained or made, are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory so stating.
(c) The Administrative Agent and the Lenders shall have received (i) copies of the unaudited financial statements of the Borrower and its Subsidiaries through the month most recently ended prior to the Agreement Date for which such statements are available (which shall reflect trailing 12-month EBITDA in amounts satisfactory to the Administrative Agent and the Syndication Agent), and (ii) an opening pro forma balance sheet of the Borrower so statingand its Subsidiaries, as of the last day of the month most recently ended at least 30 days prior to the Agreement Date, giving effect to the initial funding of the Loans hereunder and the consummation of the other elements of the transactions contemplated hereby, together with seven-year projected financial statements of the Borrower and its Subsidiaries (consisting of balance sheets and statements of income and cash flows, prepared by the Borrower), on a quarterly basis through the first four complete fiscal quarters after the Agreement Date and thereafter on an annual basis, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Syndication Agent.
(d) The Lenders, the Administrative Agent, and Shearman & Sterling LLP, special counsel to the Administrative Agent, shall receive payment of all fees and expenses due and payable on the Agreement Date in respect of the transactions contemplated hereby.
(e) The Administrative Agent and the Lenders shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be evidence reasonably satisfactory to them that, after funding the Administrative Agentinitial Advance of the Loans, the Borrower shall have no outstanding Indebtedness for Money Borrowed other than Permitted Debt.
(f) The Administrative Agent and the Syndication Agent shall have received a Borrowing Base Certificatereasonably satisfactory evidence that the Loans have been rated "B-" or higher by S&P and "B2" or higher by ▇▇▇▇▇'▇, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (each case with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)stable or positive outlook.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to received reasonably satisfactory evidence of the Borrowers payment in full of the Existing Loan Agreement and the results thereof shall be acceptable to the Administrative Agent, termination and release of all Liens and guaranties in its sole discretionconnection therewith.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior or contemporaneous fulfillment of each of the following conditions:
(a) The Administrative Agent and the Lenders shall have received each of the following, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent:
(i) This this Agreement duly executed Agreementexecuted;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentNotes;
(iii) The Security Agreement duly executed by the Borrower PartiesBorrower's Security Agreement, together with duly executed appropriate Uniform Commercial Code financing statements related theretostatement forms;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the duly executed Parent Security Agreement, together with duly executed appropriate Uniform Commercial Code financing statement forms;
(v) duly executed Parent Pledge Agreement, together with appropriate stock certificates and stock powers or other appropriate instruments of transfer executed in blank;
(vvi) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the BorrowersParent Guaranty;
(vii) The duly executed Post-Closing AgreementAffiliate Security Agreement of each Affiliate Guarantor (other than Telecom Resources, Inc.) existing as of the Agreement Date, together with duly executed appropriate Uniform Commercial Code financing statement forms;
(viii) A satisfactory field audit duly executed Affiliate Guaranty of all Accounts and Inventoryeach Affiliate Guarantor (other than Telecom Resources, and completion Inc.) existing as of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentAgreement Date;
(ix) The legal opinion the loan certificate of King & Spalding LLPthe Borrower dated as of the Agreement Date, counsel in substantially the form attached hereto as EXHIBIT M, including a certificate of incumbency with respect to each Authorized Signatory of Borrower, together with the following items: (A) a true, complete and correct copy of the Articles of Incorporation and By-laws of the Borrower as in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation, principal place of business and location of books and records of the Borrower (C) a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Borrower Parties, addressed to stock of the Lender GroupBorrower;
(x) The legal opinion the loan certificate of the Parent dated as of the Agreement Date, in substantially the form attached hereto as EXHIBIT N, including a certificate of incumbency with respect to each Authorized Signatory of the Parent, together with the following items: (Aa) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP a true, complete and correct copy of the Articles of Incorporation and By-laws of the Parent as in effect on the Agreement Date, (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇certificates of good standing for the Parent issued by the Secretary of State or similar state official for the state of incorporation, P.A.principal place of business and location of books and records of the Borrower of the Parent (C) a true, local counsel complete and correct copy of the corporate resolutions of the Parent authorizing the Parent to execute, deliver and perform this Agreement and the other Loan Documents, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Borrower Parties, addressed to stock of the Lender GroupParent;
(xi) The duly executed Request for Advance for the initial Advance loan certificate of each Affiliate Guarantor (other than Telecom Resources, Inc.) and the Parent existing as of the Loans;
(xii) A duly executed Borrowing Base Certificate Agreement Date dated as of the Agreement Date and calculated Date, in substantially the form attached hereto as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyEXHIBIT O, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the Articles of Incorporation and By-Laws laws of such Borrower PartyAffiliate Guarantor as in effect on the Agreement Date, (B) certificates of good standing for such Affiliate Guarantor issued by the Secretary of State of similar state official for the state of incorporation, principal place of business and location of books and records of such Affiliate Guarantor (C) a true, complete and correct copy of the corporate resolutions of such Borrower Party Affiliate Guarantor authorizing such Affiliate Guarantor to execute, deliver and perform this Agreement and the executionother Loan Documents, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a true, complete and correct copy of good standing from each jurisdiction any shareholders' agreements or voting trust agreements in which such Borrower Party does business, and (E) copies of all agreements among effect with respect to the shareholders stock of such Borrower Party Affiliate Guarantor;
(xii) legal opinion of Blackwell, Sanders, ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to which such Borrower Party is a party the Borrower, the Parent and plans their respective Subsidiaries addressed to each Lender and agreements the Administrative Agent and dated as of the Agreement Date;
(other than agreements entered into pursuant to or in connection with a disclosed planxiii) providing duly executed Certificate of Financial Condition for the grant, issuance or sale of Equity Interests of such Borrower Partyon a consolidated basis;
(xiv) A Solvency Certificate duly executed by an Authorized Signatory pay-off letter of Canadian Imperial Bank of Commerce dated as of the Administrative Borrower regarding Agreement Date in connection with the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence termination of the initial Advance and the issuance of the initial Letter of Credit hereunder;CIBC Facility; and
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Lenders shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or or, to the knowledge of the Borrower, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent and the Lenders shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (Advanced Communications Group Inc/De/)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower’s Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, Delaware as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivc) A Solvency Certificate duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xvd) Parent and its Subsidiaries certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixe) Lien search results the Perfection Certificate(s) of Borrower and Guarantor, together with respect to the Borrower Parties from all appropriate jurisdictions and filing officesduly executed original signatures thereto;
(xxf) Evidence satisfactory to the Administrative Agent confirm that the Liens granted pursuant to bailee waivers in favor of Bank for the Security Documents will be first priority perfected Liens on IBM foundry in Burlington, Vermont by the Collateral (subject only to Permitted Liens)respective landlord thereof, is still in full force and effect;
(xxig) Payment of all fees and expenses payable duly executed original signatures to the Administrative Agent, the Affiliates of the Administrative Agent, Guaranty and the Lenders in connection with the execution and delivery of this Security Agreement, including, without limitation, fees and expenses of counsel together with duly executed original signatures to the Administrative Agentcompleted Borrowing Resolutions for Guarantor;
(xxiih) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group endorsements in favor of Bank;
(i) Borrower shall have received a certificate of an Authorized Signatory entered into the EXIM Loan and shall have delivered the EXIM Loan Agreement and all other documents executed in connection therewith to Bank; and
(j) payment of the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.4 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Ramtron International Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank's obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative AgentBank, such documents, and evidence of completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(ia) This Borrower shall have delivered duly executed Agreement;
(ii) A duly executed Revolving Loan Note original signatures to the order of each Lender requesting Loan Documents to which it is a promissory note in party, including this Agreement, the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the IP Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed PostCross-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and InventoryGuaranty, and completion of satisfactory appraisals of all Inventoryone or more Control Agreements, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of Borrower, relative to all Collateral Accounts maintained by such Borrower Party, together with appropriate attachments which any affiliate of Bank;
(b) Borrower shall include, without limitation, the following: (A) have delivered its Operating Documents and a copy good standing certificate of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) Delaware as of a true, complete and correct copy of date prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party Effective Date satisfactory to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyBank;
(xivc) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xvd) Parent and its Subsidiaries Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixe) Lien search results with respect to Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate executed by Borrower;
(xxf) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received delivered evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate endorsements in favor of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Bank;
(g) The Administrative Agent Pursuant to the second sentence of Section 5.2A below, Borrower shall have completed delivered to Bank evidence (satisfactory to Bank in its good faith business judgment) of the satisfaction of all such other business and legal due diligence with respect obligations relative to the Borrowers Delaware Biolife Judgment and the results thereof California Biolife Judgment; and
(h) Borrower shall be acceptable to have paid the Administrative Agent, fees and Bank Expenses then due as specified in its sole discretionSection 2.4 hereof.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s agreement to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation, subject to the condition precedent that Bank shall have received, in form and substance reasonably satisfactory to Bank, the Administrative Agent and completed by auditors and appraisers selected by following:
(a) duly executed original signatures to the Administrative AgentLoan Documents to which each Borrower is a party;
(ixb) The duly executed original signatures to the Guaranty;
(c) duly executed original signatures to the completed Borrowing Certificates for Borrowers, plus, if applicable, all exhibits thereto;
(d) duly executed original signatures to the Guarantor Certificates for Guarantors, plus, if applicable, all exhibits thereto;
(e) good standing certificate/certificates of foreign qualification from Borrowers, other than EMEA and Guarantors as set forth more specifically on the closing checklist delivered to Borrowers in connection with this Agreement, dated no later than 30 days prior to the Effective Date.
(f) the Perfection Certificates executed by Borrowers;
(g) a legal opinion of King & Spalding LLP, from counsel to the Borrower PartiesUS Borrowers and Guarantors, addressed in a form satisfactory to the Lender GroupBank in all respects;
(xh) The legal opinion Reaffirmations of existing subordination agreements with holders of Subordinated Debt in form and substance satisfactory to Bank in all respects;
(Ai) ▇A Subordination Agreement, duly executed by ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Charter and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.Bank in all respects;
(dj) The Lender Group shall have received evidence satisfactory to them Bank that all Necessary Authorizations the insurance policies required by Section 6.4 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing loss payable and/or additional insured clauses or threatened reversal or cancellation, that no endorsements in favor of Bank; and
(k) such other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunderdocuments, and the Lender Group shall have received a certificate completion of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other thingsmatters, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Bank may reasonably deem necessary or appropriate.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Global Telecom & Technology, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each Receipt by Lender of the followingfully executed Advance Request;
(b) [Intentionally Omitted];
(c) [Intentionally Omitted];
(d) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note, the Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note and in form proper for recordation, as may be necessary in the amount opinion of such Lender’s Revolving Commitment Ratio of Lender to perfect the Revolving Loan Commitment;
(iii) The Security Agreement duly executed Liens created by the Borrower Partiesapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing and the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit payment of all Accounts taxes, fees and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or charges payable in connection with a disclosed plan) providing for the grantsuch execution, issuance or sale of Equity Interests of such Borrower Partydelivery, recording and filing;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that receipt by Lender of the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor first installment of Variable Facility Fee and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory entire Discount payable by Borrower pursuant to the Administrative Agent.Section 1.04;
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Receipt by Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect Initial Origination Fee pursuant to the borrowings hereunder on the Agreement Date Section 10.03(a) and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capitalInitial Due Diligence Fee pursuant to Section 10.04(a).; and
(g) The Administrative Agent shall have completed such other business and legal due diligence Receipt by Lender of a "non-consolidation" opinion stating that the Borrower will not be substantially consolidated with respect to the Borrowers and Guarantor in the results thereof shall be acceptable to event of a bankruptcy of the Administrative Agent, in its sole discretionGuarantor.
Appears in 1 contract
Sources: Master Credit Facility Agreement (Bre Properties Inc /Md/)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Borrower under this Agreement is subject to the prior fulfillment (or waiver in accordance with Section 14.8) of each of the following conditions:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by from an Authorized Signatory Officer of each Borrower Party, including a certificate of incumbency with respect attesting to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the Borrower’s execution and delivery of this Agreement, includingthe Note and the other Loan Documents, without limitationif any, to which Borrower is a party.
(b) Lender shall have received a duly executed Note from Borrower.
(c) All other documents and legal matters relating to the transactions contemplated by this Agreement shall have been delivered or executed or recorded, as applicable, and shall be in form and substance satisfactory to Lender and its counsel.
(d) Lender shall have received satisfactory evidence of the entry by the Bankruptcy Court of the Interim Order, which Interim Order (i) shall have been entered upon an application or motion of Borrower satisfactory in form and substance to Lender, on such prior notice to such parties as may in each case be satisfactory to Lender, (ii) shall be in form and substance satisfactory to Lender, (iii) shall be in full force and effect, and (iv) shall not have been vacated, stayed, reversed, modified or amended in any respect; and, if the Interim Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the performance by Borrower of any of its respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to herein shall be the subject of a presently effective stay pending appeal.
(e) Borrower shall have assumed the Strategic Alliance Agreement and shall have obtained an order from the Bankruptcy Court approving the assumption of, and any modifications to, the Strategic Alliance Agreement in form and substance satisfactory to Lender.
(f) Prior to or concurrently with the Initial Advance, Borrower shall have paid to Lender the then unpaid balance of all accrued and unpaid fees due under and pursuant to this Agreement and the fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower Lender as to which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedinvoices have been issued.
(bg) The All corporate and judicial proceedings and all instruments and agreements in connection with the transactions among Borrower and Lender Group contemplated by this Agreement shall have received evidence be satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance to Lender, and Lender shall have received all information and copies of all documents and papers, including records of corporate and judicial proceedings, which Lender may have reasonably acceptable requested in connection therewith, such documents and papers where appropriate to the members of the Lender Groupbe certified by proper corporate, governmental or judicial authorities.
(dh) The Borrower shall have granted Lender Group access to and the right to inspect all reports, audits and other internal information of Borrower relating to environmental matters, and any third party verification of certain matters relating to compliance with Environmental Laws reasonably requested by Lender, and Lender shall be reasonably satisfied that Borrower are in compliance in all material respects with all applicable Environmental Laws and Environmental Permits and Borrower has made adequate provision for the costs of maintaining such compliance.
(i) Lender shall have received evidence UCC and other customary searches (including tax liens and judgments) conducted in the jurisdictions in which Borrower conducts business (dated as of a date reasonably satisfactory to them that all Necessary Authorizations are in full force Lender), reflecting the absence of Liens and effect and are not subject to any pending encumbrances on the assets of Borrower other than Liens granted or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to permitted under the initial Advance hereunderExisting Agreements, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingsuch other Liens as may be reasonably satisfactory to Lender.
(ej) The Administrative Agent Borrower shall have received confirmation that furnished to Lender the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base CertificateBudget, in form and substance satisfactory acceptable to Lender in accordance with Section 6.9 of this Agreement, and such Budget shall have been prepared in good faith based upon assumptions which Borrower believes to be reasonable assumptions. To the Lender Groupknowledge of Borrower, reflecting that, among other things, as (i) the Budget sets forth all potential expenses of Borrower in connection with the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date Case and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid ii) no facts exist that (individually or in the ordinary course of business and without acceleration of sales and without deterioration aggregate) would be reasonably expected to result in working capital)any material change in the Budget.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for with a Foreign Issuer the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the other members of the Lender Group:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s 's Revolving Commitment Ratio of the Revolving Loan CommitmentCommitments;
(iii) The Security Agreement Agreement, duly executed by the each Borrower Parties, together with Uniform Commercial Code financing statements related theretoParty;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the The Intellectual Property Security Agreement, together with stock powers or other appropriate instruments of transfer duly executed in blankby each Borrower Party;
(v) The Pledge Agreement First Amendment, duly executed Blocked Account Agreements required by Section 6.15certain Borrower Parties;
(vi) The Fee Syndication Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Amendments to the Mortgages delivered by the applicable Borrower Parties in connection with the Existing Credit Agreement, together with the delivery of: (x) endorsements to title policies issued in connection with the Existing Credit Agreement, as requested by the Administrative Agent and (y) local counsel opinions with respect to each Mortgage amendment;
(viii) A satisfactory field audit of all Accounts Duly executed landlord waiver agreements and Inventorybailee waiver agreements, and completion of satisfactory appraisals of all Inventoryas applicable, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by extent not previously delivered in connection with the Administrative AgentExisting Credit Agreement, with respect to each Borrower Party's leased premises or goods in the possession of bailees, except as set forth on Schedule 4.1(a)(viii);
(ix) A duly executed Licensor Consent Agreement with respect to each License Agreement, to the extent not previously delivered in connection with the Existing Credit Agreement;
(x) Duly executed Account Control Agreements to the extent not previously delivered in connection with the Existing Credit Agreement;
(xi) Duly executed Securities Account Control Agreements;
(xii) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xixiii) The duly executed Request for Advance for the initial Advance of the Revolving Loans;
(xiixiv) A All Lien Acknowledgment Agreements duly executed Borrowing Base Certificate dated as of by the Agreement Date and calculated as of July 5applicable Approved Freight Handler, 2008to the extent not previously delivered in connection with the Existing Credit Agreement;
(xiiixv) A With respect to each Borrower Party, a loan certificate signed by an Authorized Signatory of each such Borrower PartyParty in substantially the form of Exhibit L, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate or articles of Incorporation incorporation, certificate of limited partnership or Formation certificate of organization of such Borrower Party certified to be true, complete and correct by the Secretary of State of or applicable officer for the State of such Borrower Party’s 's incorporation or formationorganization, (B) a true, complete and correct copy of the By-Laws bylaws, partnership agreement or limited liability company or operating agreement of such Borrower Party, (C) a true, complete and correct copy of the resolutions of the such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and and, with respect to the Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does businessbusiness except to the extent the failure to be so qualified would not reasonably be expected to have a Materially Adverse Effect, and (E) copies of all agreements among the shareholders employment contracts for senior management level employees of such Borrower Party Party, and (F) copies of all shareholders or share purchase agreements, as applicable, relating to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xivxvi) A Solvency Certificate executed With respect to US Ben ▇▇▇▇▇▇▇ Holdco, a loan certificate signed by an Authorized Signatory of US Ben ▇▇▇▇▇▇▇ Holdco in substantially the Administrative Borrower regarding the solvency and financial condition form of Parent and its SubsidiariesExhibit L, including a certificate of incumbency with respect to each Authorized Signatory of US Ben ▇▇▇▇▇▇▇ Holdco, together with appropriate attachments which shall include, without limitation, the following: (A) a pro forma balance sheet giving effect copy of the charter documents of US Ben ▇▇▇▇▇▇▇ Holdco, certified to be true, complete and correct by the Secretary of State or applicable officer for the State of US Ben ▇▇▇▇▇▇▇ Holdco's incorporation or organization, (B) a true, complete and correct copy of the bylaws, partnership agreement or limited liability company or operating agreement of US Ben ▇▇▇▇▇▇▇ Holdco, (C) certificates of good standing from each jurisdiction in which US Ben ▇▇▇▇▇▇▇ Holdco does business except to the incurrence extent the failure to be so qualified would not reasonably be expected to have a Materially Adverse Effect; (D) copies of employment contracts for senior management level employees of US Ben ▇▇▇▇▇▇▇ Holdco, and (E) copies of all shareholders or share purchase agreements, as applicable, relating to the initial Advance and the issuance Equity Interests of the initial Letter of Credit hereunderUS Ben ▇▇▇▇▇▇▇ Holdco;
(xvxvii) A certificate of the Secretary or an Assistant Secretary of the Parent certifying that attached thereto is a true and its Subsidiaries (a) 2008 business plan including its 12 month income statementcomplete copy of resolutions adopted by the Board of Directors of the Parent authorizing the execution, balance sheet, statement delivery and performance of cash flows the Acquisition Documents and availability forecast and (b) monthly projections, including income statement, balance sheet and statement the consummation of cash flows, through January 31, 2009the transactions provided for therein;
(xvixviii) Consolidated (A) Projected consolidated financial statements of for the Parent and its Subsidiaries for the eight2005 fiscal year, on a month-by-month transition period ended February 2basis, 2008 for each fiscal year thereafter until the Maturity Date on an annual basis and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the (B) monthly financial statements for the eight-Parent and its Subsidiaries and the Target for the fiscal month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingMay 2004;
(xviixix) Certificates Copies of certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xixxx) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing officesoffices satisfactory to the Administrative Agent;
(xxxxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixxii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates affiliates of the Administrative Agent, Agent and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties No event shall have occurred since February 2May 30, 20082003, which change has had or could be which, in the reasonable business judgment of the Administrative Agent and the other members of the Lender Group, is reasonably expected likely to have a Materially Adverse Effect, ; and the Lender Group no event shall have received a certificate of an Authorized Signatory occurred since June 30, 2003, which, in the reasonable business judgment of the Administrative Borrower so statingAgent and the other members of the Lender Group, is reasonably likely to have a materially adverse effect upon the business, assets, liabilities, prospects, condition (financial or otherwise) or the results of operation of the Target and its Subsidiaries taken as a whole.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Administrative Agent shall have received evidence reasonably satisfactory to them it that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Administrative Agent and the other members of the Lender Group shall have received a certificate of an Authorized Signatory so stating.
(d) The Administrative Agent shall have received a flow of funds report in form and substance reasonably acceptable to it dated as of the Agreement Date and executed by the Administrative Borrower so statingwhich report shall include a statement of all sources and uses of funds on the Agreement Date.
(e) The Administrative Agent shall have received confirmation that received, as applicable, and reviewed to its satisfaction the original Uniform Commercial Code financing statements naming Borrowers' accounting and computer systems, pension agreements and obligations, union contracts negotiated in the respective Borrower Parties as debtor preceding twelve (12) month period and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentcustomer profitability reports.
(f) The Administrative Agent shall have received a Borrowing Base Certificateand reviewed to its satisfaction, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)all License Agreements.
(g) The Administrative Agent shall have completed such other business reviewed to its satisfaction the structure, terms and legal due diligence with respect to conditions of the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionAcquisition.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender under this Agreement (including to make the initial Advance hereunderadvance of the Loan to the Loan Disbursement Account under the Credit Facility) are subject to and conditional upon the prior satisfaction of the following conditions precedent:
(1) each of the Craft C&D Contracts shall have been executed and delivered by each of Craft and the Construction Receiver and be in full force and effect;
(2) the Loan Disbursement Account shall have been established;
(3) the TF Cost Overrun Guarantee shall have been executed and delivered by Terra Firma to the Construction Receiver, Craft and the Administrative Agent on behalf of the Syndicate Lenders in form and substance satisfactory to the Lender and be in full force and effect;
(4) the Syndicate Loan Agreement shall have been executed and delivered to the Construction Receiver in form and substance satisfactory to the Lender and be in full force and effect;
(5) each of the Purchaser Package Approval Order, the Settlement Approval Order, the Beach Sales Process Order, and the obligation Receivership Administration Order shall have been granted, the “Effective Date” (as defined in the Settlement Approval Order) shall have occurred and each of such orders shall be final and non- appealable and if any such orders are appealed, such appeal is withdrawn or determined in favour of the Issuing Banks to issue Construction Receiver;
(6) none of the Receivership Order, the Purchaser Package Approval Order, the Settlement Approval Order, the Beach Sales Process Order or arrange for the issuance of) the initial Letter Receivership Administration Order or any provision of Credit hereunderany of them shall have been stayed, are subject to varied or vacated without the prior fulfillment of each written consent of the following conditions:Lender and the Construction Receiver and there shall not be any pending motion to do so;
(a7) The Administrative Agent Tarion and Travelers shall have received each provided the Tarion/Travelers Acknowledgements, or the Court shall have made an Order of the followinglike effect, in form and substance satisfactory to the Administrative Agent:Lender.
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note 8) the Standard Form Sales Agreement to be entered into with each Curzon Purchaser and the order of disclosure statement required to be delivered to each Lender requesting a promissory note in Curzon Purchaser under the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed Condominium Act shall have been approved by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent Court pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by Purchaser Package Approval Order and the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guarantySettlement Approval Order, as applicable, hereunder, (D) certificates of good standing from each jurisdiction and the Court shall have confirmed the last date upon which an Opt-In Leslieville Purchaser may rescind its New APS to purchase a Unit in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into Leslieville Project pursuant to or in connection with a disclosed planSection 73(2) providing for of the grant, issuance or sale of Equity Interests of such Borrower PartyCondominium Act;
(xiv9) A Solvency Certificate executed by an Authorized Signatory the Independent Cost Consultant shall have been appointed to act on behalf of the Administrative Borrower regarding Construction Receiver throughout the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence duration of the initial Advance and the issuance of the initial Letter of Credit hereunderLeslieville Project;
(xv10) Parent the Initial Development Budget shall have been approved by the Independent Cost Consultant, the Syndicate Lenders, the Lender and its Subsidiaries Terra Firma;
(11) Terra Firma shall have funded to the Construction Receiver the (a) 2008 business plan including its 12 month income statementcost of all Latent Defects discovered by Craft, balance sheetthe Construction Receiver or any other Person relating to the Leslieville Project as of the date the other conditions precedent set out in this Section 3.01 have been satisfied, statement of cash flows and availability forecast and (b) monthly projectionsamount of all “Development Cost Overruns” (as defined in the Craft Development Contract) requested by Craft as of the date the other conditions precedent set out in this Section 3.01 have been satisfied, including income statementin each case as required under the TF Cost Overrun Guarantee, balance sheet and statement for certainty, inclusive of cash flows, through January 31, 2009HST;
(xvi12) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingTerra Firma shall not be Insolvent;
(xvii13) Certificates no Cost Overrun discovered after the date of insurance and loss payable endorsements with respect to this Agreement shall be existing which has not been funded by Terra Firma, Craft or the Borrower Parties, in each case, meeting Syndicate Lenders under the requirements of Section 6.5TF Cost Overrun Guarantee;
(xviii14) Pay-off lettersno Default or Event of Default will have occurred and be continuing on the date of advance of the Loans, termination statements, canceled mortgages and or would result from making the like required by requested advance;
(15) the Administrative Agent in connection with Lender shall have received a subsearch from Lender’s Counsel confirming that no Encumbrances have been registered on title to the removal of any Liens (Leslieville Project Lands other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateEncumbrances; and
(xxiii16) All such other documents as the Administrative Agent may reasonably requesteach of UC Riverdale, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group UC Leslieville and UC Beach shall have received evidence satisfactory to them that no change in been adjudged bankrupt under the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Bankruptcy and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
Insolvency Act (c) The Lender Group shall have received the financial statements described in Section 5.1(kCanada), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them provided that all Necessary Authorizations are documents delivered pursuant to this Section 3.01 must continue to be in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereundereffect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender GroupLenders, reflecting that, among other things, as of acting reasonably. If the Agreement conditions set forth in Sections 3.01 and 3.05 are not satisfied (or waived by the parties) on or before the CP Outside Date, after giving effect to the borrowings hereunder on the then this Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionautomatically terminated and of no force and effect.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Banks to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentBanks:
(i) This duly executed AgreementNotes;
(ii) A duly executed Revolving Loan Note the opinion of counsel to the order of Borrower addressed to each Lender requesting a promissory note Bank and the Administrative Agent substantially in the amount form of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentExhibit C attached hereto;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xiiiv) A duly executed Borrowing Base Certificate dated as the loan certificate of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyBorrower, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Partythe Borrower, which shall be in substantially the form attached hereto as Exhibit D hereto, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of the Certificate or Articles of Incorporation or Formation of such Borrower Party the Borrower, certified to be true, complete and correct by the appropriate Secretary of State of the State of such Borrower Party’s incorporation or formationState, (B) a true, complete and correct copy of the By-Laws of such Borrower Partythe Borrower, as in effect on the date hereof, (C) a true, complete and correct copy of the resolutions of such the Borrower Party authorizing it to execute, deliver and perform this Agreement and the execution, delivery and performance by such Borrower Party of the other Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunderto which it is party, (D) certificates of good standing from for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower and for each jurisdiction state in which such the Borrower Party does is qualified to do business, and (E) copies a true, complete and correct copy of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to any shareholders' agreement or voting trust agreement in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the stock of the Borrower, and (F) a true, complete and correct description of all Liens of record on the Agreement Date;
(v) audited financial statements for the eight-month transition period Borrower for the calendar year ended February 2December 31, 20081994, audited by independent public accountants of recognized national standingand the unaudited financial statements for the Borrower for the quarter ended September 30, 1995;
(xviivi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required receipt by the Administrative Agent and the Banks of all appropriate fees to be paid to them by the Borrower on or prior to the Agreement Date;
(vii) any required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents, each of which shall be in connection with form and substance satisfactory to the removal Administrative Agent and the Banks;
(viii) pay off letters and duly executed UCC-3 releases and other forms of satisfaction terminating any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateNegative Pledge Properties; and
(xxiiiix) All all such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them it that no change in the business assetsall material Necessary Authorizations, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable including all necessary consents to the members closing of the Lender Group.
(d) The Lender Group shall this Agreement, have received evidence satisfactory to them that all Necessary Authorizations been obtained or made, are in full force and effect and are not subject to any pending or or, to the knowledge of the Borrower, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Administrative Agent Borrower shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and certify to the Administrative Agent as secured party have been duly filed and the Banks that each of the representations and warranties in Article 4 hereof are true and correct in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, material respects as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)that no Default then exists or is continuing.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (Irt Property Co)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower’s Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, Delaware as of a date no earlier than sixty (B60) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivc) A Solvency Certificate duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xvd) Parent duly executed Control Agreements for any domestic accounts maintained outside Bank;
(e) the duly executed EX-IM Loan Documents;
(f) a public announcement from the United States Food and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement Drug Administration regarding recalling of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31AED devices related to Corrective AED Field Action which was announced on November 13, 2009;
(xvig) Consolidated financial statements certified copies, dated as of Parent and its Subsidiaries for the eight-month transition period ended February 2a recent date, 2008 and the fiscal year-to-date period ended July 5of financing statement searches, 2008as Bank shall request, accompanied by written evidence (including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixh) Lien search results the Perfection Certificate of Borrower, together with respect to the Borrower Parties from all appropriate jurisdictions and filing officesduly executed original signatures thereto;
(xxi) Evidence satisfactory to landlord’s consents in favor of Bank, together with the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)duly executed original signature thereto, for Borrower’s Bothell, Washington and Deerfield, Wisconsin facilities;
(xxij) Payment of bailee agreements from all fees and expenses payable to locations where Borrower stores Eligible Domestic Inventory or EX-IM Eligible Foreign Inventory, if any, in the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agentform attached hereto as Exhibit F;
(xxiik) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them Bank that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in insurance policies required by Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations 6.7 hereof are in full force and effect and are not subject to any pending effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate endorsements in favor of an Authorized Signatory Bank; and
(l) payment of the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.4 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditionsconditions on or before April 13, 2017:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative AgentLender Group:
(i) This Agreement duly executed Agreementby the Borrower, the Guarantors, the Lenders, and the Administrative Agent;
(ii) A Any Revolving Loan Notes requested by any Lender duly executed Revolving Loan Note to by the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentBorrower;
(iii) The ABL/Term Intercreditor Agreement duly executed by the Borrower, the Administrative Agent, and the Term Loan Facility Administrative Agent;
(iv) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankeach Credit Party;
(v) The An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed Blocked Account Agreements required by Section 6.15such Credit Party;
(vi) The Fee Letter A Borrowing Base Certificate duly executed by the BorrowersBorrower;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit legal opinions of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ , Halter & ▇▇▇▇▇▇▇▇ LLP, counsel to the Credit Parties, and ▇▇ LLP and (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Credit Parties, in each case addressed to the Lender Group, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including, without limitation, the Term Loan Facility Credit Agreement with respect to the Term Loan Facility), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(xiviii) The duly executed Request for Advance for the initial Advance of the Loans, if any, with disbursement instructions attached thereto;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiiiix) A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrower, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Material Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party Person is a party and plans and agreements (other than agreements entered into pursuant required to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Partybe qualified to do business;
(xivx) A Solvency Certificate certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderParties;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Credit Parties, in each case, meeting the requirements of Section 6.56.8;
(xviiixii) Pay-off lettersUCC, termination statementsLien, canceled mortgages and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Lienspermitted under Section 7.2);
(xxixiii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixiv) A flow certificate signed by an Authorized Signatory of funds report the Borrower certifying that each of the applicable conditions set forth in Section 4.2 have been satisfied;
(xv) A payoff letter, in form and substance reasonably satisfactory to the Administrative Agent, duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds each lender holding Indebtedness to be refinanced on the Agreement Date, together with all releases, terminations, or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(xvi) Evidence that the Borrower has obtained the Term Loan Facility in an aggregate principal amount of at least $250,000,000 on terms and conditions reasonably acceptable to the Left Lead Arranger; and
(xxiiixvii) All such (A) certified final copies of the Term Loan Facility Credit Agreement and the other documents as primary Term Loan Facility Documentation and (B) evidence that all of the Administrative Agent may reasonably requestconditions precedent to the initial borrowing under the Term Loan Facility Documentation (in each case, certified by an appropriate governmental official other than the effectiveness of this Agreement) shall be satisfied or an Authorized Signatory if so requestedwaived substantially concurrently with the effectiveness of this Agreement.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them be satisfied that no change in the business assetsbusiness, managementcondition (financial or otherwise), operations results of operations, liabilities (contingent or financial condition otherwise), or properties of the Borrower Parties and its Restricted Subsidiaries (taken as a whole) shall have occurred since February 2December 31, 20082016, which change has had or could would be reasonably expected to have a Materially Material Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k5.4(c), each in form (ii) the consolidated financial statements of the Borrower and substance reasonably acceptable its Subsidiaries for the most recent fiscal quarter ending at least 45 days prior to the members Agreement Date, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the Lender Groupincome statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending December 31, 2021, prepared on an annual basis for each fiscal year (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(d) The Lender Group Administrative Agent shall have received evidence satisfactory to them a certificate signed by an Authorized Signatory of the Borrower certifying (i) that all Necessary Authorizations are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, after giving effect to the initial Advance hereundercorrect, and the Lender Group shall have received a certificate complete copies of an Authorized Signatory of the Administrative Borrower so statingall such Necessary Authorizations.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor all documentation and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than five (5) Business Days prior to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Installed Building Products, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Lender to undertake the Revolving Loan Commitments and to make fund the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Lender in its sole discretion, of each of the following conditions:
(a) The Administrative Agent representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the funding, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date);
(b) No Event of Default shall have occurred and be continuing on the date of the funding nor shall such an Event of Default immediately result from the making of the funding;
(c) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the making of such funding shall have been issued and remain in force by any governmental authority against Borrower, Guarantor or Lender or any of their Affiliates;
(d) Lender shall have received each of the followingLoan Documents, duly executed, and each such document shall be in form full force and substance effect;
(e) Borrower shall have provided evidence satisfactory to Lender that its lien in the Administrative Agent:Collateral is a lien of first-priority;
(f) Borrower shall have delivered to Lender or its Custodian, if Lender so directs Borrower, each Note File;
(g) Lender shall have received a certificate from the manager or members of Borrower, and from the board of directors of Guarantor, as required, attesting to the resolutions of Borrower’s members and managers or Guarantor’s board of directord authorizing its execution and delivery of all of the documents and of this Agreement and the other Loan Documents to which Borrower or such Guarantor is a party and authorizing specific officers, managers or members, as applicable, of Borrower or Guarantor to execute same;
(h) Lender shall have received copies of Borrower’s, and Guarantor’s, formation documents and any operating agreements, member or managers agreements, as applicable, as amended, modified, or supplemented to the Closing Date, certified as being true, correct and complete by the authorized officers, members or managers, as applicable, of Borrower and Guarantor;
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including shall have received a certificate of incumbency limited liablity company status or corporate status, as applicable, with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct Guarantor by the Secretary of State of the State its state of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of which certificate shall indicate that such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of entity is in good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviij) Certificates Borrower shall have confirmed to Lender that each property encumbered by a Note Mortgage and securing an Eligible Note is insured by a policy of casualty insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.56.12 hereof;
(xviiik) Pay-off lettersLender shall have received the copies of the policies of insurance, termination statementstogether with the endorsements thereto, canceled mortgages and the like as are required by Section 6.12 hereof, the Administrative Agent form and substance of which shall be satisfactory to Lender in connection with its sole and absolute discretion;
(l) Payment of Lender’s fees and reimbursable costs and expenses due under this Agreement through the removal date of any Liens (other than Permitted Liens)initial Advance, including, including without limitation, all tax Lienslegal expenses, against filing and recording fees, incurred through the assets date of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery closing of this Agreement, including, without limitation, fees and expenses of counsel shall have been made to the Administrative AgentLender;
(xxiim) Evidence Borrower is licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary, shall have been made to Lender;
(n) A flow Customer Identification Information Form and such other forms and verification as Lender may need to comply with the U.S.A. Patriot Act and other applicable laws and regulations;
(o) No material adverse change shall have occurred relative to Borrower, Borrower’s business activities, operations and projections, the Collateral, or the liens, security interest, or rights of funds report duly executed Lender;
(p) Borrower shall have provided an appraisal for each property encumbered by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateNote Mortgage; and
(xxiiiq) All such Such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionreasonable discretion may require.
Appears in 1 contract
Sources: Loan and Security Agreement (InPoint Commercial Real Estate Income, Inc.)
Conditions Precedent to Initial Advance. The obligations effectiveness of this Agreement and the obligation of the Lenders to undertake the Revolving Loan Commitments Commitment, the Term Loan A Commitment and the Term Loan B Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior or contemporaneous fulfillment of each of the following conditions:
(a) The Administrative Agent and the Lenders shall have received each of the following, :
(i) this Agreement duly executed;
(ii) duly executed Borrower Pledge Agreement;
(iii) duly executed Borrower Security Agreement;
(iv) duly executed Guaranties;
(v) duly executed Guarantor Security Agreement;
(vi) duly executed Guarantor Pledge Agreement;
(vii) duly executed Mortgages for all Real Property set forth on Schedule 4;
(viii) duly executed copy of landlord waivers in form and substance satisfactory to the Administrative Agent:
(i) This duly executed AgreementAgent as may be required by Section 7.12;
(iiix) A duly executed Revolving Loan Note control agreements with respect to investment accounts, securities accounts and deposit accounts to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements extent required by Section 6.15;
7.16 hereof (vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent Agent);
(x) duly executed copy of that certain fee letter by and completed by auditors between the Borrower and appraisers selected by the Administrative Agent;
(ixxi) The legal opinion loan certificate of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated Date, in substantially the form attached hereto as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit I, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: following items (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws certificate of such formation and operating agreement of the Borrower Partyas in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of formation of the Borrower and for each state in which the failure by the Borrower to qualify to do business could reasonably be expected to have a Materially Adverse Effect, (C) a true, complete and correct copy of the corporate resolutions of such the Borrower Party authorizing the executionBorrower to execute, delivery deliver and performance by such Borrower Party of perform this Agreement and the other Loan Documents Documents, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a true, complete and correct copy of good standing from each jurisdiction any agreements or voting trust agreements in which such Borrower Party does business, and (E) copies of all agreements among effect with respect to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Ownership Interests of such the Borrower;
(xii) legal opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Borrower, addressed to each Lender and the Administrative Agent and dated as of the Agreement Date in form and substance satisfactory to the Administrative Agent and the Lenders;
(xiii) legal opinion of local counsel to the Borrower Party;in the States of Virginia and South Carolina, addressed to each Lender and the Administrative Agent and dated as of the Agreement Date in form and substance satisfactory to the Administrative Agent and the Lenders
(xiv) A Solvency duly executed Certificate executed of Financial Condition, in substantially the form attached hereto as Exhibit B, for the Borrower and its Subsidiaries on a consolidated basis, given by an a duly Authorized Signatory of the Administrative Borrower regarding the solvency Borrower, and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect such other information pertaining to the incurrence capital and corporate structure of the initial Advance and Borrower, any Guarantor or any of its Subsidiaries as the issuance of Administrative Agent or the initial Letter of Credit hereunderLenders shall request;
(xv) Parent copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement and otherwise meeting the requirements of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009this Agreement;
(xvi) Consolidated financial statements of Parent lien and its Subsidiaries for judgment search results satisfactory to the eight-month transition period ended February 2, 2008 Administrative Agent and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and Lenders with respect to each Guarantor, the financial statements for Borrower and each of the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingBorrower’s Subsidiaries;
(xvii) Certificates of insurance and loss payable endorsements with respect delivery to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)all possessory collateral, including, without limitation, all tax Liens, against the assets any pledged notes or pledged stock;
(xviii) delivery of a business plan of the Borrower PartiesBorrower, which plan shall be in form and substance satisfactory to the Lenders, with annual projections for at least the four (4) year period following the Agreement Date and a comprehensive cash-flow model;
(xix) Lien search results with respect to unaudited financial statements of the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence its Subsidiaries for the fiscal quarter period ended September 30, 2007, which shall be in form and substance satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateLenders; and
(xxiiixx) All all other such other documents as the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Lenders shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or or, to the knowledge of the Borrower, threatened reversal or cancellation.
(c) Each of the representations and warranties in Article 4 hereof are true and correct in all material respects as of the date hereof, that no other consents or approvals are required and that no Default exists, after giving effect or Event of Default then exists or is continuing.
(d) The Borrower shall have paid to the initial Advance hereunderAdministrative Agent on the Agreement Date, using proceeds from a Revolving Loan all fees in connection with this Agreement due and payable to the Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of Lenders on the Administrative Borrower so statingAgreement Date.
(e) The Administrative Agent shall have received confirmation evidence satisfactory to it that the original Uniform Commercial Code financing statements naming Borrower has received proceeds from an equity contribution in the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentan aggregate gross amount of not less than $25,000,000 by US Parent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Term Loan B Proceeds.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect received at least five (5) Business Days prior to the Borrowers Agreement Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, but not limited to, the results thereof USA PATRIOT Act.
(h) The Administrative Agent shall be acceptable have received a pay off letter from ▇▇▇▇▇ Fargo Foothill, Inc. in form and substance satisfactory to the Administrative Agent, providing that, upon repayment, all Indebtedness of the Borrower owed to ▇▇▇▇▇ Fargo Foothill, Inc. pursuant to the WFF Loan Agreement by the Borrower and its Subsidiaries, if any, shall be released from any liability in its sole discretionrespect of such Indebtedness, and all Liens on the assets securing such Indebtedness shall be released pursuant to UCC-3 termination statements and other instruments as shall be suitable or appropriate in connection therewith.
Appears in 1 contract
Sources: Loan Agreement (BGF Industries Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Banks Bank to issue (or arrange for the issuance of) the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative AgentLender Group:
(i) This Agreement duly executed Agreementby the Borrowers, the Guarantors, the Lenders, and the Administrative Agent;
(ii) A duly executed Any Revolving Loan Note to the order of each Notes requested by any Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(viiiii) The Reaffirmation Agreement duly executed Post-Closing Agreementby each Credit Party;
(viiiiv) A satisfactory field audit of all Accounts An Information and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory Collateral Disclosure Certificate with respect to the Administrative Agent and completed Credit Parties duly executed by auditors and appraisers selected by the Administrative Agentsuch Credit Party;
(ixv) The legal opinion opinions of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local counsel to the Borrower Credit Parties, and local counsel for each jurisdiction in which a Credit Party is organized (to the extent the foregoing opinions do not opine as to the law of such jurisdictions), in each case addressed to the Lender Group, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including without limitation the Indenture with respect to the 2015 Notes and the 2017 Notes), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(xivi) The duly executed Request for Advance for the initial Advance of the Loans, with disbursement instructions attached thereto;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiiivii) A loan certificate signed by an Authorized Signatory of each Borrower Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Borrower Party Person certified to be true, complete and correct by the Secretary of State of the State of such Borrower PartyPerson’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Borrower PartyPerson, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Borrower Party Person authorizing the execution, delivery and performance by such Borrower Party Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Borrower Party does businessPerson is organized and, and (E) copies of all agreements among to the shareholders of such Borrower Party extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Borrower Party Person is required to be qualified to do business; provided, that if a party and plans and agreements document referenced in clause (other than agreements entered into pursuant to A) or (B) was delivered in connection with a disclosed plan) providing for the grantExisting Credit Agreement, issuance or sale of Equity Interests then delivery of such Borrower Partydocument shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect;
(xivviii) A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Administrative Borrower Parent regarding the solvency and financial condition of Parent and its Subsidiariesthe Credit Parties, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xvix) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statementCertificates of insurance, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2Credit Parties (other than IMS Southern, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesLLC), in each case, meeting the requirements of Section 6.5;
(xviiix) Pay-off lettersUCC, termination statementsPPSA, canceled mortgages Lien, and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixii) A flow certificate signed by an Authorized Signatory of funds report duly executed by the Administrative Borrower which report shall include a statement Borrowers certifying that each of all sources and uses the applicable conditions set forth in Section 4.2 have been satisfied;
(xiii) All Real Estate Documents with respect to the parcels of funds Real Property listed on Schedule 1.1(b) to the Agreement Dateextent that such Real Property is Eligible Real Estate; and
(xxiiixiv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Lenders agree that the Revolving Loan Commitment of each of the Lenders immediately prior to the effectiveness of this Agreement shall be reallocated among the Lenders such that, immediately after the effectiveness of this Agreement in accordance with its terms, the Revolving Loan Commitment of each Lender Group shall have received evidence satisfactory be as set forth on Schedule 1.1(a). In order to them effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignment and Acceptance (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, such that after giving effect to this Agreement, each Lender holds Revolving Loans equal to its Pro Rata Share (based on the Revolving Loan Commitment of each Lender as set forth on Schedule 1.1(a)). To the extent the reallocation permitted pursuant to this Section 4.1(b) results in the prepayment of any Eurodollar Advance in whole or in part, the Lenders hereby agree to waive any reimbursement obligations of the Borrowers arising under Section 2.9 in connection therewith.
(c) The Administrative Agent shall be satisfied that no change in the business assetsbusiness, managementcondition (financial or otherwise), operations results of operations, liabilities (contingent or financial condition otherwise), or properties of the Borrower Parties Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since February 2September 29, 20082018, which change has had or could would be reasonably expected to have a Materially Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower Borrowers so stating.
(cd) The Lender Group Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k), each in form and substance reasonably acceptable to (ii) the members unaudited balance sheet of the Lender GroupParent and its Restricted Subsidiaries for the fiscal quarter ended on June 29, 2019, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2024, prepared on a month by month basis from the Agreement Date through September 26, 2020, and prepared on an annual basis for each fiscal year thereafter (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(de) The Lender Group Administrative Agent shall have received evidence satisfactory to them a certificate signed by an Authorized Signatory of the Borrowers certifying (i) that all Necessary Authorizations are in full force and effect and effect, are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and all applicable waiting periods have expired, and that there is no Default existsongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, after giving effect to the initial Advance hereundercorrect, and the Lender Group shall have received a certificate complete copies of an Authorized Signatory of the Administrative Borrower so statingall such Necessary Authorizations.
(ef) The At least five (5) days prior to the date of this Agreement, the Administrative Agent shall have received confirmation that all documentation and information required by any Governmental Authority under any applicable “know your customer” and Anti-Money Laundering Laws including the original Uniform Commercial Code financing statements naming Patriot Act and, if any Borrower qualifies as a “legal entity customer” under the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed Beneficial Ownership Regulation, a Beneficial Ownership Certification in all appropriate jurisdictions, in relation to such form as shall be satisfactory to the Administrative AgentBorrower.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for with a Foreign Issuer the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgents and the other members of the Lender Group:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s 's Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Pledge Agreement duly executed by each Borrower Party pledging one hundred percent (100%) of the Equity Interests owned by such Borrower Party in any Domestic Subsidiary and a minimum of sixty five percent (65%) of the Equity Interests owned by such Borrower Party in any Foreign Subsidiary, together with stock certificates representing all of the certificated Equity Interests pledged as security thereunder and stock powers with respect thereto duly endorsed in blank and Uniform Commercial Code financing statements, as applicable, related to all of the Equity Interests pledged as security thereunder;
(iv) The Security Agreement duly executed by the each Borrower PartiesParty, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The Intellectual Property Security Agreement duly executed Blocked Account Agreements required by Section 6.15each Borrower Party;
(vi) The Assignment of Rights under Acquisition Agreement duly executed by the Parent, the Target and acknowledged by the Sellers;
(vii) Each factor of Accounts under the factoring arrangements described in Schedule 8.7 shall have executed a Factoring Intercreditor Agreement,
(viii) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to Mortgages duly executed by the applicable Borrower Parties, addressed to encumbering each Borrower Party's fee interest in the Lender Group;
real property listed on Schedule 5.1(w)-2 (x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇other than the Administrative Borrower's real property located in Greenville, Georgia, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ in Vidalia, P.A.Georgia, at lots 34 and 35 in Gaffney, South Carolina and at ▇▇▇▇ ▇▇▇▇▇▇ in Gaffney, South Carolina), together with delivery to the Administrative Agent of: (w) title insurance commitments (the "Title Insurance Commitments"), each issued by Lawyers Title Insurance Corporation or another title company acceptable to each of the Agents in such form and amount as is acceptable to each of the Agents insuring that each Mortgage is a valid first priority Lien on the applicable Borrower Party's interest in the real property subject only to such exceptions to title as shall be acceptable to each of the Agents in their discretion and containing such endorsements and affirmative insurance as the Agents may require and as are available in the jurisdiction in which the relevant property is located, and true copies of each document, instrument or certificate required by the terms of each such policy and/or Mortgage to be filed, recorded, executed or delivered in connection therewith; (x) duly authorized Uniform Commercial Code financing statements under the applicable Uniform Commercial Code, or other filings under applicable law, to be filed in connection with each Mortgage in form and substance satisfactory to each of the Agents to perfect the Lien created by each Mortgage; (y) a current survey of the real property encumbered by each Mortgage, certified to the title company, the Lender Group and each of their successors and assigns, in form and content satisfactory to each of the Agents and prepared by a professional and properly licensed land surveyor satisfactory to each of the Agents and (z) local counsel opinions with respect to each Mortgage in form and substance satisfactory to each of the Borrower PartiesAgents.
(x) An environmental review and audit report (including phase I and, addressed as determined necessary by the Agents, phase II environmental reports) with respect to each parcel of Eligible Real Estate, together with a reliance letter in favor of the Lender Group;, in each case, satisfactory in all respects to each of the Agents from EMG or another independent firm acceptable to the Administrative Agent (including without limitation any Phase I and, as determined necessary by the Agents, Phase II environmental reports prepared by EMG), together with copies of all existing environmental reviews and audits and other information pertaining to actual or potential environmental claims as the Agents may require.
(xi) The duly executed Request for Advance for the initial Advance Appraisals in form and substance satisfactory to each of the LoansAgents reflecting values of the Borrower Parties' interest in real property and Inventory at levels acceptable to each of the Agents from appraisers acceptable to each of the Agents (including without limitation, appraisals of inventory from Hilco Appraisal Services, LLC, appraisals of real property from Land America, and valuations by the Administrative Agent's field examiners (including, without limitation, valuations from Freed ▇▇▇▇▇▇) reflecting values of the Borrower Parties' Accounts, Inventory and other personal property at levels acceptable to each of the Agents;
(xii) A duly Duly executed Borrowing Base Certificate dated landlord waiver agreements and bailee waiver agreements, as of the Agreement Date and calculated as of July 5applicable, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, 's leased premises or goods in the following: (A) a copy possession of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Partiesbailees, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as each of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Agents;
(gxiii) The Administrative Agent shall have completed such other business and legal due diligence A duly executed Licensor Consent Agreement with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.each License Agreement;
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations effectiveness of this Agreement and the obligation of the Lenders to undertake the Revolving Loan Commitments Commitment and the Term Loan B Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior or contemporaneous fulfillment of each of the following conditions:
(a) The Administrative Agent and the Lenders shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security this Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related theretoand a Lender Addendum executed and delivered by each Lender and accepted by the Borrower;
(ii) duly executed Parent Guaranty;
(iii) duly executed Subsidiary Guaranty for each Domestic Subsidiary of the Borrower;
(iv) Original duly executed Parent Security Agreement;
(v) duly executed Parent Pledge Agreement, together with stock certificates evidencing the issued and outstanding shares of capital undated stock pledged to the Administrative Agent pursuant to the powers;
(vi) duly executed Borrower Security Agreement;
(vii) duly executed Borrower Pledge Agreement, together with stock certificates and undated stock powers;
(viii) duly executed Trademark Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agentany documentation relating thereto;
(ix) The legal opinion duly executed Subsidiary Security Agreement from each Domestic Subsidiary of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender GroupBorrower;
(x) The legal opinion duly executed Consents to Assignments in substantially the form attached hereto as Exhibit R assigning to the Administrative Agent for itself and on behalf of (A) ▇the Lenders the CBT Contracts and the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender GroupContract;
(xi) The duly executed Request for Advance for the initial Advance loan certificate of the Loans;
(xii) A duly executed Borrowing Base Certificate Borrower dated as of the Agreement Date and calculated Date, in substantially the form attached hereto as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit S, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws Certificate or Articles of such Formation and Operating Agreement of the Borrower Partyas in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of formation of the Borrower and for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of such the Borrower Party authorizing the executionBorrower to execute, delivery deliver and performance by such perform this Agreement and the other Loan Documents to which the Borrower Party is a party, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Ownership Interests of the Loan Documents Borrower;
(xii) the loan certificate of the Parent dated as of the Agreement Date, in substantially the form attached hereto as Exhibit T, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and authorizing correct copy of the borrowings Certificate or guaranty, Articles of Formation and Operating Agreement of the Parent as applicable, hereunderin effect on the Agreement Date, (DB) certificates of good standing from for the Parent issued by the Secretary of State or similar state official for the state of formation of the Parent and for each jurisdiction state in which the Parent is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of the Parent authorizing the Parent to execute, deliver and perform this Agreement and the other Loan Documents to which Parent is a party, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Ownership Interests of the Parent;
(xiii) the loan certificate of each Domestic Subsidiary of the Borrower, dated as of the Agreement Date, in substantially the form attached hereto as Exhibit U, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the articles of incorporation or certificate of formation and by-laws or operating agreement or other formation documents of such Subsidiary as in effect on the Agreement Date, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for the state of incorporation or formation of such Subsidiary and for each state in which such Borrower Party does Subsidiary is required to qualify to do business, (C) a true, complete and correct copy of the corporate or other organizational resolutions of such Subsidiary authorizing such Subsidiary to execute, deliver and perform the Loan Documents to which such Subsidiary is a party, and (ED) copies a true, complete and correct copy of all any shareholders' or members' agreements among or voting trust agreements in effect with respect to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Ownership Interests of such Borrower PartySubsidiary;
(xiv) A Solvency Certificate executed by an Authorized Signatory legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Parent, the Borrower and CBD Finance, addressed to each Lender and the Administrative Agent and dated as of the Administrative Borrower regarding the solvency Agreement Date in form and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect substance reasonably satisfactory to the incurrence of the initial Advance Administrative Agent and the issuance of the initial Letter of Credit hereunderLenders;
(xv) Parent copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement and otherwise meeting the requirements of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009this Agreement;
(xvi) Consolidated financial statements duly executed Certificate of Parent Financial Condition for the Parent, the Borrower and its Subsidiaries for on a consolidated basis, given by the eight-month transition period ended February 2, 2008 and chief financial officer of the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAPBorrower, and with respect such other information pertaining to the financial statements for capital and corporate structure of the eight-month transition period ended February 2Parent, 2008, audited by independent public accountants the Borrower or any of recognized national standingits Subsidiaries as the Administrative Agent or the Lenders shall reasonably request;
(xvii) Certificates of insurance recent lien and loss payable endorsements judgment search results in each relevant jurisdiction reasonably satisfactory to the Administrative Agent and the Lenders with respect to the Parent, the Borrower Parties, in each case, meeting the requirements of Section 6.5and its Subsidiaries;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by delivery to the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)all possessory collateral, including, without limitation, all tax Liens, against the assets of the Borrower Parties;any pledged notes or pledged stock; and
(xix) Lien search results with respect to duly executed Performance Certificate for the Parent, the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedits Subsidiaries.
(b) The Lender Group Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that all Necessary Authorizations, necessary or, in the discretion of the Administrative Agent, advisable in connection with the Transactions, the financing contemplated hereby and the continuing operations of the Borrower and its subsidiaries have been obtained or made, are in full force and effect and, all applicable waiting periods shall have expired without any action being taken or, to the knowledge of the Borrower, threatened by any competent authority which would reasonably be expected to restrain, prevent, or otherwise impose materially adverse conditions on the Transactions or the financing thereof.
(c) The Borrower shall certify to the Administrative Agent and the Lenders that each of the representations and warranties in Article 4 hereof are true and correct in all material respects as of the date hereof, that no Default or Event of Default then exists or is continuing and that no material adverse change has occurred in the financial condition, business operations, prospects or properties of the Parent, the Borrower and its Subsidiaries, on a consolidated basis, since the most recent fiscal year end and fiscal quarter end.
(d) The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties event shall have occurred since February 2, 2008, and no condition shall exist which change has had or could reasonably be expected to have a Materially Adverse Effect since December 31, 2002.
(e) There shall not exist as of the Agreement Date, any action, suit, proceeding or investigation pending against, or, to the knowledge of the Borrower, threatened against or in any manner relating adversely to, the Parent, the Borrower, any of its Subsidiaries, any of their respective properties or the transactions contemplated hereby, in each case, which reasonably could be expected to have a Materially Adverse Effect.
(f) The Lenders, the Administrative Agent and the Arrangers shall have received all fees required to be paid on or before the Agreement Date or as set forth in separate letter agreements executed by the Borrower, and the Lender Group Administrative Agent and the Lenders shall have received reimbursement of all reasonable out-of-pocket expenses payable by the Borrower pursuant to this Agreement.
(g) The Borrower and CBD Finance shall have received gross proceeds of at least $150,000,000 in cash from the issuance of the Senior Subordinated Notes, on terms and conditions reasonably satisfactory to the Arrangers. After the consummation of the Transactions, the capital structure of each of the Parent, the Borrower and its Subsidiaries shall be satisfactory in all respects.
(h) The sources and uses of funds for the Transactions shall be substantially as set forth on Schedule 8 hereto, or as otherwise reasonably satisfactory to the Lenders.
(i) The Lenders shall have received copies of (i) satisfactory audited consolidated financial statements (1) of CBD for the fiscal year ended December 31, 2001, (2) of CBD for the period from January 1, 2002 through March 7, 2002 and (3) of the Borrower for the period from March 8, 2002 through December 31, 2002 and (ii) satisfactory unaudited interim consolidated financial statements of the Borrower for the fiscal quarter ended on March 31, 2003.
(j) The Lenders shall have received a certificate of an Authorized Signatory reasonably satisfactory pro forma consolidated balance sheet of the Administrative Borrower so statingas of the date of the most recent consolidated balance sheet delivered pursuant to paragraph (i) above, adjusted to give effect to the consummation of the Transactions and the financings contemplated hereby as if such transactions had occurred on such date.
(ck) The Lender Group Lenders shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members projections (with a written outline of the Lender Groupapplicable assumptions made in respect thereof) for fiscal years 2003 through 2009.
(dl) The Lender Group Borrower shall have received evidence satisfactory to them that all Necessary Authorizations are credit ratings of (i) not less than B3 from ▇▇▇▇▇'▇ and B- from S&P in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to respect of the initial Advance hereunderSenior Subordinated Notes, and the Lender Group shall have received (ii) a certificate rating of an Authorized Signatory not less than B1 from ▇▇▇▇▇'▇ and B+ from S&P in respect of the Administrative Borrower so statingLoans, all of which ratings shall be with a stable outlook and remain in effect on the Agreement Date.
(em) The Administrative Agent shall have received confirmation evidence satisfactory to it that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party Existing Credit Agreement shall have been duly filed terminated, all amounts thereunder shall have been paid in full, and all appropriate jurisdictions, liens in such form as respect thereof shall be have been terminated in a manner reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (CBD Media LLC)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the followingfollowing (with sufficient copies for each of the Lenders), in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order a loan certificate of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryBorrower, in substantially the form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit R, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyBorrower, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation incorporation or Formation certificate of formation of such Borrower Party Borrower, certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation Borrower's organization, and a true, complete and correct copy of the by-laws or formationequivalent document of such Borrower, (B) certificates of good standing for such Borrower issued by the Secretary of State or similar state official for each state in which such Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of such Borrower, authorizing such Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of such Borrower;
(ii) duly executed Parent Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(iii) duly executed Holdco Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(iv) duly executed Security Agreement, together with evidence of the filing of appropriate UCC-1 financing statement forms; -44- 45
(v) duly executed Omnipoint Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vi) duly executed VoiceStream Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vii) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary, together with evidence of the filing of appropriate UCC-l financing statement forms;
(viii) duly executed Subsidiary Guaranty;
(ix) duly executed Parent Guaranty;
(x) duly executed Holdco Guaranty;
(xi) copies of insurance binders or certificates covering the assets of the Borrowers and the Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5;
(xii) legal opinions of (i) Frie▇▇▇▇ ▇▇▇l▇▇ & ▇eil▇▇ ▇▇▇, general counsel to the Borrowers and the Restricted Subsidiaries, and (ii) Gurm▇▇, ▇▇as▇ & ▇ree▇▇▇▇, ▇▇C counsel to the Borrowers and the Restricted Subsidiaries; each as counsel to the Borrowers and the Restricted Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its special counsel, and dated as of the Agreement Date;
(xiii) duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, the Borrowers' compliance with the Financial Covenants;
(xiv) duly executed Use of Proceeds Letter;
(xv) duly executed Certificate of Financial Condition for the Borrowers and the Restricted Subsidiaries, given by the chief financial officer of each Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since December 31, 1998;
(xvi) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents;
(xvii) duly executed Subsidiary Pledge Agreement from each Restricted Subsidiary, which has one or more corporate Restricted Subsidiaries together with appropriate stock certificates and undated stock powers executed in blank;
(xviii) a loan certificate from each Restricted Subsidiary, in substantially the form attached hereto as Exhibit S, with respect to corporations, and Exhibit T, with respect to partnerships or limited liability companies, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items, if a corporation, and the analogous items, if a partnership or a limited liability company: (A) a copy of the certificate or articles of incorporation of such Restricted Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Restricted Subsidiary, (B) certificates of good standing for such Restricted Subsidiary issued by the Secretary of State or similar state official for each state in which such Restricted Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Borrower PartyRestricted Subsidiary, and (CD) a true, complete and correct copy of the resolutions of such Borrower Party Restricted Subsidiary authorizing the executionit to execute, delivery deliver and performance by such Borrower Party of perform the Loan Documents to which it is a party;
(xix) evidence that all conditions precedent to the Omnipoint Acquisition pursuant to the Omnipoint Acquisition Documents as in effect on the Agreement Date have been completed (without any amendment or waiver of any material conditions precedent in favor of VoiceStream other than as approved by the Arrangers and authorizing other than waiver of the borrowings or guarantycondition that FCC approval of the Omnipoint Acquisition shall have become final), as applicable, hereunder, except for the funding of the Loans hereunder to finance the purchase price;
(Dxx) certificates confirmation of good standing the Parent's receipt of an additional equity Investment from each jurisdiction in which such Borrower Party does business, and Hutc▇▇▇▇▇ ▇▇ an aggregate amount of not less than $807,000,000;
(Exxi) confirmation of the Parent's receipt of an additional equity Investment from Sonera of at least $500,000,000;
(xxii) copies of all agreements among payoff letters and duly executed Lien releases with respect to any Liens which are not Permitted Liens hereunder upon the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory assets of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance Borrowers and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAPRestricted Subsidiaries, and with respect to the financial statements any Indebtedness for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Money Borrowed which is not Permitted Liens)Debt hereunder, including, without limitation, all tax Lienseach issue of Indebtedness for Money Borrowed which is refinanced with Omnipoint Refinancing Loans, against a schedule, which shall be attached hereto as Schedule 4, setting forth in reasonable detail each issue of such Indebtedness for Money Borrowed to be refinanced, the obligors (and Subsidiaries thereof) with respect thereto and the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Datesecuring such Indebtedness for Money Borrowed; and
(xxiii) All all such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them it that all Necessary Authorizations Authorizations, including all necessary consents to the Omnipoint Acquisition and the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents to which it is a party and by the Restricted Subsidiaries of the Loan Documents to which they are parties, have been obtained or made, are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory so stating.
(c) The Lenders, the Administrative Agent, and Paul, Hastings, Jano▇▇▇▇ & ▇alk▇▇ ▇▇▇, special counsel to the Administrative Agent, shall receive payment of all fees and expenses due and payable on the Agreement Date in respect of the transactions contemplated hereby.
(d) The Administrative Borrower so statingAgent and the Lenders shall have received (i) projections for the Parent and its Subsidiaries, on a consolidated basis, assuming consummation of the Omnipoint Acquisition, (ii) projections for the Parent and its Subsidiaries, on a consolidated basis, assuming consummation of both the Omnipoint Acquisition and the Aerial Acquisition, in each case including balance sheet, income statement and cash flow statement information and (iii) pro forma financial statements, giving effect to the Omnipoint Acquisition and Aerial Acquisition, for the Parent and its Subsidiaries, as of September 30, 1999 and for the nine-month period then-ended.
(e) The Administrative Agent and the Lenders shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be evidence satisfactory to them that, after funding the Administrative Agentinitial Advance of the Loans, the Borrowers have no outstanding Indebtedness for Money Borrowed other than Permitted Debt.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance Lenders shall be satisfied with the capital and corporate structure of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and their Subsidiaries, including the results thereof shall be acceptable to Restricted Subsidiaries, the Administrative AgentUnrestricted Subsidiaries, in its sole discretionand the Borrowers' Investments.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and each Lender to make the its initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder shall be subject to the prior fulfillment of each satisfaction (or written waiver) of the following conditions:
(a) The conditions set forth in Section 3.02 and the conditions precedent that the Administrative Agent shall have received each of on or before the Closing Date the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;:
(ixa) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance each of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Facility Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grantCollateral Agent Fee Letter, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect which shall be delivered directly to the incurrence of the initial Advance Collateral Agent) duly executed and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required delivered by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008parties thereto, which change has had or could shall each be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are effect;
(A) to the payment of unpaid amounts under clauses (A) through (D) in clause (i) above (in the same order of priority specified therein), to the extent not paid in full thereunder, but subject to any pending caps specified therein;
(B) during the Reinvestment Period, (i) first, if the Minimum OC Coverage Test is not satisfied as of the relevant Determination Date, to pay principal of the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Minimum OC Coverage Test is satisfied (on a pro forma basis as at such Determination Date) and (ii) second, to the Principal Collection Subaccount for the purchase of additional Collateral Loans (including funding Revolving Collateral Loans and Delayed Drawdown Collateral Loans) and/or for the making of any Permitted Distribution or threatened reversal or cancellationPermitted Tax Distribution;
(C) after the Reinvestment Period, to pay the Advances of each Lender (pro rata, based on each Lender’s Percentage) until the Advances are paid in full; provided that no other consents or approvals are required and that no Default existsthe Borrower shall be permitted to allocate such principal payments among the Classes on each Payment Date so long as, after giving effect to such allocation of payments on such Payment Date, each Class Minimum OC Coverage Test is satisfied; provided, further, that, if the initial Advance hereunderBorrower would be unable to cause each Class Minimum OC Coverage Test to be satisfied on any Payment Date after allocating such payments, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in allocate such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, payments in its sole discretion;
(D) to the payment of amounts referred to in clauses (I) and (J) of clause (i) above (in the same order of priority specified therein), to the extent not paid in full thereunder; and
(1) if a Default has occurred and is continuing (unless all Obligations owing to the Lenders have been paid in full (other than contingent indemnification and expense reimbursement obligations as to which no claim has been asserted)), to remain in the Principal Collection Subaccount (other than a Permitted Tax Distribution) or (2) otherwise, any remaining amount shall be released to the Equityholder or its designee (or, at the direction of the Borrower, deposited into the Principal Collection Subaccount for investment in Collateral Loans); provided that if any such Default under clause (E)(1) is subsequently cured prior to the next Payment Date, such amounts held under clause (E)(1) may be distributed pursuant to clause (E)(2) prior to the next Payment Date.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Morgan Stanley Direct Lending Fund)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the followingfollowing (with sufficient copies for each of the Lenders), in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio loan certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryBorrower, in substantially the form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit O, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation or Formation incorporation of such Borrower Party the Borrower, certified to be true, complete and correct by the Secretary of State of Delaware, and a true, complete and correct copy of the State by-laws of such Borrower Party’s incorporation or formationthe Borrower, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for each state in which 46 the Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of the Borrower, authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of the Borrower;
(ii) duly executed Notes and Fee Letters;
(iii) duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(iv) duly executed Security Agreement, together with evidence of the filing of appropriate UCC-1 financing statement forms;
(v) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with evidence of the filing of appropriate UCC-l financing statement forms;
(vi) copies of insurance binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof;
(vii) legal opinions of (i) Rubi▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇stant & Frie▇▇▇▇, general counsel to the Borrower, and (ii) Gurm▇▇, ▇▇as▇ & ▇ree▇▇▇▇, ▇▇C counsel to the Borrower and its Restricted Subsidiaries; each as counsel to the Borrower and its Restricted Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its special counsel, and dated as of the Agreement Date;
(viii) duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, the Borrower's compliance with the Financial Covenants hereof;
(ix) duly executed Use of Proceeds Letter;
(x) duly executed Certificate of Financial Condition for the Borrower and its Restricted 47 Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since December 31, 1997;
(xi) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents;
(xii) duly executed Subsidiary Pledge Agreement from each Restricted Subsidiary of the Borrower which has one or more corporate Restricted Subsidiaries together with appropriate stock certificates and undated stock powers executed in blank;
(xiii) duly executed Subsidiary Guaranty executed and delivered by each Restricted Subsidiary of the Borrower;
(xiv) a loan certificate from each Restricted Subsidiary of the Borrower, in substantially the form attached hereto as Exhibit P, with respect to corporations, and Exhibit Q, with respect to partnerships, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items, if a corporation, and the analogous items, if a partnership: (A) a copy of the certificate or articles of incorporation of such Restricted Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Restricted Subsidiary, (B) certificates of good standing for such Restricted Subsidiary issued by the Secretary of State or similar state official for each state in which such Restricted Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Borrower PartyRestricted Subsidiary, and (CD) a true, complete and correct copy of the resolutions of such Borrower Party Restricted Subsidiary authorizing the executionit to execute, delivery deliver and performance by such Borrower Party of perform the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party it is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderparty;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.VoiceStream Guaranty;
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and SAFECO to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that SAFECO shall have received each on or before the date of that Advance all of the following, in form and substance satisfactory to the Administrative AgentSAFECO:
(iA) This duly executed AgreementThe Note;
(iiB) A Guaranties, duly executed Revolving Loan Note to by Oak Wood Insurance Company, Ltd. and California Landscape Contractors Association Welfare Insurance Trust Fund (the order "Guarantors"), in substantially the form of each Lender requesting a promissory note in Exhibit D (the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment"Guaranties);
(iiiC) The Security Agreement Pledge Agreement, duly executed by the Borrower PartiesOak Wood Insurance Company, together with Uniform Commercial Code financing statements related thereto;
Ltd. and California Landscape Contractors Association Welfare Insurance Trust Fund (iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & "▇▇▇▇▇▇▇▇▇ LLP and "), substantially in the form of Exhibit E (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group"Pledge Agreement");
(xiD) The Acknowledgment copies of proper Financing Statements (Form UCC-1) duly executed Request for Advance for filed under the initial Advance Uniform Commercial Code of all jurisdictions as may be necessary or, in the Loansopinion of SAFECO, desirable to perfect the security interests created by Article III of this Agreement and the Pledge Agreement, together with evidence that all other actions necessary or desirable in SAFECO's opinion to perfect and protect such security interests have been taken;
(xiiE) A duly executed Borrowing Base Certificate dated Certified copies of Requests for Information or Copies (Form UCC- I 1), or equivalent reports, listing the Financing Statements referred to in paragraph (D) above and all other effective financing statements that name Borrower (under its present name and any previous name) as debtor and which are filed in the jurisdictions referred to in paragraph (D), together with copies of such other financing statements (none of which shall cover the collateral purported to be covered by Article III of this Agreement Date and calculated as of July 5, 2008or the Pledge Agreement);
(xiiiF) A loan certificate signed by an Authorized Signatory Certified copies of the resolutions of the Board of Directors of each Borrower Partycorporate Loan Party approving each Loan Document to which it is a party and of all documents evidencing other necessary corporate action and governmental approvals, including a certificate of incumbency if any, with respect to each Authorized Signatory Loan Document;
(G) A certificate of the Secretary or an Assistant Secretary of each corporate Loan Party certifying the names and specimen signatures of the officers of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Loan Party certified authorized to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the sign each Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party Document to which such Borrower Party it is a party and plans and agreements (the other than agreements entered into pursuant documents to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed be delivered by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit it hereunder;
(xvH) Parent Certificates representing all of the issued and its Subsidiaries (a) 2008 business plan including its 12 month income statementoutstanding shares of stock of Borrower pledged to SAFECO pursuant to the Pledge Agreement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009together with undated stock powers for such certificates executed in blank;
(xviI) Consolidated Current financial statements of Parent Borrower, the Agency, and its Subsidiaries the, principals of Borrower and/or the Agency (as specified by SAFECO), including tax returns for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingthree most recent years;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiiJ) A flow copy of funds report duly an executed by the Administrative Services Agreement between Borrower which report shall include a statement of all sources and uses of funds AIS on the Agreement Dateterms and conditions reasonably acceptable to SAFECO; and
(xxiiiK) All such Such other approvals, opinions, financial statements, references, or other documents as the Administrative Agent SAFECO may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit and Security Agreement (Birch Financail Inc)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each satisfaction of the following conditionsconditions precedent:
(a) The Administrative Agent Lender shall have received each of the followingfollowing documents, duly executed where applicable, each dated on or prior to the Closing Date, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventorycase, in form and substance reasonably satisfactory to Lender:
(i) duly executed counterparts of the Administrative Agent Margin Loan Documentation and completed by auditors and appraisers selected by the Administrative Agentall documents contemplated thereby, including any UCC-1 financing statement(s);
(ixii) The legal opinion a certificate of King & Spalding LLPthe Borrower, counsel to dated the Borrower Parties, addressed to Closing Date and executed by an authorized signatory of the Lender Group;
(x) The legal opinion of Borrower’s general partner which shall (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of certify the resolutions of such Borrower Party its general partner, members or other body authorizing the execution, delivery and performance by such Borrower Party of the Margin Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunderDocumentation to which it is a party, (DB) certificates identify by name and title and bear the signatures of good standing from each jurisdiction in the Responsible Officers and any other officers of the Borrower authorized to sign the Margin Loan Documentation to which such Borrower Party does businessit is a party, and (EC) copies attach the Organization Documents of all agreements among the shareholders Borrower certified by the relevant authority of such Borrower Party to which such Borrower Party is the jurisdiction of organization of the Borrower, and, if available, a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing long form good standing certificate for the grant, issuance or sale Borrower from its jurisdiction of Equity Interests of such Borrower Partyorganization;
(xiviii) A Solvency Certificate [Reserved];
(iv) a favorable opinion of special New York counsel to Borrower addressed to Lender and in form and substance reasonably satisfactory to it;
(v) the results of a recent lien search in the jurisdiction where Borrower is located within the meaning of the UCC, and such search shall reveal no liens on any of the assets of Borrower except for liens permitted by Section 6.02 or discharged on or prior to the Closing Date pursuant to a pay-off letter or other documentation satisfactory to Lender.
(vi) FRB Form U-1, the portion of which is to be completed by the Borrower shall be completed to satisfaction of Lender and duly executed by an Authorized Signatory Borrower;
(vii) (A) audited annual consolidated financial statements of the Administrative Borrower regarding from December 31, 2013 and (B) unaudited interim consolidated financial statements of the solvency Borrower for the fiscal quarter ended June 30, 2014, and such financial statements shall not, in the reasonable judgment of Lender, reflect any material adverse change in the consolidated financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of Borrower as reflected in the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated audited financial statements of Parent and its Subsidiaries for referred to in clause (A) above (the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the “Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted LiensFinancial Statements”), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiiviii) All such other certificates or documents as the Administrative Agent Lender reasonably may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedrequire.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating[Reserved].
(c) The Lender Group Collateral Account has been established by Borrower, and the Initial Underlying Equity shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable been credited to the members of the Lender GroupCollateral Account free from all Transfer Restrictions (other than Existing Transfer Restrictions, Permitted Agreements and Trading Policies) by book-entry transfer through DTC, as depositary.
(d) The Lender Group All documented fees required to be paid under the Margin Loan Documentation on or before the Closing Date, including counsel fees invoiced prior to the Closing Date, shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingbeen paid.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Banks to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, hereunder are subject to the prior or contemporaneous fulfillment of each of the following conditions:
(a) The Administrative Agent and the Banks shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This this Agreement duly executed Agreementexecuted;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio loan certificate of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated Date, in substantially the form attached hereto as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit K, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartyPerson, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the Certificate of Incorporation and By-Laws laws of such the Borrower Partyas in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower and for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of such the Borrower Party authorizing the executionBorrower to execute, delivery deliver and performance by such Borrower Party of perform this Agreement and the other Loan Documents Documents, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates a true, complete and correct copy of good standing from each jurisdiction any shareholders' agreements or voting trust agreements in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for stock of the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingBorrower;
(xviiiii) Certificates duly executed Notes;
(iv) duly executed Security Documents;
(v) copies of insurance and loss payable endorsements with respect to binders or certificates covering the assets of the Borrower Partiesand its Restricted Subsidiaries, in each case, and otherwise meeting the requirements of Section 6.55.5 hereof, together with copies of the underlying insurance policies;
(xviiivi) Pay-off letters, termination statements, canceled mortgages legal opinion of Sullivan & Worcester LLP counsel to the Borrower; addressed to each Bank and the like required by the Administrative Agent in connection with and dated as of the removal Agreement Date;
(vii) duly executed Certificate of any Liens Financial Condition for the Borrower and its Restricted Subsidiaries on a consolidated and consolidating basis, given by the chief financial officer of the Borrower;
(other than Permitted Liens), including, without limitation, all tax Liens, against viii) copies of the assets most recent quarterly financial statements of the Borrower Partiesand its Restricted Subsidiaries provided to each Bank and each Administrative Agent, certified by the chief financial officer of the Borrower;
(xixix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Banks shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or or, to the knowledge of the Borrower, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent and the Banks shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Borrower shall certify to the Administrative Agent and the Banks that each of the representations and warranties in Article 4 hereof are true and correct in all material respects as of the Agreement Date and that no Default or Event of Default then exists or is continuing.
(d) The Administrative Agent shall have received confirmation evidence reasonably satisfactory to it that the original Uniform Commercial Code financing statements naming Parent or American Radio Systems has contributed not less than $25,000,000 of equity into the respective Borrower Parties as debtor comprised of not less than $15,000,000 in cash (or acquisitions of property from non- Affiliates made with Capital Stock of American Radio Systems) and the balance in tangible assets (valued at American Radio Systems's cost for such assets).
(e) The Borrower shall have paid to the Administrative Agent as secured party have been duly filed for the account of each Bank the facility fees set forth in all appropriate jurisdictions, those letter agreements dated the Agreement Date in such form as shall be satisfactory to the Administrative Agentfavor of each Bank.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance evidence reasonably satisfactory to it that no real property owned by the Lender GroupBorrower is located in a Federal or state designated flood zone or, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of extent that any Letters of Credit hereunder on the Agreement Datesuch real property is located in a Federal or state designated flood zone, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)evidence satisfactory to it that such real property is sufficiently insured against flood related losses.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of --------------------------------------- the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditionsconditions prior to or contemporaneously with the making of such Advance:
(a) The Administrative Agent Lender shall have received each of the following, in form and substance satisfactory to the Administrative AgentLender:
(i) This duly executed AgreementNote;
(ii) A duly executed Revolving Loan Note to Negative Pledge Agreement executed and delivered by the order of Borrower and each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentSubsidiary;
(iii) The Security Agreement duly executed Subsidiary Guaranty executed and delivered by each Subsidiary of the Borrower Parties, together with Uniform Commercial Code financing statements related theretoBorrower;
(iv) Original stock copies of insurance binders or certificates evidencing covering the issued assets of the Borrower and outstanding shares its Subsidiaries and otherwise meeting the requirements of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankSection 5.5 hereof;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLPLong, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇LLP, P.A., local as general counsel to the Borrower Partiesand its Subsidiaries, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate Lender, and dated as of the Agreement Date and calculated as of July 5, 2008Date;
(xiiivi) A copies of the most recent quarterly and annual financial statements of the Borrower and its Subsidiaries, certified by the chief financial officer of the Borrower;
(vii) any required consents to the closing of this Agreement or to the execution, delivery and performance of this Agreement and the other Loan Documents, each of which shall be in form and substance satisfactory to the Lender;
(viii) the loan certificate signed by an Authorized Signatory of each Borrower Partythe Borrower, in substantially the form attached hereto as Exhibit A-1, including a certificate of incumbency ----------- with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of the Certificate or Articles of Incorporation or Formation of such Borrower Party the Borrower, certified to be true, complete and correct by the Georgia Secretary of State, (B) certificates of good standing or foreign qualification for the Borrower issued by the Secretary of State of or similar state official for each state in which the State of such Borrower Party’s incorporation or formationis required to qualify to do business, (BC) a true, complete and correct copy of the By-Laws of such the Borrower, as in effect on the Agreement Date, (D) a true, complete and correct copy of the resolutions of the Borrower Partyauthorizing it to execute, deliver and perform this Agreement and the other Loan Documents and (E) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the stock of the Borrower;
(ix) the loan certificate of each respective Subsidiary, in substantially the form attached hereto as Exhibit A-2, including a ----------- certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the Certificate or Articles of Incorporation of the Subsidiary, certified to be true, complete and correct by the appropriate Secretary of State with respect to the Subsidiary (B) certificates of good standing or foreign qualification for the Subsidiary issued by the Secretary of State or similar state official for each state in which the Subsidiary is required to qualify to do business, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party By-Laws of the Loan Documents and authorizing the borrowings or guarantySubsidiary, as applicable, hereunderin effect on the Agreement Date, (D) certificates a true, complete and correct copy of good standing from each jurisdiction in which such Borrower Party does businessthe resolutions of the Subsidiary authorizing it to execute, deliver and perform this Agreement and the other Loan Documents and (E) copies a true, complete and correct copy of all any shareholders' agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and or voting trust agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for stock of the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingSubsidiary;
(xviix) Certificates of insurance UCC-1 lien and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien judgment search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees its Subsidiaries for ▇▇▇▇▇▇ County, Georgia and expenses payable to the Administrative AgentSpalding County, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateGeorgia; and
(xxiiixi) All all such other documents as the Administrative Agent Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in payment of all fees due and payable on the business assets, management, operations or financial condition of the Borrower Parties Agreement Date.
(c) There shall have occurred since February 2no Materially Adverse Effect and no event which, 2008in the reasonable opinion of the Lender, which change has had or could may be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement (Metrotrans Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender under this Agreement to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunderAdvance, are subject to and conditional upon satisfaction (or waiver by the prior fulfillment Lender) of each all of the conditions precedent set out in Sections 3.1 and 3.3 and the following conditionsconditions precedent being fulfilled to the satisfaction of the Lender by no later than the date that is thirty (30) days following the Closing Date, which conditions precedent are for the sole and exclusive benefit of the Lender:
(a) The Administrative Agent 3.2.1 the Deed of Hypothec, the Securityholder Agreement, the Warrant Agreement, the IQ Warrant Agreement, the certificates representing the Warrants and the IQ Warrants, the Funding Direct Agreements and [redacted – commercially sensitive information], will have been executed and delivered by all parties thereto and each shall have received each of the following, be in form and substance satisfactory to the Administrative Agent:
(i) This duly executed AgreementLender;
3.2.2 the Lender shall have received certificates of status, compliance or good standing (ii) A duly executed Revolving Loan Note to or the order local law equivalent), as applicable, of each Lender requesting a promissory note Obligor and Telesat Parent;
3.2.3 all financing statements or other registrations necessary or desirable to preserve, protect or perfect the enforceability and first priority of the Encumbrances created by the Deed of Hypothec (subject only to Permitted Encumbrances) shall have been filed, entered or recorded in the amount applicable offices of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Partiespublic record, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Lender, acting reasonably;
3.2.4 the Lender shall have received evidence of all insurance required to be maintained pursuant to the Loan Documents as at the Closing Date, naming the Collateral Agent as additional insured and completed by auditors and appraisers selected first loss payee, as applicable;
3.2.5 all Funding Direct Agreements required in connection with the Security Documents will have been obtained from the applicable Core Material Project Contract Counterparties in respect of each Core Material Project Contract subject to such Funding Direct Agreement as determined to be necessary by the Administrative AgentLender, acting reasonably;
3.2.6 all Landlord Access Agreements required in connection with any Leased Real Property as at the Closing Date will have been obtained from the applicable third parties as determined to be necessary by the Lender, acting reasonably;
3.2.7 currently dated legal opinions from (ixi) The legal opinion of King & Spalding LLP, counsel to the Borrower PartiesObligors and Telesat Parent, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall includeto, without limitation, the following: (A) a copy Deed of Certificate of Incorporation or Formation of such Borrower Party certified to be trueHypothec, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationWarrant Agreement, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter Warrants and the common shares issuable upon exercise of Credit hereunder;
the Warrants, the Securityholder Agreement and the Funding Direct Agreements, (xvii) Parent (A) counsel to each Core Material Project Contract Counterparty subject to a Funding Direct Agreement in respect of its respective Core Material Project Contract(s) and its Subsidiaries related Funding Direct Agreement(s)), (aiii) 2008 business plan including its 12 month income statementcounsel, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2to, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this the MDA Agreement, including, without limitation, fees and expenses of (iv) such other special and local counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed as may be reasonably required by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k)Lender, each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Groupand ▇▇▇▇▇▇’s counsel will have been delivered to the Lender and the Collateral Agent as addressees, reflecting that, among other things, as it being acknowledged that the Non-Consolidation Opinions need not be redelivered or updated;
3.2.8 the requirement outlined in prong (a) of the Agreement Date, after giving effect definition of “Independent Entity” shall have been completed and shall be satisfactory to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, Lender in its sole discretion;
3.2.9 the Lender shall have entered into financing arrangements with Export Development Canada pursuant to that certain credit agreement to be entered into between the Lender, as borrower, and Export Development Canada, on behalf of His Majesty in Right of Canada, as lender;
3.2.10 the Borrower will have paid, or arrangements satisfactory to the Lender shall have been made to ensure that the Borrower will pay, all reasonable and documented out-of-pocket expenses (including all reasonable legal fees, Advisor fees and other consultant or advisor fees) incurred by or on behalf of the Lender in connection with this Agreement, the other Loan Documents and the transactions and other documents contemplated by this Agreement;
3.2.11 no transaction, event or other action shall have occurred since the date hereof that would have required the consent of the Lender pursuant to the Securityholder Agreement or the Warrant Agreement had such agreement been entered into on the date hereof; and
3.2.12 the Lender will have received such additional evidence, documents or undertakings as the Lender, acting reasonably, will request to address any new information that arises after the Closing Date and prior to the date of the initial Advance in connection herewith in compliance with the conditions set forth in this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Telesat Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original The Reaffirmation Agreement duly executed by the Borrower Parties;
(v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(vvi) The To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.15;
(vivii) The Fee Letter duly executed by the Borrowers;
(viiviii) The duly executed Post-Closing Agreement;
(viiiix) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all InventoryInventory and Eligible Trademarks, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ixx) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(xxi) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xixii) The duly executed Request for Advance for the initial Advance of the Loans;
(xiixiii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5May 26, 20082012;
(xiiixiv) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xivxv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xvxvi) Parent and its Subsidiaries (a) 2008 2012 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly annual projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingyear 2016;
(xvii) Payment of all accrued and unpaid interest, fees, costs and expenses owing to the Administrative Agent (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement;
(xviii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviiixix) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xixxx) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xxxxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxixxii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxiixxiii) Each Borrower Party shall have complied with all reasonable requests from the Lender Group relating to applicable bank regulatory, “know your customer,” and anti-money laundering matters including, for the avoidance of doubt, with respect to the USA Patriot Act and OFAC, and each member of the Lender Group shall have satisfactorily completed its diligence with respect thereto;
(xxiv) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixxv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business business, assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2January 28, 20082012, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the last day of the most recently ended fiscal month prior to the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement DateDate (as if such borrowings and issuances had occurred on the last day of such fiscal month), Availability shall not be less than $75,000,000 60,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender's obligation to make the initial first Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each satisfaction, as determined by Lender in its reasonable discretion, of the following conditions:
(a) The Administrative Agent Borrower shall have received each executed and delivered to Lender the Security Agreement in the form of the following, in form and substance satisfactory to the Administrative Agent:
EXHIBIT C (i) This duly executed AgreementTHE "SECURITY AGREEMENT");
(iib) A duly Borrower shall have executed Revolving Loan Note and delivered to Lender the order of each Lender requesting a promissory note Borrower Patent and Trademark Security Agreement for filing in the amount U.S. Patent and Trademark Office in the form of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentEXHIBIT D;
(iiic) The Security Borrower and Lender shall have entered into an Account Control Agreement duly executed with each bank, Securities Intermediary or other financial institution with whom Borrower or its Subsidiaries have an Account substantially in the form of EXHIBIT E together with such changes requested by the Borrower Partiesbank, together with Uniform Commercial Code financing statements related theretoSecurities Intermediary or other financial institution and which changes are acceptable to Lender and Borrower;
(ivd) Original stock certificates evidencing Borrower shall have executed and delivered to Lender a duly executed Promissory Note in the issued and outstanding shares form of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankEXHIBIT A;
(ve) The duly executed Blocked Account Agreements required receipt by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit Lender of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal an opinion of King Latham & Spalding LLPWatkins, counsel to the for Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) or such other nationally reco▇▇▇▇▇▇ ▇▇▇ co▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇easonably acceptable to Lender), P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date date the first Advance is made, substantially in the form of EXHIBIT F hereto and calculated covering such additional matters relating to the transactions contemplated hereby as of July 5, 2008Lender may reasonably request;
(xiiif) A loan certificate signed Borrower and each of its Subsidiaries shall have executed and delivered to Lender a duly executed Perfection Certificate in the form of EXHIBIT B and (x) if such Perfection Certificate demonstrates that any Collateral is owned by any Subsidiary, then, to the extent necessary for Borrower to comply with its obligations under Section 6.13 hereof, such Subsidiary of Borrower shall grant a first priority perfected security interest in such Collateral to Lender and (y) if such Perfection Certificate demonstrates that any Subsidiary organized in the U.S. of Borrower owns assets worth in excess of $1,000,000 then such Subsidiary shall have executed and delivered to Lender a guaranty of the Loan Documents in customary form reasonably satisfactory to Lender;
(g) Borrower and each of its Subsidiaries shall have executed and delivered to Lender a certificate, dated as of the date hereof and the date the first Advance is made, duly executed by its Secretary or an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the followingAssistant Secretary certifying as to: (A) a true and correct copy of Certificate its certificate of Incorporation incorporation or Formation certificate of formation attached thereto, as certified by the secretary of state of its jurisdiction of organization as of a date no earlier than ten (10) days prior to the date hereof and the date the first Advance is made, and stating that such certificate of incorporation or certificate of formation is in full force and effect and that there have been no amendments, alteration or modifications of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, certificate (B) a true, complete true and correct copy of its bylaws or operating agreement, attached thereto, and stating that such bylaws or operating agreement are in full force and effect as of the By-Laws date hereof and the date of such Borrower Partythe first Advance, (C) a truethe good standing certificate attached thereto from each jurisdiction where it is qualified to do business, complete and correct (D) the copy of the resolutions attached thereto of such Borrower Party the Board of Directors authorizing and approving the execution, delivery and performance by such Borrower Party of, and the consummation of the transactions contemplated by, this Agreement, the other Loan Documents and authorizing any other documents or instruments contemplated hereby, and stating that the borrowings resolutions thereby certified have not been amended, modified, revoked or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, rescinded; and (E) copies the incumbency, authority and specimen signature of all agreements among each officer executing this Agreement, the shareholders Loan Documents or any other document or instrument contemplated hereby;
(h) no event specified in Section 2.6(b) shall have occurred;
(i) no injunctive or equitable relief has been obtained in favor of any Person other than Borrower or Lender due to the infringement of any third party rights by the Products;
(j) the License Agreement shall not have been terminated and shall be in full force and effect, and Borrower is not at such Borrower Party to which such Borrower Party is a party and plans and agreements time in default or breach (x) (other than agreements entered into pursuant a de minimis breach) of any provision of the License Agreement or (y) of any of payment obligations under Section 5.3(a) or 6A.7 of the Collaboration Agreement or any obligation to comply with law under Section 2.2 or in connection with a disclosed plan6A.3(a)(i) providing for of the grant, issuance or sale of Equity Interests of such Borrower PartyCollaboration Agreement;
(xivk) A Solvency Certificate executed by an Authorized Signatory termination of the Administrative any outstanding Liens on any assets or properties of Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xixl) Lien search results with respect to Borrower and the Borrower Parties from all appropriate jurisdictions and filing officesSubsidiaries shall have no outstanding Indebtedness other than Permitted Indebtedness;
(xxm) Evidence satisfactory the US Launch Date shall have occurred on or prior to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date[***]; and
(xxiiin) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition development of the Borrower Parties MR Product shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentterminated.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Secured Loan Agreement (Neurocrine Biosciences Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender’s agreement to make the initial Initial Advance hereunderis subject to, and among other things, the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Lender shall have received each of the followingreceived, in form and substance satisfactory to Lender, such documents, and completion of such other matters, including satisfactory completion of all necessary due diligence on the Administrative AgentBorrower, its business and the Collateral, as Lender may deem necessary or appropriate, including, without limitation, the following, each, as applicable, duly executed and delivered to Lender:
(a) this Agreement (including all schedules and exhibits hereto);
(b) a Note representing the Initial Advance;
(c) an Officer’s Certificate of Borrower certifying to the following: (i) incumbency; (ii) Organizational Documents; and (iii) borrowing resolutions of Borrower;
(d) a Good Standing Certificate from the State of Delaware (and an equivalent certificate from each jurisdiction where Borrower is authorized to do business);
(i) This duly executed Account Control Agreements covering each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) evidencing, that Lender has “control” (as such term is defined in the Code) of or an otherwise perfected lien on each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) and (ii) any additional bank or account documentation necessary and sufficient to provide Lender (or an agent thereof) with access to and rights in each of the Collections Account and the Operating Accounts (and any other Secured Bank Account) in accordance with the terms hereof and any corresponding Account Control Agreement;
(iif) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment[reserved;]
(iiig) The the Patent, Trademark and Copyright Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viiih) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventorythe Warrant;
(i) a Subordination Agreement, in form and substance reasonably satisfactory to the Administrative Agent Lender, among Agility Capital II, LLC, Lender and completed by auditors and appraisers selected by the Administrative AgentBorrower;
(ixj) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Groupa current Monthly Reporting Package;
(xk) The legal opinion Code lien, judgment, bankruptcy and tax lien searches of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower, reasonably satisfactory to Lender and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Groupits counsel;
(xil) The duly executed Request for Advance for the initial Advance of the Loansinsurance certificates, endorsements and related information required under Section 6.4 hereof;
(xiim) A duly executed Borrowing Base Certificate dated as of Lockbox Agreement, provided that the Lockbox is not already covered by the Account Control Agreement Date and calculated as of July 5, 2008governing the Collections Account;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (An) a copy of Certificate of Incorporation or Formation of such Borrower Party certified payoff letter from Pacific Western Bank and evidence reasonably acceptable to Lender that, substantially simultaneous with the Initial Advance, Pacific Western Bank shall be true, complete paid in full and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among evidencing the shareholders of such Indebtedness owing by Borrower Party to which such Borrower Party is a party Pacific Western Bank shall be terminated and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any all Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Datethereunder released; and
(xxiiio) All such other documents agreements, including, but not limited to any subordination agreements, documents, and completion of such other matters, including but not limited to the payoff of any prior existing Indebtedness and corresponding releases, and/or additional information (which may include items delivered to Lender in connection with any Escrow Agreement and the transactions contemplated thereunder), as the Administrative Agent Lender may reasonably request, certified by an appropriate governmental official deem necessary or an Authorized Signatory if so requestedappropriate.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Bank to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Term Loan is subject to the prior fulfillment of each of condition precedent that the following conditions:
(a) The Administrative Agent Bank shall have received each and every one of the following, following in form and substance satisfactory to the Administrative AgentBank:
(a) Each of the Loan Documents shall be in full force and effect;
(b) The representations and warranties of the Borrowers set forth herein shall be true and correct as of the date of the first Advance and the date the Term Loan is made as if made on and as of such date, and the request for an Advance by the Borrowers and the making of the Term Loan shall be deemed a representation and warranty by the Borrowers to such effect;
(c) No Default or Event of Default has occurred and is continuing as of the date of the first Advance or the date the Term Loan is made;
(d) There is and has been no material adverse change in the either Borrower's financial condition, results of operations, business prospects or otherwise which would, in the judgment of the Bank, impair such Borrower's ability to repay all or any portion of the Notes;
(e) No further action, including any filing or recording of any agreement, document or instrument, is necessary to establish and perfect the Bank's lien and priority in the Collateral;
(f) The Borrowers shall submit to the Bank, all reports and documents required to be submitted to the Bank by the Borrowers pursuant to Section 5.8 of this Agreement;
(g) An originally executed copy of this Agreement, the Line of Credit Note, the Term Note and each of the other Loan Documents;
(h) A copy of the certificate of incorporation and by-laws of each Borrower, certified as a true copy by the Secretary of each Borrower and the Secretary of State of each Borrower's state of incorporation;
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan good standing certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory Borrower issued as of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct recent date by the Secretary of State of each state in which such Borrower is required to be authorized to do business;
(j) A certificate of the State Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower Party’s incorporation or formation, (B) authorized to sign each of the Loan Documents to which such Borrower is a true, party and a true and complete and correct copy of the Byeach Borrower's by-Laws of such Borrower Party, laws;
(Ck) a true, complete and correct A copy of the resolutions approved by the Board of such Directors of each Borrower Party authorizing the execution, delivery and performance by such Borrower Party of each of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party party, certified as a true copy by the Secretary of the Borrower and plans such other resolutions and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for authorizations as the grant, issuance or sale of Equity Interests of such Borrower PartyBank may reasonably request;
(xivl) A Solvency Certificate executed by an Authorized Signatory written opinion of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect counsel to the incurrence Borrowers with respect to such matters as the Bank shall request;
(m) An originally executed copy of a Borrowing Base Certificate from each Borrower dated as of a date not more than three (3) days prior to the date of the initial Advance and the issuance of the initial Letter of Credit hereunderAdvance;
(xvn) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect Evidence reasonably satisfactory to the financial statements for Bank that the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, Collateral is properly insured in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection accordance with the removal provisions of this Agreement and that the Collateral is not subject to any Liens (Lien other than Permitted Liens);
(o) Evidence reasonably satisfactory to the Bank that all filings, recordings and other actions that are necessary or desirable in order to establish and perfect the Bank's security interest in the Collateral as a valid perfected first priority security interest shall have been duly effected, including, without limitation, all tax Liens, against the assets filing of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative AgentUCC-1 financing statements, and the Lenders in connection with the execution and delivery filing or recordation of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably requestBank shall deem necessary or desirable, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each all in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.Bank, and all fees, taxes and other charges relating to such filings and recordings shall have been paid by the Borrowers;
(fp) The Administrative Agent Bank shall have received a Borrowing Base Certificateperformed to its satisfaction, an audit of all Accounts Receivable, general ledgers, Inventory and corporate records of the Borrowers;
(q) A fully executed copy of the Asset Purchase Agreement, in form and substance satisfactory to the Lender GroupBank;
(r) Evidence satisfactory to the Bank that the United States Bankruptcy Court for the Southern District of Florida has issued a final and nonappealable order approving the Asset Purchase Agreement and the transactions contemplated thereby;
(s) Payment in full of all obligations outstanding under the Loan and Security Agreement between Sel-Leb and the Bank, reflecting thatdated November 6, among other things1995, as amended (the "Original Loan Agreement"), and the Line of the Agreement DateCredit Note executed and delivered in connection therewith, after giving effect as amended;
(t) Evidence satisfactory to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 Bank that its obligation to make Advances (with trade payables being paid currently, expenses and liabilities being paid as defined in the ordinary course of business and without acceleration of sales and without deterioration in working capital).Original Loan Agreement) under the Original Loan Agreement has been terminated; and
(gu) The Administrative Agent Such other documents and information as the Bank shall have completed such other business reasonably request, including without limitation UCC, judgment, tax lien and franchise tax searches, leases for all locations at which the Borrowers operate and landlord waivers for all locations at which Collateral is located, in form and substance reasonably satisfactory to the Bank, and all legal due diligence matters and documents with respect to the Borrowers and the results thereof transactions contemplated by this Agreement shall be acceptable satisfactory to counsel for the Administrative AgentBank. In the event each and every condition precedent set forth in this Paragraph 6.1 is not satisfied in full on or before October 31, 1997, then the Bank may, in its it sole and absolute discretion, terminate this Agreement and if this Agreement is so terminated the Bank shall have no further obligation to make the Revolving Loan or the Term Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Sel-Leb Marketing Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) duly executed signature pages to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents;
(ixb) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Each Real Goods Borrower’s Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory good standing certificates of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of each State in which Borrower is organized or incorporated, together with a certificate of foreign qualification from the State applicable authority in each jurisdiction in which Borrower is so qualified, in each case dated as of a date no earlier than thirty (30) days prior to the Effective Date;
(c) duly executed signature pages to the Secretary’s Certificate with completed Borrowing Resolutions for each Borrower;
(d) the Subordination Agreement by Gaiam, Inc. in favor of Bank, together with the duly executed signature pages thereto;
(e) the Subordination Agreement by Riverside Partners, LLC in favor of Bank, together with the duly executed signature pages thereto;
(f) evidence satisfactory to Bank that each of the Prior Lenders has been paid in full;
(g) the Liens securing Indebtedness owed by Borrower to Prior Lenders, as applicable, will be terminated and (ii) the documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Advance, be terminated;
(h) certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Advance, will be terminated or released;
(i) the Perfection Certificates of each Real Goods Borrower Party’s incorporation or formationand Secured Guarantor, together with the duly executed signature pages thereto;
(Bj) a truelegal opinion of Borrower’s counsel, complete with regard to formation and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party authorization of the Loan Documents and authorizing the borrowings or guarantywith regard to each Real Goods Borrower, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members Bank, in its reasonable discretion, dated as of the Lender Group.Effective Date together with the duly executed original signature pages thereto;
(dk) The Lender Group shall have received duly executed original signature pages to the Guaranty;
(l) duly executed original signature pages to the Security Agreement;
(m) duly executed signature pages to the Secretary’s Certificate with completed Guaranty Resolutions for Secured Guarantor;
(n) the Pledge Agreement, together with the duly executed signature pages thereto and any certificates and stock powers required to be delivered in connection therewith;
(o) duly executed signature pages to a certificate of a Responsible Officer of Borrower certifying that the executed merger documents and post-closing organizational chart provided to Administrative Agent are true and complete copies;
(p) evidence satisfactory to them Bank that all Necessary Authorizations the insurance policies required by Section 6.7 hereof are in full force and effect effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses and are not subject cancellation notice to any pending Bank (or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to endorsements reflecting the initial Advance hereunder, and the Lender Group shall have received a certificate same) in favor of an Authorized Signatory Bank;
(q) payment of the Administrative Borrower so statingfees and Bank Expenses then due as specified in Section 2.4 hereof.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Real Goods Solar, Inc.)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender shall not be obligated to make the initial any Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of hereunder until the following conditionsconditions have been satisfied, in the sole discretion of, or waived in writing by, the Deal Agent:
(a) The Administrative Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto.
(b) The Lockbox Control Agreement shall have been duly executed by, and delivered to, the parties hereto and thereto and the Deal Agent shall have received such other documents, instruments, agreements and legal opinions with respect to the Lockbox Control Agreement as the Deal Agent shall request, each of the following, in form and substance satisfactory to the Administrative Deal Agent:.
(ic) This duly executed Agreement;The Deal Agent shall have completed, to its satisfaction, the audit contemplated by Section 2.16(c) and shall have notified the Borrower, the Originator and the Servicer, in writing, that it shall begin to fund.
(iid) A duly executed Revolving Loan Note to The Deal Agent and the order of each Lender requesting Trustee shall have received the initial Contract List, certified by a promissory note in the amount of such Lender’s Revolving Commitment Ratio Responsible Officer of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower PartiesOriginator, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing an Assignment Agreement substantially in the issued and outstanding shares form of capital stock pledged Exhibit A to the Administrative Agent pursuant to the Security Purchase Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(be) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group Deal Agent shall have received a certificate of an Authorized Signatory a Responsible Officer of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members a Responsible Officer of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are Servicer substantially in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate form of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative AgentExhibit G attached hereto.
(f) The Administrative Deal Agent shall have received a Borrowing Base Certificateexecuted powers of attorney in the form of Exhibit H hereto from the Servicer, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date Originator and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Borrower.
(g) The Administrative Deal Agent, the Lender and the Hedge Counterparty shall have received legal opinions acceptable (in their sole discretion) to the Lender, the Hedge Counterparty and the Deal Agent from Dechert LLP as the Deal Agent may request.
(h) The Deal Agent shall receive evidence satisfactory to it that, on or before the Initial Advance Date, UCC-l financing statements and UCC-3 terminations have completed been or are being filed in each office in each jurisdiction in which such financing statements are required (i) to perfect the first priority security interests created by the Purchase Agreement reflecting the interest of the Borrower in the Asset Pool and the proceeds thereof, and (ii) to perfect the first priority security interests created by the Note Purchase Agreement of the Trustee on behalf of the Secured Parties in the Asset Pool and the proceeds thereof.
(i) The Deal Agent shall, as of the Initial Advance Date, have been furnished with such other business documents and legal due diligence opinions (including executed copies, addressed to it or otherwise expressly allowing it to rely thereon of such documents or opinions) delivered to any other person in connection with respect the Note Purchase Agreement, or the other Transaction Documents and the transactions contemplated hereby and thereby as it may reasonably require, and all documents and opinions as well as actions and proceedings taken by the Borrower in connection with the Transaction Documents satisfactory in form and substance to the Borrowers Deal Agent and the results thereof shall be acceptable to the Administrative Agent, in its sole discretioncounsel.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Tranche A Loan Note to the order of each Lender requesting same in the amount of such Lender’s pro-rata share (based on its Tranche A Commitment Ratio) of the Tranche A Loan Commitment, and a duly executed Tranche B Loan Note to the order of each Lender requesting same in the amount of such Lender’s pro-rata share (based on its Tranche B Commitment Ratio) of the Tranche B Loan Commitment;
(iii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note same in the amount of such Lender’s Revolving Commitment Ratio pro-rata share of the Revolving Loan CommitmentCommitment and a duly executed Swing Loan Note payable to the order of the Swing Bank;
(iiiiv) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blankBorrower;
(v) The Trademark Security Agreement, duly executed Blocked Account Agreements required by Section 6.15the Borrower;
(vi) The Fee Letter Parent Pledge Agreement duly executed by the BorrowersHoldings and Intermediate;
(vii) The Parent Guaranty duly executed Post-Closing Agreementby Holdings and Intermediate;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentThe duly executed Blocked Account Agreements;
(ix) The legal opinion of King & Spalding LLPMortgages (fee or leasehold, counsel as applicable) with respect to all Owned Properties and all Leased Properties identified on Schedule 3.1(ix) other than the Borrower Parties, addressed to the Lender GroupPost-Closing Leased Properties;
(x) A title insurance commitment (the “Title Insurance Commitment”) with respect to each Owned Property issued by the Title Company (or another title company acceptable to Agent) in such form and amount as is acceptable to Agent insuring that each such Mortgage is a valid first priority Lien on the Borrower’s interest in such Owned Property subject only to Permitted Exceptions and containing such endorsements and affirmative insurance as Agent may reasonably require and which are obtainable at commercially reasonable rates in the applicable jurisdiction, and true copies of each document, instrument or certificate required by the terms of each such policy and/or Mortgage to be filed, recorded, executed or delivered in connection therewith;
(xi) A Borrower’s affidavit with respect to each property for which a Mortgage is delivered hereunder and such other documents and certificates as Agent shall reasonably require, in each case in form and substance satisfactory to the Title Company, as applicable, and the Agent;
(xii) A duly executed environmental indemnity agreement in form and substance satisfactory to the Agent;
(xiii) Title search reports with respect to each Leased Property identified on Schedule 3.1(ix), other than the Post-Closing Leased Properties, issued by the Title Company (or other title company acceptable to Agent) showing only Permitted Exceptions;
(xiv) Duly executed UCC-1 Financing Statements under the applicable Uniform Commercial Code, or other filings under applicable law, to be filed in connection with each Mortgage in form and substance satisfactory to the Agent to perfect the Lien created by the Mortgage;
(xv) An environmental Phase I report with respect to each Owned Property dated not earlier than twelve (12) months prior to the Agreement Date, satisfactory in all respects to the Agent from an independent firm acceptable to the Agent,
(xvi) A report of ENVIRON International Corp. with respect to all Leased Properties located in California regarding its review of regulatory environmental site data bases;
(xvii) Landlord Consents in form and substance satisfactory to the Agent from the Landlords of at least twelve (12) of the Leased Properties identified in Columns C and D of Part 1 of Schedule 3.1(ix);
(xviii) Evidence that notice of the Mortgages has been delivered to the Landlords of the Leased Properties identified in Column A of Part I and Part II of Schedule 3.1(ix);
(xix) The legal opinion of (A) ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Borrower, in form and substance satisfactory to the Agent;
(xx) A copy of the legal opinion of Parker, Poe, ▇▇▇▇▇ LLP & ▇▇▇▇▇▇▇▇▇, LLP, counsel to Advantica and the Seller, or other counsel of Advantica and the Seller, and a reliance letter with respect thereto in favor of the Agent in form and substance satisfactory to the Agent;
(Bxxi) Legal opinions of local counsel to the Borrower in California, Arizona, Nevada and Texas, in form and substance satisfactory to the Agent;
(xxii) Any legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇, P.A., local ▇▇▇▇▇▇ or other counsel to American Securities delivered in connection with the Borrower PartiesPurchase Agreement, addressed and a reliance letter with respect thereto in favor of the Agent, in form and substance reasonably satisfactory to the Lender GroupAgent;
(xixxiii) The duly executed Request for Advance for the initial Advance of the LoansLoans which initial Advance shall not exceed $80,000,000 and a duly executed Request for Issuance of Letter of Credit;
(xiixxiv) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5November 24, 20081999;
(xiiixxv) A loan certificate signed by an Authorized Signatory of each the Borrower Partyin substantially the form of Exhibit R attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Partythe Borrower, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation or Formation of such the Borrower Party certified to be true, complete and correct by the Secretary of State of for the State of such Borrower Party’s incorporation or formationDelaware, (B) a true, complete and correct copy of the By-Laws of such Borrower Partythe Borrower, (C) a true, complete and correct copy of the resolutions of such the Borrower, authorizing the borrowing hereunder and the execution, delivery and performance by the Borrower Party of the Loan Documents, and (D) certificates of good standing from California, Nevada, Texas and Arizona;
(xxvi) A loan certificate signed by an Authorized Signatory of each of Holdings and Intermediate in substantially the form of Exhibit S attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of each of Holdings and Intermediate, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of the Certificate of Incorporation of each of Holdings and Intermediate certified to be true, complete and correct by the Secretary of State for the State of Delaware, (B) a true, complete and correct copy of the By-Laws of each of Holdings and Intermediate, (C) true, complete and correct copy of the resolutions of each of Holdings and Intermediate, authorizing the execution, delivery and performance by such Borrower Party each of Holdings and Intermediate of the Loan Documents to which they are a party, and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyDelaware;
(xivxxvii) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent the Borrower, in form and its Subsidiariessubstance satisfactory to the Agent;
(xxviii) A copy of the executed Purchase Agreement, together with all exhibits and schedules thereto, accompanied by the certificate of a pro forma balance sheet giving effect senior officer of the Borrower as to the incurrence consummation of the initial Advance Acquisition and the issuance of the initial Letter of Credit hereundercertain other matters;
(xvxxix) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement A copy of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009the other executed Purchase Documents relating to the Acquisition;
(xvixxx) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the Projected financial statements for EPL for (A) the eight-2000 fiscal year on a month transition period ended February 2by month basis, 2008(B) the 2001, audited by independent public accountants of recognized national standing2002 fiscal years on a quarterly basis, and (C) for the 2003 and 2004 fiscal years on an annual basis;
(xviixxxi) Certificates Copies of certificates of insurance and loss payable endorsements the related insurance policies with respect to the Borrower Parties, in each case, and meeting the requirements of Section 6.55.5 hereof;
(xviiixxxii) PayCopies of any pay-off letters, termination statements, canceled mortgages and the like reasonably required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, ) against the assets of the Borrower PartiesEPL;
(xixxxxiii) Lien search results satisfactory to the Agent with respect to the Borrower Parties Holdings, Intermediate and EPL from all appropriate jurisdictions and filing offices;
(xxxxxiv) Evidence satisfactory to Copies of the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)forms of Franchise Agreements;
(xxixxxv) No change in the business, assets, management, operations, financial condition or prospects of EPL shall have occurred since July 28, 1999, which change, in the reasonable judgment of the Agent and the Lenders, will have a Material Adverse Effect;
(xxxvi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates affiliates of the Administrative Agent, and the Lenders for which invoices have been delivered to the Borrower in connection with the execution and delivery of this Agreement, including, without limitation, reasonable fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixxxvii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Agent and the Lenders shall have received evidence reasonably satisfactory to them that no change in the business assetsAgent and the Lenders that, managementon the Agreement Date, operations or financial condition of the Borrower Parties American Securities shall have occurred since February 2, 2008, which change has had or could be reasonably expected made a capital contribution to have a Materially Adverse Effect, Holdings and the Lender Group Intermediate in an aggregate amount of at least $38,000,000 and management of EPL shall have received made a certificate capital contribution to Holdings and Intermediate in an aggregate amount of an Authorized Signatory of the Administrative Borrower so stating.at least $750,000;
(c) The Lender Group shall have received Agent and the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group Lenders shall have received evidence reasonably satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default or Event of Default exists, after giving effect to the initial Advance Advance, hereunder, and the Lender Group Agent and the Lenders shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(d) The Agent shall have received evidence that all governmental consents to the Acquisition have been obtained, and other evidence reasonably satisfactory to the Agent that the Acquisition will be consummated on terms satisfactory to the Agent immediately following the initial Advance of the Loans hereunder as of the Agreement Date;
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that arrangements are in place with sources acceptable to the Agent for the outsourcing of transitional services for the Borrower, including, but not limited to, accounting, information management, purchasing and procurement and employee benefit, in each case for a period of not less than twelve (12) months;
(f) The Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming signed by the respective Borrower Parties Borrower, Intermediate or Holdings as debtor and naming the Administrative Agent as secured party have been duly filed (or are duly executed and ready for filing) in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.;
(fg) The Administrative Agent shall have received a Based on the Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, Certificate dated as of the Agreement DateNovember 24, 1999, after giving effect to the borrowings Advances hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability the Borrower shall have not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).5,000,000 available to be borrowed hereunder;
(gh) The Administrative Agent shall have completed such received evidence satisfactory to it that as of November 24, 1999, EPL’s Adjusted EBITDA for the four fiscal quarter period then ended, adjusted to eliminate the expense associated with non-recurring management incentive payments of at least $1,300,000 and other business and legal due diligence with respect non-recurring expenses, is equal to or greater than $23,700,000; and
(i) The Agent shall have received a duly executed copy of the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionContingent Equity Contribution Agreement.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations At the time of --------------------------------------- the Lenders to undertake making by the Revolving Loan Commitments and to make Bank of the initial Advance hereunder, all obligations of the Borrower to the Bank incurred prior to the initial Advance (including, without limitation, the Borrower's obligation to reimburse the fees and disbursements of counsel to the Bank and any fees payable to the Bank on or prior to such date) shall have been paid in full, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent Bank shall have received the following, each dated as of the followingdate of the initial Advance, in form and substance satisfactory to the Administrative AgentBank:
(i) This duly executed Agreement;
(iia) A duly executed Revolving Loan Note payable to the order of each Lender requesting a promissory note the Bank in the principal amount of such Lender’s Revolving Commitment Ratio the Commitment.
(b) Copies of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by organizational papers of each of the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated Guarantor certified as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete true and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationits incorporation, (B) a true, complete and correct copy certificates from the Secretaries of State of the By-Laws State of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets incorporation of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders Guarantor certifying their respective good standing as a corporation in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingStates.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members Certified copies of the Lender Groupby-laws of the Borrower and Guarantor, of resolutions of the Board of Directors of the Borrower approving this Agreement and the Note and the borrowings hereunder, of resolutions of the Board of Directors of the Guarantor approving the Guaranty and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Note and the Guaranty.
(d) The Lender Group shall have received evidence satisfactory A certificate of the Secretary or Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, execute this Agreement and the Lender Group shall have received Note and the other documents to be delivered by it hereunder and a certificate of an Authorized Signatory the Secretary or Assistant Secretary of the Administrative Borrower so statingGuarantor certifying the names and true signatures of the officers of Guarantor authorized to execute the Guaranty and the other documents to be delivered by it hereunder.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentexecuted Guaranty.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory Favorable written opinions of counsel for the Borrower with respect to the Lender Groupmatters set forth in Sections 4.01, reflecting that4.02, among other things4.03, as 4.04, 4.08, 4.10 and 4.11 of this Agreement and of counsel for the Guarantor with respect to the matters set forth in Sections 1.01, 1.02, 1.03, 1.04, 1.08 and 1.10 of the Agreement DateGuaranty, after giving effect and covering such additional matters relating to the borrowings hereunder on transactions contemplated hereby as the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Bank may reasonably request.
(g) The Administrative Agent All corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all Loan Documents and other documents incident thereto or delivered in connection therewith shall have completed such other business be satisfactory in form and legal due diligence with respect substance to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionBank.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders Lender to undertake the Revolving Loan Commitments and to make fund the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Lender in its sole discretion, of each of the following conditions:
(a) The Administrative Agent representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects (except for representations and warranties which contain materiality qualifiers, which shall be true and correct in all respects) on and as of the date of initial funding, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date);
(b) No Default shall have occurred and be continuing on the date of the funding nor shall either result from the making of the funding;
(c) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the making of such funding shall have been issued and remain in force by any governmental authority against Borrower, Guarantor, Lender, or any of their Affiliates;
(d) Lender shall have received each of the followingLoan Documents, duly executed by all parties thereto, and each such document shall be in full force and effect;
(e) The absence of any action, suit, investigation or proceeding pending or threatened in any court, arbitrator, or governmental authority which, in form the Lender's sole opinion, could have a material adverse effect on operations, any of the Collateral or ability of the Borrower or Guarantor to perform all of their respective obligations and substance undertakings under the Loan Documents;
(f) Borrower shall have provided evidence reasonably satisfactory to Lender that its lien in the Administrative Agent:Collateral is a lien of first-priority;
(g) Lender shall have received a certificate from an authorized officer of Borrower, as required, attesting to the resolutions of Borrower's governing body authorizing its execution and delivery of all of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers, managers or members of Borrower to execute same;
(h) Lender shall have received copies of Borrower's formation documents and any operating agreements or member agreements, as amended, modified, or supplemented to the Closing Date, certified as being true, correct and complete by the authorized officers of Borrower;
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including shall have received a certificate of incumbency good standing with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State its state of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of which certificate shall indicate that such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of entity is in good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xviij) Certificates Borrower shall have executed and delivered to Lender a Borrowing Base Certificate;
(k) Borrower shall have confirmed to Lender that each property encumbered by a Note Mortgage and securing an Eligible Note is insured by a policy of casualty insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.56.12 hereof;
(xviiil) Pay-off lettersLender shall have received the copies of the policies of insurance, termination statementstogether with the endorsements thereto, canceled mortgages and the like as are required by Section 6.12 hereof, the Administrative Agent in connection with the removal form and substance of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Partieswhich shall be reasonably satisfactory to Lender;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxim) Payment of all Lender's fees and reimbursable costs and expenses payable to due under this Agreement through the Administrative Agent, the Affiliates date of the Administrative Agentinitial Advance, including without limitation all reasonable, documented legal expenses, filing and recording fees, incurred through the Lenders in connection with date of the execution and delivery closing of this Agreement, including, without limitation, fees and expenses of counsel shall have been made to the Administrative AgentLender;
(xxiin) Evidence Borrower is licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification reasonably necessary, shall have been made to Lender;
(o) A flow Customer Identification Information Form and such other forms and verification as Lender may need to comply with the Patriot Act and other applicable laws and regulations;
(p) No material adverse change shall have occurred relative to Borrower, Borrower's business activities, operations and projections, the Collateral, or the liens, security interest, or rights of funds report duly executed Lender;
(q) The receipt of all governmental licenses, approvals and consents and all third party consents deemed reasonably necessary or appropriate by the Administrative Lender;
(r) Evidence that Borrower which report shall include is a statement of all sources and uses of funds on member in good standing with MERS, will utilize the Agreement DateMERS System with respect to each Mortgage Loan that constitutes Collateral, will provide Lender with electronic access to Mortgage Loans that constitute Collateral under MERS Electronic Tracking Gestation Agreement; and
(xxiiis) All such Such other documents as the Administrative Agent may reasonably requestdocuments, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effectinstruments, and the writings as Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretionreasonable discretion may require.
Appears in 1 contract
Sources: Loan and Security Agreement (Angel Oak Mortgage, Inc.)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and under the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Commitment is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) This duly executed AgreementNotes;
(ii) A duly executed Revolving Loan Note opinions of corporate and special FCC counsel to the order of Borrower and the Restricted Subsidiaries, addressed to each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors the Lenders, dated the Agreement Date, and appraisers selected by the Borrower hereby instructs such counsel to deliver such opinions to the Administrative AgentAgent and the Lenders;
(ixiii) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance loan certificate of the Loans;
(xii) A duly executed Borrowing Base Certificate dated Borrower, in substantially the form attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyExhibit E, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, include without limitation, the followingfollowing items: (A) a copy of the Certificate of Incorporation or Formation of such Borrower Party the Borrower, certified to be true, complete and correct by the Delaware Secretary of State of the State of such Borrower Party’s incorporation or formationState, (B) a true, complete and correct copy of the By-Laws Bylaws of such Borrower Partythe Borrower, as in effect on the date hereof, (C) a true, complete and correct copy of the resolutions of such the Borrower Party authorizing the execution, delivery and performance by such Borrower Party of this Agreement and the other Loan Documents and authorizing to which the borrowings or guaranty, as applicable, hereunderBorrower is party, (D) certificates of good standing from each jurisdiction in which such Borrower Party does businessappropriate jurisdictions for the Borrower, and (E) copies a true and correct list of all agreements among Licenses granted to the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Restricted Subsidiaries, together with all amendments thereto through the date hereof and certified to be in full force and effect, (F) a pro forma balance sheet giving effect true and correct list of all Pole Agreements granted to the incurrence of the initial Advance Borrower and the issuance of Restricted Subsidiaries, together with all amendments thereto through the initial Letter of Credit hereunderdate hereof and certified to be in full force and effect;
(xviv) Parent a Master Assignment and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows Assumption Agreement among the Prior Lenders and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009the Lenders;
(xviv) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements projections with respect to the Borrower Parties, in each case, and the Restricted Subsidiaries;
(vi) a letter from New Jersey counsel to the Borrower with respect to regulatory issues;
(vii) a duly executed Certificate of Financial Condition of the Borrower;
(viii) copies of insurance binders or certificates covering the assets of the Borrower and the Restricted Subsidiaries and otherwise meeting the requirements of Section 6.55.5 hereof;
(xviiiix) Pay-off lettersopinion of Powell, termination statementsGoldstein, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect special counsel to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory Arranging Agents, addressed to the Administrative Agent that and the Liens granted pursuant Lenders, and the Arranging Agents hereby instruct such counsel to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable deliver such opinion to the Administrative Agent, the Affiliates of the Administrative Agent, Agent and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement DateLenders; and
(xxiiix) All all such other documents as the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Lenders shall have received evidence reasonably satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, Administrative Agent and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them Lenders that all Necessary Authorizations Authorizations, including all necessary consents to the closing of this Agreement from the grantors of the Licenses, have been obtained or made, are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group Administrative Agent and the Lenders shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Administrative Agent and the Lenders shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties such fees as debtor are due and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory payable to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder them on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(gd) The Administrative Agent There shall not have completed occurred any event which could have or which has had a Materially Adverse Effect since December 31, 1997, except for any such other business and legal due diligence with respect to event affecting the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretioncable television industry generally.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Lender, of each of the following conditionsconditions precedent on or before the Closing Date:
(a) The Administrative Agent Lender shall have received each of the followingfollowing documents, in form each dated the Closing Date and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLender:
(i) duly executed counterpart of this Agreement;
(ixii) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Groupany UCC financing statement;
(xiii) The legal opinion duly executed Control Agreement and all documents contemplated thereby;
(iv) duly executed Customer Account Agreement and all documents contemplated thereby;
(v) duly executed Custody Agreement;
(vi) certified copies of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and the Organization Documents (Bincluding any amendments or supplements thereto) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationBorrower, (B) a true, complete resolutions authorizing and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing approving the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, includingthe Control Agreement, without limitationthe Customer Account Agreement and the Advances hereunder, fees (C) the Investment Advisory Agreement between Borrower and expenses Investment Adviser, and (D) documents evidencing all other company action, governmental approvals and third-party consents required to effectuate this transaction, if any, with respect to this Agreement, and any other Facility Document;
(vii) certificates of Borrower and Investment Adviser certifying the names and true signatures of the Responsible Officers of Borrower and Investment Adviser authorized to sign this Agreement, any other Facility Documents, or any other document to be delivered hereunder or thereunder;
(viii) copies of the Organization Documents (including any amendments or supplements thereto, but excluding the operating agreement or the equivalent) of Investment Adviser certified as of a recent date not more than thirty (30) days prior to the Closing Date;
(ix) certificates evidencing the good standing of Borrower and Investment Adviser in its jurisdiction of formation and each other material jurisdiction where it is qualified to do business dated a date not earlier than ten (10) Business Days prior to the Closing Date as to the good standing of Borrower and Investment Adviser;
(x) an opinion of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources in form and uses of funds on the Agreement Datesubstance reasonably satisfactory to Lender; and
(xxiiixi) All such other documents as the Administrative Agent may results of Lien searches on Borrower in Delaware, obtained by and reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requestedsatisfactory to Lender.
(b) The Lender Group shall have received evidence reasonably satisfactory to them Lender that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change Collateral Account has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.been established;
(c) The evidence reasonably satisfactory to Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable that Borrower has offered to the members purchase 100% of the Lender Group.its outstanding AMPS either by tender or redemption;
(d) The Lender Group shall have received evidence reasonably satisfactory to them Lender that all Necessary Authorizations are Borrower or any of its Affiliates has made the public disclosure regarding the tender or redemption of the AMPS and such public disclosure contains a statement acceptable to Lender detailing (i) the use of the proceeds of this Facility to satisfy, in full force and effect and are whole or in part, the purchase price or redemption of the AMPS, (ii) any BofAML Entity’s potential ownership of the AMPS (which it may or may not subject deliver into the offer to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to purchase by tender financed with the initial Advance hereunderproceeds of this Facility), and the Lender Group shall (iii) any other material relationship or related party transaction that Borrower may have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.with any BofAML Entity; and
(e) The Administrative Agent all fees required to be paid on or before the Closing Date shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agentpaid by Borrower.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Margin Loan Agreement (Advent Claymore Convertible Securities & Income Fund)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of Lender’s determination that each of the following conditionsconditions precedent has been satisfied:
(a) The Administrative Agent shall have received each Receipt by Lender of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly fully executed AgreementAdvance Request;
(iib) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentThe Coverage and LTV Tests are satisfied;
(iiic) The If the Initial Advance includes a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap Colonial/PNC ARCS — Master Credit Facility Agreement commitment, in accordance with the Cap Security Agreement duly executed by Agreement, effective as of the Borrower Parties, together with Uniform Commercial Code financing statements related theretoInitial Closing Date;
(ivd) Original stock certificates evidencing If the issued and outstanding shares Initial Advance includes a Variable Advance, receipt by Lender of capital stock pledged to Interest Rate Cap Documents in accordance with the Administrative Agent pursuant to the Cap Security Agreement, together with stock powers or other appropriate instruments effective as of transfer executed in blankthe Initial Closing Date;
(ve) The Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Loan Documents required by Lender, including duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by and delivered original copies of the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of all Accounts and Inventorythe Collateral comprised of personal property, and completion of satisfactory appraisals of all Inventoryother appropriate instruments, in form and substance reasonably satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent and completed by auditors and appraisers selected opinion of Lender to perfect the Liens created by the Administrative Agentapplicable Security Instruments and any other Loan Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(ixf) The legal opinion Receipt by Lender of King & Spalding LLPany required subordination, counsel non-disturbance and attornment agreements and/or estoppel certificates with respect to any commercial leases affecting the Borrower Parties, addressed to the Lender GroupInitial Mortgaged Property;
(xg) The legal opinion If the Initial Advance is a Variable Advance, receipt by Lender of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Groupfirst installment of Variable Facility Fee;
(xih) The duly executed Request for Advance for the initial Advance Receipt by Lender of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into Initial Origination Fee pursuant to or in connection with a disclosed planSection 10.02(a) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted Initial Due Diligence Fee pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted LiensSection 10.03(a);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiii) All such other documents as the Administrative Agent may reasonably request, certified Delivery by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition Borrower of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected confirmed Rate Form for the Initial Advance pursuant to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital2.01(c).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Credit Facility Agreement (Colonial Properties Trust)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Bank’s obligation to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent condition precedent that Bank shall have received each of the followingreceived, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of Bank, such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventorydocuments, and completion of satisfactory appraisals of all Inventorysuch other matters, in form and substance as Bank may reasonably satisfactory deem necessary or appropriate, including, without limitation:
(a) Borrower shall have delivered duly executed original signatures to the Administrative Agent and completed by auditors and appraisers selected by the Administrative AgentLoan Documents to which it is a party;
(ixb) The legal opinion of King & Spalding LLP, counsel Borrower shall have delivered duly executed original signatures to the Borrower Parties, addressed to the Lender GroupControl Agreements;
(xc) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Borrower shall have delivered its Operating Documents and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a good standing certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, Delaware as of a date no earlier than thirty (B30) a true, complete and correct copy of days prior to the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower PartyEffective Date;
(xivd) A Solvency Certificate Borrower shall have delivered duly executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect original signatures to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereundercompleted Borrowing Resolutions for Borrower;
(xve) Parent and its Subsidiaries Bank shall have received certified copies, dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens)initial Advance, including, without limitation, all tax Liens, against the assets of the Borrower Partieswill be terminated or released;
(xixf) Lien search results with respect to Borrower shall have delivered the Borrower Parties from all appropriate jurisdictions and filing officesPerfection Certificate(s) executed by Borrower;
(xxg) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens)Borrower shall have delivered a landlord’s consent executed by Borrower’s landlord in favor of Bank;
(xxih) Payment of all fees and expenses payable Borrower shall have delivered the insurance policies and/or endorsements required pursuant to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative AgentSection 6.5 hereof;
(xxiii) A flow of funds report duly executed by Borrower shall have paid the Administrative Borrower which report shall include a statement of all sources fees and uses of funds on the Agreement DateBank Expenses then due as specified in Section 2.4 hereof; and
(xxiiij) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Bank shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition and approved an audit of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingBorrower’s Collateral.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender shall not be obligated to make the initial any Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of hereunder until the following conditionsconditions have been satisfied, in the sole discretion of, or waived in writing by, the Deal Agent:
(a) The Administrative Agent Transaction Documents shall have received each of the followingbeen duly authorized, in form executed and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed delivered by the Borrower Parties, together with Uniform Commercial Code financing statements related parties thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Deal Agent shall have completed, to its satisfaction, the audit contemplated by Section 2.16(c) and shall have notified the Borrower, the Originator and the Servicer, in writing, that it shall begin to fund.
(c) The Deal Agent and the Trustee shall have received evidence satisfactory to them that no change the initial Contract List, certified by a Responsible Officer of the Originator, together with an Assignment Agreement substantially in the business assets, management, operations or financial condition form of Exhibit A to the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group Purchase Agreement.
(d) The Deal Agent shall have received a certificate of an Authorized Signatory a Responsible Officer of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members a Responsible Officer of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are Servicer substantially in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate form of an Authorized Signatory of the Administrative Borrower so statingExhibit G attached hereto.
(e) The Administrative Deal Agent shall have received confirmation that executed powers of attorney in the original Uniform Commercial Code financing statements naming form of Exhibit H hereto from the respective Borrower Parties as debtor Servicer, the Originator and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative AgentBorrower.
(f) The Administrative Agent Deal Agent, the Lender and the Hedge Counterparty shall have received a Borrowing Base Certificate, legal opinions acceptable (in form and substance satisfactory their sole discretion) to the Lender GroupLender, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date Hedge Counterparty and the issuance of any Letters of Credit hereunder on Deal Agent from Dechert LLP as the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Deal Agent may request.
(g) The Administrative Deal Agent shall receive evidence satisfactory to it that, on or before the Initial Advance Date, UCC-l financing statements and UCC-3 terminations have completed been or are being filed in each office in each jurisdiction in which such financing statements are required (i) to perfect the first priority security interests created by the Purchase Agreement reflecting the interest of the Borrower in the Asset Pool and the proceeds thereof, and (ii) to perfect the first priority security interests created by the Note Purchase Agreement of the Trustee on behalf of the Secured Parties in the Asset Pool and the proceeds thereof.
(h) The Deal Agent shall, as of the Initial Advance Date, have been furnished with such other business documents and legal due diligence opinions (including executed copies, addressed to it or otherwise expressly allowing it to rely thereon of such documents or opinions) delivered to any other person in connection with respect the Note Purchase Agreement, or the other Transaction Documents and the transactions contemplated hereby and thereby as it may reasonably require, and all documents and opinions as well as actions and proceedings taken by the Borrower in connection with the Transaction Documents satisfactory in form and substance to the Borrowers Deal Agent and the results thereof shall be acceptable to the Administrative Agent, in its sole discretioncounsel.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the --------------------------------------- Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received each of the following, in form and substance satisfactory to the Administrative AgentAgent and the Lenders:
(i) This duly executed Agreementthe loan certificate of the Borrower, including a certificate of incumbency with respect to the signature of each Authorized Signatory of the Borrower, which loan certificate shall be in substantially the form of Exhibit D attached hereto, together with the following attachments: (A) a copy of the certificate or articles of incorporation of the Borrower, certified by the Delaware Secretary of State and a copy of the by-laws of the Borrower certified by an Authorized Signatory of the Borrower, (B) good standing certificates for the Borrower, issued by the Secretary of State for the States of Delaware and all other jurisdictions in which the Borrower is required to qualify to do business as a result of the character of its properties or the nature of its business, and (C) a copy of the corporate resolutions of the Borrower authorizing the borrowing hereunder and the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents in accordance with their respective terms and of any other documents contemplated hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentNotes;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel Esq. (in-house counsel) to the Borrower Parties, and its Subsidiaries addressed to each Lender and the Lender Group;Administrative Agent, substantially in the form of Exhibit E hereto; ---------
(xiiv) The duly executed Request for Revolving Credit Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiiv) All all such other documents as the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in All of the business assets, management, operations or financial condition representations and warranties of the Borrower Parties under this Agreement shall have be true and correct, both before and after giving effect to the application of the proceeds of the initial Advance.
(c) Between December 31, 1996, and the date of the initial Advance hereunder, there has occurred since February 2, 2008, no event which change has had or could reasonably be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to Simultaneously with the initial Advance hereunderAdvance, all obligations of the Borrower under the Existing Credit Agreement will be paid in full, whereupon the Existing Credit Agreement shall terminate, and the Lender Group Borrower shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses no further obligations and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)thereunder except those that expressly survive termination thereof.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Credit Agreement (Unitrin Inc)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Lender to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each Receipt by Lender of the followingfully executed Advance Request;
(b) If the Initial Advance is a Variable Advance, receipt by Lender at least five (5) days prior to the Initial Closing Date, of the confirmation of an Interest Rate Cap commitment, in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(c) If the Initial Advance is a Variable Advance, receipt by Lender of Interest Rate Cap Documents in accordance with the Pledge, Interest Rate Cap Agreement, effective as of the Initial Closing Date;
(d) If the Initial Advance is a Fixed Advance, delivery of a Fixed Facility Note, duly executed by Borrower, in the amount and reflecting all of the terms of the Fixed Advance;
(e) Delivery to the Title Company, for filing and/or recording in all applicable jurisdictions, of all applicable Borrower Documents required by Lender, including duly executed and delivered original copies of the Variable Facility Note (if applicable), a Fixed Facility Note (if applicable), the Guaranty, the Initial Security Instruments covering the Initial Mortgaged Properties and UCC-1 Financing Statements covering the portion of the Collateral comprised of personal property, and other appropriate instruments, in form and substance satisfactory to Lender and in form proper for recordation, as may be necessary in the Administrative Agent:
(i) This duly executed Agreementopinion of Lender to perfect the Liens created by the applicable Security Instruments and any other Borrower Documents creating a Lien in favor of Lender, and the payment of all taxes, fees and other charges payable in connection with such execution, delivery, recording and filing;
(iif) A duly executed Revolving Loan Note to If the order of each Initial Advance is a Variable Advance, receipt by Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitmentfirst installment of Variable Facility Fee and the entire Discount payable by Borrower pursuant to Section 1.04;
(iiig) The Security Agreement duly executed Receipt by Lender of the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent Initial Origination Fee pursuant to Section 10.03(a) and the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Initial Due Diligence Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens10.04(a), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiih) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition Satisfaction of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, conditions set forth in Section 2A.01 and Section 6.03A for the maintenance of the Initial Credit Enhancement Instrument and the Lender Group shall have received a certificate of an Authorized Signatory addition of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable Initial Bond Property to the members of the Lender GroupCollateral Pool.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Credit Facility and Reimbursement Agreement (America First Apartment Investors Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and Lender under this Agreement to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunderAdvance, are subject to and conditional upon satisfaction (or waiver by the prior fulfillment Lender) of each all of the conditions precedent set out in Sections 3.1 and 3.3 and the following conditionsconditions precedent being fulfilled to the satisfaction of the Lender by no later than the date that is thirty (30) days following the Closing Date, which conditions precedent are for the sole and exclusive benefit of the Lender:
(a) The Administrative Agent 3.2.1 the Deed of Hypothec, the Securityholder Agreement, the Warrant Agreement, the IQ Warrant Agreement, the certificates representing the Warrants and the Canada Warrants, the Funding Direct Agreements and [redacted – commercially sensitive information], will have been executed and delivered by all parties thereto and each shall have received each of the following, be in form and substance satisfactory to the Administrative Agent:
(i) This duly executed AgreementLender;
3.2.2 the Lender shall have received certificates of status, compliance or good standing (ii) A duly executed Revolving Loan Note to or the order local law equivalent), as applicable, of each Lender requesting a promissory note Obligor and Telesat Parent;
3.2.3 all financing statements or other registrations necessary or desirable to preserve, protect or perfect the enforceability and first priority of the Encumbrances created by the Deed of Hypothec (subject only to Permitted Encumbrances) shall have been filed, entered or recorded in the amount applicable offices of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Partiespublic record, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Lender, acting reasonably;
3.2.4 the Lender shall have received evidence of all insurance required to be maintained pursuant to the Loan Documents as at the Closing Date, naming the Collateral Agent as additional insured and completed by auditors and appraisers selected first loss payee, as applicable;
3.2.5 all Funding Direct Agreements required in connection with the Security Documents will have been obtained from the applicable Core Material Project Contract Counterparties in respect of each Core Material Project Contract subject to such Funding Direct Agreement as determined to be necessary by the Administrative AgentLender, acting reasonably;
3.2.6 all Landlord Access Agreements required in connection with any Leased Immovable Property as at the Closing Date will have been obtained from the applicable third parties as determined to be necessary by the Lender, acting reasonably;
3.2.7 currently dated legal opinions from (ixi) The legal opinion of King & Spalding LLP, counsel to the Borrower PartiesObligors and Telesat Parent, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall includeto, without limitation, the following: (A) a copy Deed of Certificate of Incorporation or Formation of such Borrower Party certified to be trueHypothec, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formationWarrant Agreement, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter Warrants and the common shares issuable upon exercise of Credit hereunder;
the Warrants, the Securityholder Agreement and the Funding Direct Agreements, (xvii) Parent counsel to each Core Material Project Contract Counterparty subject to a Funding Direct Agreement in respect of its respective Core Material Project Contract(s) and its Subsidiaries related Funding Direct Agreement(s)), (aiii) 2008 business plan including its 12 month income statementcounsel, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2to, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this the MDA Agreement, including, without limitation, fees and expenses of (iv) such other special and local counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed as may be reasonably required by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k)Lender, each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Groupand ▇▇▇▇▇▇’s counsel will have been delivered to the Lender and the Collateral Agent as addressees, reflecting that, among other things, as it being acknowledged that the Non-Consolidation Opinions need not be redelivered or updated;
3.2.8 the requirement outlined in prong (a) of the Agreement Date, after giving effect definition of “Independent Entity” shall have been completed and shall be satisfactory to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, Lender in its sole discretion;
3.2.9 the Canada Lender shall have entered into financing arrangements with Export Development Canada pursuant to that certain credit agreement to be entered into between the Canada Lender, as borrower, and Export Development Canada, on behalf of His Majesty in Right of Canada, as lender;
3.2.10 the Borrower will have paid, or arrangements satisfactory to the Lender shall have been made to ensure that the Borrower will pay, all reasonable and documented out-of-pocket expenses (including all reasonable legal fees, Advisor fees and other consultant or advisor fees) incurred by or on behalf of the Lender in connection with this Agreement, the other Loan Documents and the transactions and other documents contemplated by this Agreement;
3.2.11 no transaction, event or other action shall have occurred since the date hereof that would have required the consent of the Lender pursuant to the Securityholder Agreement or the Warrant Agreement had such agreement been entered into on the date hereof; and
3.2.12 the Lender will have received such additional evidence, documents or undertakings as the Lender, acting reasonably, will request to address any new information that arises after the Closing Date and prior to the date of the initial Advance in connection herewith in compliance with the conditions set forth in this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Telesat Corp)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments and Foothill to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are is subject to the prior fulfillment fulfillment, to the satisfaction of Foothill and its counsel, of each of the following conditionsconditions on or before the Closing Date:
(a) The Administrative Agent Each of the conditions set forth in Section 3.1 shall ----------- have been fulfilled or shall have been waived by Foothill;
(b) Foothill shall have received searches reflecting the filing of its financing statements and fixture filings;
(c) Foothill shall have received each of the followingfollowing documents, duly executed, and each such document shall be in form full force and substance satisfactory to the Administrative Agenteffect:
(i) This duly executed the agreement among Borrower, the Concentration Account Bank, and Foothill;
ii) the Mortgages; and
iii) the Trademark Security Agreement;
(iid) A duly executed Revolving Loan Note Foothill shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section ------- 6.8, the form and substance of which shall be satisfactory to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan CommitmentFoothill and its --- counsel;
(iiie) The Security Agreement duly executed Foothill shall have received a mortgagee title insurance policy (or a marked commitment to issue the same) for the Headquarters Property issued by a title insurance company satisfactory to Foothill ("Mortgage Policy") in an amount satisfactory to Foothill assuring Foothill that the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued Mortgage on such Real Property Collateral is a valid and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit enforceable first priority mortgage Lien free and clear of all Accounts defects and Inventoryencumbrances except Permitted Liens, and completion of satisfactory appraisals of all Inventory, the Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;Foothill; and
(ixf) The all other documents and legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent matters in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of transactions contemplated by this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations been delivered or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had executed or could be reasonably expected to have a Materially Adverse Effect, recorded and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date Foothill and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)its counsel.
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan and Security Agreement (Sizzler International Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of No advances under any Facility will be available until the following conditions:
(a) The Administrative Agent shall conditions precedent have been satisfied, unless waived by ▇▇▇▇▇▇: Lender has received each of the followingall Security Documents and all registrations and filings have been completed, in all cases in form and substance satisfactory to the Administrative Agent:
Lender; Borrower and Guarantors (iif any) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each have provided all authorizations and all financial statements, appraisals, budgets, environmental reports and any other information that Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) may require; ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & has received payment of all fees due in respect hereof; Lender is satisfied as to the value of ▇▇▇▇▇▇▇▇▇ LLP 's and Guarantor's (Bif any) assets and financial condition, and Borrower's and Guarantor's (if any) ability to carry on business and repay any amount owed to Lender from time to time; There is no default hereunder or under any Security Document; All representations and warranties hereunder are true and correct in all material respects as if made on such date; ▇▇▇▇▇▇ has received evidence that all insurance required by Lender is in place; ▇▇▇▇▇▇ has received a satisfactory [independent] [Phase I/Phase II] environmental audit with respect to the Project Lands; ▇▇▇▇▇▇ has received a satisfactory geotechnical report with respect to the Project Lands; ▇▇▇▇▇▇ has reviewed and found satisfactory the final detailed construction budget for the Project; ▇▇▇▇▇▇ has received and found satisfactory the Project Monitor's report called for under the section of this agreement entitled "Project Monitor" [delete if no project monitor]; ▇▇▇▇▇▇ has received satisfactory confirmation that the Borrower's Equity Requirement has been injected into the Project; ▇▇▇▇▇▇ has reviewed and found satisfactory the [management agreement, construction contract, bonding contracts] relating to the Project; Lender has received a satisfactory real property report (with evidence of municipal compliance) with respect to the Project Lands as soon as reasonably available from the appropriate municipality; ▇▇▇▇▇▇ has received a clear tax certificate in respect of the Project Lands; No advances will be available under Facility #2 until the following additional conditions precedent have been satisfied, unless waived by ▇▇▇▇▇▇: Lender has received an [update to the] appraisal indicating the present market value of the Project Lands to be not less than $__________; ▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
▇▇▇▇ has received a satisfactory real property report (xiwith evidence of municipal compliance) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for Project Lands; ▇▇▇▇▇▇ has received a satisfactory substantial completion certificate from [the eight-month transition period ended February 2, 2008, audited by Project Monitor/an independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect supervisory engineer/an independent quantity surveyor] relating to the Borrower Parties, in each case, meeting the requirements of Section 6.5Project;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Sources: Loan Agreement
Conditions Precedent to Initial Advance. The effectiveness of the obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are Advances under this Agreement is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each of on or before the Closing Date the following, each dated the Closing Date, in form and substance satisfactory to the Administrative Agent:Agent and in sufficient copies for each Lender (except for the Notes):
(i) This Counterparts of this Agreement, duly executed Agreement;by the Borrower.
(ii) A Notes of the Borrower, duly executed Revolving Loan Note made to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio 's Commitment.
(iii) A certificate of the Revolving Loan Secretary or Assistant Secretary of the Borrower certifying:
(A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes;
(B) that attached thereto are true and correct copies of: (1) its Declaration of Trust, together with all amendments thereto, as in effect on such date; (2) the resolutions of its Board of Trustees approving this Agreement and the Notes and the other documents to be delivered by or on behalf of the Borrower hereunder; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the execution, delivery and performance by the Borrower of this Agreement and the Notes; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of "Governmental Approval" required to be obtained or made by the Borrower in connection with the execution, delivery and performance by the Borrower of this Agreement and the Notes.
(C) that the resolutions referred to in the foregoing clause (B)(2) have not been modified, revoked or rescinded and are in full force and effect on such date.
(iv) A certificate signed by the Treasurer or Assistant Treasurer of the Borrower, certifying as to:
(A) the SEC Borrowing Limit of the Borrower as in effect on the Closing Date;
(B) the Aggregate Dividend Paying Availability of the Operating Companies as of the Closing Date being an amount not less than the Total Commitment;
(iiiC) The Security Agreement duly executed by the delivery to each of the Lenders, prior to the Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the Disclosure Documents; and
(D) the absence of any material adverse change in the financial condition, operations, properties or prospects of the Borrower Partiessince December 31, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing 1996 except as disclosed in the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;Disclosure Documents.
(v) The A certificate of a duly executed Blocked Account Agreements required by authorized officer of the Borrower stating that (i) the representations and warranties contained in Section 6.15;6.01 are correct, in all material respects, on and as of the Closing Date before and after giving effect to the Advances to be made on such date and the application of the proceeds thereof, and (ii) no event has occurred and is continuing with respect to the Borrower which constitutes an Event of Default or Unmatured Default, or would result from such initial Advances or the application of the proceeds thereof.
(vi) The Fee Letter duly executed by Such financial, business and other information regarding the Borrowers;Borrower and its Principal Subsidiaries, as the Administrative Agent shall have reasonably requested.
(vii) The duly executed Post-Closing Agreement;Favorable opinions of:
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇. ▇▇▇▇▇▇, P.A.Esq., local Assistant General Counsel of NUSCO, counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower PartiesBorrower, in each case, meeting substantially the requirements form of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages Exhibit 5.01A hereto and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect as to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents matters as the Administrative Agent may reasonably request; and
(B) Cravath, certified by an appropriate governmental official or an Authorized Signatory if so requestedSwaine & ▇▇▇▇▇, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01B hereto and as to such other matters as the Administrative Agent may reasonably request.
(b) The Lender Group Lenders shall have received evidence satisfactory to them that no change in completed and be satisfied with the business assets, management, operations or financial condition results of their due diligence investigation of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so statingits Principal Subsidiaries.
(c) The Lender Group All fees and other amounts payable pursuant to Section 2.02 hereof or pursuant to the Commitment Letter shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable been paid (to the members of the Lender Groupextent then due and payable).
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business approvals, opinions and legal due diligence with respect to documents as the Borrowers and the results thereof shall be acceptable to Majority Lenders, through the Administrative Agent, in shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement and the Notes or the financial condition, operations, properties or prospects of the Borrower and its sole discretionPrincipal Subsidiaries.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitments Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) This duly executed Agreement;
(ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;its counsel:
(ixi) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance loan certificate of the Loans;
(xii) A duly executed Borrowing Base Certificate dated Borrower, in substantially the form attached hereto as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower PartyEXHIBIT O, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower PartySignatory, together with appropriate attachments which shall include, without limitation, the followingfollowing items: (A) a copy of Certificate the certificate of Incorporation or Formation incorporation of such Borrower Party the Borrower, certified to be true, complete and correct by the Secretary of State of Delaware, (B) a copy of the by-laws of the Borrower as in effect on the Agreement Date, (C) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the State of Delaware and for each other state in which the Borrower is required to qualify or has qualified to do business, (D) a true, complete and correct copy of the authorizing resolutions of the Borrower, authorizing it to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (E) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of the Borrower;
(ii) Duly executed Subordination Agreement;
(iii) Duly executed Note to the order of each Lender in the amount of such Lender's pro rata share of the Commitment;
(iv) Duly executed Borrower's Pledge Agreement, together with any appropriate stock certificates and undated stock powers executed in blank;
(v) Duly executed Security Agreement;
(vi) Lien search results with respect to the Borrower Party’s and each Subsidiary from all appropriate jurisdictions and filing offices;
(vii) Original UCC-1 financing statements, signed by the Borrower as debtor and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions;
(viii) A loan certificate from each Subsidiary of the Borrower, in substantially the form attached hereto as EXHIBIT P, including a certificate of incumbency with respect to each officer authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the following items: (A) a copy of the certificate or articles of incorporation or formationof such Subsidiary, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for each state in which such Subsidiary is incorporated or required to qualify to do business, (C) a true, complete and correct copy of the By-Laws of such Borrower PartySubsidiary, and (CD) a true, complete and correct copy of the resolutions of such Borrower Party Subsidiary authorizing the executionit to execute, delivery deliver and performance by such Borrower Party of perform the Loan Documents to which it is a party;
(ix) A duly executed Subsidiary Security Agreement, executed and authorizing delivered by each Guarantying Subsidiary of the borrowings or guarantyBorrower;
(x) Original UCC-1 financing statements, signed by each Guarantying Subsidiary, respectively, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does businessdebtor, and naming the Administrative Agent as secured party to be filed in all appropriate jurisdictions;
(Exi) copies A duly executed Subsidiary Guaranty executed and delivered by each Guarantying Subsidiary of all agreements among the shareholders Borrower;
(xii) A duly executed Subsidiary Pledge Agreement from any Guarantying Subsidiary of such the Borrower Party which has one or more corporate Subsidiaries, together with appropriate stock certificates and undated stock powers executed in blank;
(xiii) A duly executed Assignment of Utility Contract from the Borrower with respect to which such Borrower Party is a party its rights under the Utility Contract, and plans together with appropriate UCC-l financing statement forms and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale appropriate forms of Equity Interests of such Borrower Partyperfection;
(xiv) A Solvency Certificate certificate executed by an Authorized Signatory the Borrower and KCPL in form and substance satisfactory to the Administrative Agent certifying that the Borrower is not in default under the KCPL Contract in any material respect and attaching a true, correct and complete copy of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunderKCPL Contract;
(xv) Parent Proof of payment of all title insurance premiums, documentary stamp or intangible taxes, recording fees and its Subsidiaries mortgage taxes payable in connection with the recording of any of the Loan Documents or the issuance of the title insurance commitments referred to above (awhether due on the Agreement Date or in the future) 2008 business plan including its 12 month income statementsuch sums, balance sheetif any, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009due in connection with any future Advances;
(xvi) Consolidated financial statements Copies of Parent any existing environmental reviews and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and audits with respect to Property owned by the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standingBorrower and other information pertaining to actual or potential environmental claims as Administrative Agent may require;
(xvii) Certificates Copies of insurance and loss payable endorsements with respect to binders or certificates covering the assets of the Borrower Partiesand its Subsidiaries, in each casenaming the Administrative Agent as additional insured or named loss payee, as applicable, and otherwise meeting the requirements of Section 6.55.5 hereof;
(xviii) PayLegal opinions of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Borrower and the Subsidiaries, regarding, among other things, the absence of conflict between the Loan Documents CellNet's high-yield debt documents and instruments including the Indenture, and (B) Wilkinson, Barker, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, FCC counsel to the Borrower and the Subsidiaries, in each case addressed to each Lender and the Administrative Agent, and dated as of the Agreement Date, in substantially the forms attached hereto as EXHIBITS Q AND R, respectively;
(xix) Duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as of the Agreement Date, and after giving effect to the funding of the initial Advance hereunder and other payments being made and effected as of the Agreement Date, the Borrower's pro forma compliance with Sections 7.10, 7.11, 7.12 and 7.13 hereof;
(xx) Duly executed Use of Proceeds Letter;
(xxi) Duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since June 30, 1998;
(xxii) Audited financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended December 31, 1997, and an unaudited balance sheet and income statement of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ended June 30, 1998, demonstrating that CellNet has made an equity investment in the Borrower in an amount not less than $60,000,000;
(xxiii) Copies of any pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal satisfaction in full of all pre-existing Indebtedness for Money Borrowed (except for Permitted Debt and CellNet Subordinated Debt) of the Borrower and its Subsidiaries, and the termination of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against ) on the assets of the Borrower Partiesor any of its Subsidiaries including Liens securing the Indebtedness for Money Borrowed being refinanced by the initial Advance;
(xixxxiv) Lien search results with respect Comfort Letter from CellNet, in form and substance satisfactory to the Borrower Parties from all appropriate jurisdictions and filing officesLenders;
(xxxxv) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees Operating and expenses payable to the Administrative Agent, the Affiliates financial projections of the Administrative Agent, and Borrower indicating future compliance with all applicable covenants during the Lenders in connection with the execution and delivery term of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiiixxvi) All such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them it that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected obtained all technically compatible FCC spectrum allocations necessary to have operate a Materially Adverse Effect, wireless data transmission system for KCPL and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations Authorizations, including all necessary consents to the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents to which it is a party and by the Subsidiaries of the Loan Documents to which they are parties, have been obtained or made, are in full force and effect and are not subject to any pending or or, threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect cancellation prior to the initial Advance hereunderits stated termination date, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(ec) The Administrative Agent shall have received confirmation that be satisfied with all terms and conditions, including any subordination provisions, of all Indebtedness of CellNet and all pre-existing Indebtedness (including Permitted Debt and CellNet Subordinated Debt) of the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictionsBorrower.
(d) The Lenders, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender GroupPaul, reflecting thatHastings, among other things▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable special counsel to the Administrative Agent, shall receive payment of all reasonable fees and expenses due and payable on the Agreement Date in its sole discretionrespect of the transactions contemplated hereby.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of Lenders’ obligation to disburse the Lenders to undertake the Revolving Loan Commitments and to make the initial Initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are shall be subject to the prior fulfillment satisfaction of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each all of the followingLoan Documents, the Other Related Documents and all other documents, instruments, policies, and forms of evidence or other materials required by Administrative Agent under the terms of this Agreement or any of the other Loan Documents, all in form and substance acceptable to Administrative Agent.
(b) Administrative Agent shall have received a Title Policy (or an irrevocable commitment to issue a Title Policy) with respect to each Property.
(c) Administrative Agent shall have received and approved, with respect to each Property, in form and substance satisfactory to the Administrative Agent:
Agent (i) This duly executed Agreement;
an environmental questionnaire, a Phase I environmental site assessment and any further environmental site assessments requested by Administrative Agent, with respect to the presence, if any, of Hazardous Materials, (ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
an Appraisal, (iii) The Security Agreement duly executed to the extent required by Administrative Agent, reports with respect to the Borrower Partiescondition of such Property, together with Uniform Commercial Code financing statements related thereto;
(iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank;
(v) The duly executed Blocked Account Agreements required by Section 6.15;
(vi) The Fee Letter duly executed by the Borrowers;
(vii) The duly executed Post-Closing Agreement;
(viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group;
(x) The legal opinion of (A) ▇▇a current S▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Travel Research STAR Report and (Bv) ▇▇▇▇ ▇▇▇▇▇▇▇▇operating statements for each month of the current year (through October, P.A.2004) and for such prior years as Administrative Agent may require.
(d) In Administrative Agent’s reasonable opinion, local there has been no material adverse change in (i) the condition of the Properties or (ii) the business carried on at the Properties since August 31, 2004.
(e) Borrower shall have provided, at Borrower’s expense, an opinion of legal counsel in form and content satisfactory to Administrative Agent to the Borrower Parties, addressed to the Lender Group;
(xi) The duly executed Request for Advance for the initial Advance of the Loans;
(xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008;
(xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the followingeffect that: (Ai) a copy of Certificate of Incorporation upon due authorization, execution and recordation or Formation of such Borrower Party certified to filing as may be truespecified in the opinion, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party each of the Loan Documents and authorizing Other Related Documents shall be legal, valid and binding instruments, enforceable against the borrowings or guarantyLoan Parties party thereto in accordance with their respective terms; (ii) the Loan Parties are duly formed and have all requisite authority to enter into the Loan Documents and Other Related Documents; and (iii) such other matters, incident to the transactions contemplated hereby, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party;
(xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder;
(xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009;
(xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing;
(xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5;
(xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties;
(xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices;
(xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens);
(xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Borrower shall have paid all mortgage, intangible and other similar taxes as are required in connection with recording of the Deeds of Trust. To the extent that applicable law limits the amount secured by a Deed of Trust to the amounts with respect to which such tax is paid, such tax shall be paid with respect to not less than the fair market value of the applicable Property (as reflected in the Appraisal provided for in Section 3.1(c)) or such lesser amount as Administrative Agent shall have received a Borrowing Base Certificate, may approve but in form and substance satisfactory to the Lender Group, reflecting that, among other things, as no event less than 105% of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital)Allocated Loan Amount.
(g) The Borrower and Guarantor shall have satisfied such other conditions as Administrative Agent shall have completed such require. Notwithstanding the foregoing, if all conditions to the Initial Advance (other business than (i) the delivery of satisfactory estoppel certificates from the lessor under the Sugar Land Lease and legal due diligence from the condominium associations for the condominium developments that include the Sugar Land Property and (ii) the delivery of the documents with respect to the Borrowers and San Antonio Property identified in Exhibit K) have been satisfied, the results thereof Initial Advance shall be acceptable made, subject to the Administrative Agent, in its sole discretionlimitations on Loan Availability.
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