First Loan. In addition to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation of the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of each of the following, in Proper Form: (a) the Note, executed by the Borrower; (b) the Security Documents executed by the Borrower; (c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F; (d) certified copies of the Organizational Documents of the Borrower; (e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas; (f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas; (g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions; (h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G; (i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination; (j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date; (k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion; (l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents; (m) the Borrower and the Lender shall have entered into the Lockbox Agreements; (n) copies of all major customer and supplier contracts with respect to the Borrower; (o) copies of all employment agreements, management fee agreements and tax sharing agreements; (p) copies of all lease and warehouse agreements entered into by Borrower; (q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused; (r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower; (s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997; (t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date; (u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.
Appears in 1 contract
First Loan. In addition to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation of the Lender to issue the first Letter of Credit is subject to the (i) receipt by the Lender Bank of each a duly executed Note dated on or before the date of such Loan, complying with the following, in Proper Form:
(a) the Note, executed by the Borrowerprovisions of Section 2.5;
(bii) all legal matters incident to this Agreement, the Security Documents executed by Note and any Application delivered at such time, and the Borrowertransactions contemplated hereby and thereby, shall be reasonably satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Bank;
(ciii) receipt by the Bank of (A) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents copy of the Borrower;
(e) a 's certificate from of incorporation, as amended, certified by the Secretary of State or other appropriate public official office of the State of Texas as to the continued existence of the Borrower in the State of Texas;
Delaware; (fB) a certificate from the Office of the Comptroller or other appropriate public official such office, dated as of the State of Texas a recent date, as to the good standing and charter documents of the Borrower on file; and (C) a certificate of the Secretary or an Assistant Secretary of the Company dated the date of such Loan and certifying (1) that the certificate of incorporation of the Borrower has not been amended since the date of the last amendment thereto indicated on the certificate furnished pursuant to clause (B) above, (2) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the State date of Texassuch certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Note and any Applications delivered at such time and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (5) as to the incumbency and specimen signatures of each officer of the Borrower executing this Agreement, the Note and any Applications delivered at such time, or any other document delivered in connection herewith or therewith;
(giv) certificates from receipt by the appropriate public officials Bank of those jurisdictions where the nature an opinion of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporationMcGuireWoods LLP, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel Borrower, covering such matters relating to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender Bank may reasonably request, executed ;
(v) receipt by the Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing statements that name the Borrower (under its present name and any previous names) as debtor or any other Person required seller, together with copies of such financing statements (all of which shall have been disclosed in writing to, and accepted by, the Bank);
(vi) receipt by the LenderBank of a certificate signed by the President or Executive Vice President - Finance and Administration of the Borrower, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at effect set forth in clauses (ii) and (iii) of Section 3.1; and
(vii) receipt by the time Bank of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be all documents it may reasonably satisfactory request relating to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files existence of the Borrower and its corporate authority to make copies hereofexecute, deliver and to conduct a preclosing audit which shall includeperform this Agreement, without limitationthe Note and the Applications and the validity of this Agreement, verification of Eligible Receivablesthe Note and the Applications and any other matters relevant hereto or thereto, verification of satisfactory status of customer all in form and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been substance satisfactory to the Lender Bank. All documents and opinions referred to in all respects); (3) all such actions as the Lender this Article shall reasonably require to perfect the Liens created pursuant be in form and substance satisfactory to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, Bank and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lenderits counsel.
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the Lender's obligation of Lender to make the initial first Loan or hereunder:
(1) The Company shall have delivered to the obligation Lender, in form and substance satisfactory to the Lender and its counsel, each of the Lender to issue the first Letter following:
(i) A duly executed copy of Credit is subject to the receipt by the Lender this Agreement;
(ii) A duly executed copy of each of the following, in Proper Form:
(a) Security Agreement and the Note, executed by the BorrowerGuaranty;
(biii) A duly executed copy of the Security Documents executed by the BorrowerNote;
(civ) a certificate Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Secretary or Assistant Secretary of Lender, in its reasonable discretion, to obtain for the Borrower dated as of Lender a perfected, first priority security interest in and lien upon the date thereof, substantially in the form attached hereto as EXHIBIT FCollateral;
(dv) certified copies of Such credit applications, financial statements, authorizations and such information concerning the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records Company and the results of such field examination;
Guarantor and their respective businesses, operations and conditions (jfinancial and otherwise) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Company and the Guarantor approving the execution and delivery of the Credit Documents to which the Company or the Guarantor, executed respectively, is a party, the performance of the Obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant Secretary of each of the Company and the Guarantor certifying the names and true signatures of the officers of the Company or the Guarantor authorized to execute and deliver the Credit Documents to which the Company or the Guarantor, respectively, is a party;
(viii) A copy of the Articles of Incorporation of each of the Company and the Guarantor, certified by the Borrower respective Secretary or any other Person required an Assistant Secretary 6 of the Company or the Guarantor, respectively, as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Company and the Guarantor, certified by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time respective Secretary or an Assistant Secretary of the initial LoanCompany or the Guarantor, respectively, as of the date of this Agreement as being accurate and complete;
(A) A certificate of the Secretary of State of the State of California, certifying as of a recent date that the Company is in good standing, (1B) the ownership, corporate structure, solvency and capitalization a certificate of the Borrower shall be Secretary of State of the State of Florida, certifying as of a recent date that the Company is qualified as a foreign corporation in the State of Florida; (C) a certificate of the Secretary of State of the State of Delaware, certifying as of a recent date that the Guarantor is in good standing, and (D) a certificate of the Secretary of State of the State of Florida, certifying as of a recent date that the Company is qualified as a foreign corporation in the State of Florida;
(xi) An opinion of counsel for the Company and the Guarantor substantially in the form of Exhibit D attached hereto and covering such other matters as the Lender may reasonably request;
(xii) Evidence satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files that each of the Borrower Funding Account and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as the Settlement Account has been opened;
(xiii) A schedule of the Closing Date initial Approved Investors duly approved by the Lender;
(with the results of such examination and audits to have been xiv) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender compliance with the covenants set forth in all respectsParagraphs 7(i); , 7(j) and 7(k) below;
(3xv) all such actions A copy of each Buy/Sell Agreement in effect as of the date hereof;
(xvi) Such financial information as the Lender shall may reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property request with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered any Approved Investor; and
(xvii) A duly completed Borrowing Base Schedule certified by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderCompany.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Westmark Group Holdings Inc)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the Lender's obligation of Lender to make the initial first Loan hereunder:
(1) The Company shall have delivered, or shall have caused to be delivered, to the obligation of Lender, in form and substance satisfactory to the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of and its counsel, each of the following, in Proper Form:
(a) the Note, executed by the Borrower;
(b) the Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a A duly executed copy of this Agreement;
(ii) A duly executed copy of the field examination, including a takeover field examination, Security Agreement and of the Borrower's books and records and the results of such field examinationGuaranty;
(jiii) evidence that A duly executed copy of the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing DateNote;
(kiv) a legal opinion from counsel Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Lender, in its reasonable discretion, to obtain for the Borrower (said counsel to be reasonably acceptable to Lender)Lender a perfected, dated as of first priority security interest in and lien upon the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretionCollateral;
(lv) certificates of insurance satisfactory to Such credit applications, financial statements, authorizations and such information concerning the Lender in all respects evidencing Company or the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers Guarantor or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or operations and conditions (financial condition and otherwise) of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from Company or the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby Guarantor as the Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Company and the Guarantor approving the execution and delivery of the Credit Documents to which such Person is a party, executed the performance of the Obligations and any other obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant Secretary of each of the Company and the Guarantor certifying the names and true signatures of the officers of such Person authorized to execute and deliver the Credit Documents to which such Person is a party;
(viii) A copy of the Articles of Incorporation of each of the Company and the Guarantor, certified by the Borrower respective Secretary or any other an Assistant Secretary of such Person required as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Company and the Guarantor, certified by the Lenderrespective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(x) A certificate (A) of the Secretary of State of the State of South Carolina, including certifying as of a recent date that the Company is in good standing; and (B) of the Secretary of State of the State of South Carolina, certifying as of a recent date that the Guarantor is in good standing;
(xi) An opinion of counsel for the Company and the Guarantor substantially in the form of Exhibit D attached hereto and covering such other matters as the Lender may reasonably request;
(xii) Evidence satisfactory to the Lender that each of the Funding Account and the Settlement Account has been opened;
(xiii) A duly completed Borrowing Base Schedule dated as of the date of the first Loan hereunder and certified by the Company to be true in all respects; and
(xiv) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender that the Company is in compliance with the covenants set forth in Paragraphs 7(j) through 7(u), inclusive, below.
(2) All acts and conditions (including, without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the further conditions thatexecution, at the time delivery and performance of the initial LoanCredit Documents and to constitute the same legal, (1) the ownershipvalid and binding obligations, corporate structureenforceable in accordance with their respective terms, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Credit Documents shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); and its counsel.
(34) all such actions as All fees required to be paid on or before the Lender shall reasonably require to perfect the Liens created date hereof pursuant to the Security Documents Paragraph 2(l) above shall have been taken, including without limitation, the delivery paid prior to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4or will be paid concurrently with) the Lender shall also have received evidence reasonably satisfactory to it that making of the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderLoan hereunder.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
First Loan. In addition to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation case of the Lender to issue the first Letter of Credit is subject to the Loan:
(i) receipt by the Lender Bank of each of the following, in Proper Form:
(a) the a duly executed Note, executed by dated on or before the Borrowerdate of such Loan, complying with the provisions of Section 2.4;
(bii) all legal matters incident to this Agreement, the Security Note and the Collateral Documents executed by and the Borrowertransactions contemplated hereby and thereby shall be reasonably satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Bank;
(ciii) receipt by the Bank of (A) a copy of each Borrower's certificate of incorporation, as amended, certified by the appropriate office of the state of its incorporation; (B) a certificate executed by of such office, dated as of a recent date, as to the good standing and charter documents of said Borrower on file; and (C) a certificate of the Secretary or an Assistant Secretary of the said Borrower dated as the date of such Loan and certifying (1) that the certificate of incorporation of said Borrower has not been amended since the date of the last amendment thereto indicated on the certificate furnished pursuant to clause (B) above, (2) as to the absence of dissolution or liquidation proceedings by or against said Borrower, (3) that attached thereto is a true and complete copy of the by-laws of said Borrower as in effect on the date thereofof such certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of said Borrower authorizing the execution, delivery and performance of this Agreement, the Note and the Collateral Documents to which said Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (5) as to the incumbency and specimen signatures of each officer of said Borrower executing this Agreement, the Note and any other Collateral Documents to which it is a party, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of executed copies of the Collateral Documents granting to the Bank a first Lien in all the Collateral described therein, subject to Permitted Liens;
(v) receipt by the Bank of certificates representing the shares of stock pledged under the Pledge Agreement, duly indorsed in blank or accompanied by stock powers duly executed in blank;
(vi) receipt by the Bank of an opinion of ▇▇▇▇ and ▇▇▇▇, LLP, counsel for the Borrowers, substantially in the form attached of Exhibit E hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in covering such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and additional matters relating to the transactions contemplated hereby as the Lender Bank may reasonably request, executed by the Borrower ;
(vii) on or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject prior to the further conditions that, at the time date of the initial such Loan, each document (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed each Uniform Commercial Code financing statements; (4statement, but excluding filings with the U.S. Patent and Trademark Office or the Register of Copyrights) required by law or reasonably requested by the Lender Bank to be filed, registered or recorded with a governmental authority in order to create in favor of the Bank a perfected first priority security interest in the Collateral shall also have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and the Bank shall have received an acknowledgment copy, or other evidence reasonably satisfactory to it that the Liens created it, of each such filing, registration or recordation;
(viii) receipt by the Security Documents constitute first priority Liens Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (vii) above and all other effective financing statements that name each Borrower (under its present names and any previous names) as debtors or sellers and that are filed in the jurisdictions referred to in clause (vii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except for any Liens expressly provided for as otherwise disclosed in SECTION 7.2 belowwriting to, and accepted by, the Bank, and Permitted Liens); ;
(5ix) receipt by the Borrower shall have paid all fees owing Bank of evidence of the insurance required by the Collateral Documents;
(x) receipt by the Bank of a certificate signed by the chief financial officer, treasurer, or president of each Borrower, to the Lender effect set forth in clauses (ii) and (iii) of Section 3.1; and
(xi) receipt by the Bank of all documents it may reasonably request relating to the existence of each Borrower under and its corporate authority to execute, deliver and perform this Agreement, including without limitationthe Note and the Collateral Documents and the validity of this Agreement, legal fees the Note and expenses described the Collateral Documents and any other matters relevant hereto or thereto, all in SECTION 9.09 or otherwise form and (6) all other legal matters incident substance satisfactory to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderBank.
Appears in 1 contract
First Loan. In addition to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation case of the Lender to issue the first Letter of Credit is subject to the Loan:
(i) receipt by the Lender Bank of each a duly executed Note, dated on or before the date of such Loan, complying with the following, in Proper Form:provisions of Section 2.4;
(aii) all legal matters incident to this Agreement, the Note, executed by the BorrowerCollateral Documents and the Guaranties and the transactions contemplated hereby and thereby shall be reasonably satisfactory to Mays & Valentine, L.L.P., counsel for the Bank;
(biii) the Security Documents executed receipt by the Bank of (A) a copy of the Borrower;
's certificate of incorporation, as amended, certified by the appropriate office of the State of Delaware; (cB) a certificate executed by of such office, dated as of a recent date, as to the good standing and charter documents of the Borrower on file; and (C) a certificate of the Secretary or an Assistant Secretary of the Borrower dated as the date of such Loan and certifying (1) that the certificate of incorporation of the Borrower has not been amended since the date thereofof the last amendment thereto indicated on the certificate furnished pursuant to clause (B) above, (2) as to the absence of dissolution or liquidation proceedings by or against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date of such certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Notes and the Collateral Documents to which the Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (5) as to the incumbency and specimen signatures of each officer of the Borrower executing this Agreement, the Note and any Collateral Documents to which it is a party, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of duly executed copies of the Guaranties of all Guarantors in existence on the date of said Loan;
(vi) receipt by the Bank of certificates representing the shares of any stock pledged under the Pledge Agreements in effect on the date of said Loan, duly indorsed in blank or accompanied by stock powers duly executed in blank;
(vii) receipt by the Bank of an opinion of Chri▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, general counsel for the Borrower, substantially in the form attached of Exhibit H hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in covering such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and additional matters relating to the transactions contemplated hereby as the Lender Bank may reasonably request, executed by the Borrower ;
(viii) (A) on or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject prior to the further conditions that, at the time date of the initial such Loan, each document (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivableseach Uniform Commercial Code financing statement but excluding filings with the U.S. Copyright Office and the U.S. Patent and Trademark Office) required by law or reasonably requested by the Bank to be filed, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as registered or recorded in order to create in favor of the Closing Date Bank a perfected first priority security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested; (B) within 10 days after the date of such Loan, each filing with the results U.S. Copyright Office and the U.S. Patent and Trademark Office required by law or reasonably requested by the Bank to be filed, registered or recorded with respect to the Collateral shall have been properly filed, registered or recorded in the appropriate office; and (C) the Bank shall have received, within 30 days after the date of such examination and audits to have been Loan, an acknowledgment copy, or other evidence satisfactory to it, of each of the Lender foregoing filings, registrations and recordations;
(ix) receipt by the Bank of (A) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (viii) above and all respectsother effective financing statements that name the Borrower (under its present names and any previous names) as debtors or sellers and that are filed in the jurisdictions referred to in clause (viii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except as otherwise disclosed in writing to, and accepted by, the Bank); and (3B) completed Lien search requests for all such actions filings in the U.S. Copyright Office and the U.S. Patent and Trademark Office;
(x) receipt by the Bank of a landlord's waiver with respect to the Borrower's lease of its office space in Reston, Virginia and of evidence of the completion of all recordings and filings of the Collateral Documents as may be necessary or, in the Lender shall reasonably require opinion of the Bank, desirable to perfect the Liens created pursuant by the Collateral Documents;
(xi) receipt by the Bank of evidence of the insurance required by the Collateral Documents;
(xii) receipt by the Bank of a certificate signed by the President of the Borrower, to the Security Documents shall have been takeneffect set forth in clauses (ii) and (iii) of Section 3.1; and
(xiii) receipt by the Bank of all documents it may reasonably request relating to the existence of the Borrower and the Guarantors, including without limitationand their respective authority to execute, deliver and perform, as applicable, this Agreement, the delivery to Note, the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such LiensGuaranties, and with respect to the Collateral covered by Documents and the Security Agreementsvalidity of this Agreement, the filing of appropriately completed Note, the Guaranties and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence Collateral Documents and any other matters relevant hereto or thereto, all in form and substance reasonably satisfactory to it that the Liens created by Bank. The failure of any action to be taken, or the Security Documents constitute first priority Liens (except for failure of any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing documentation to be delivered to the Lender Bank, required by this Section to be taken or delivered after the Borrower making of the related Loan, shall constitute a breach of covenant under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the any Lender's obligation of Lender to make the initial first Loan hereunder:
(1) The Company shall have delivered, or shall have caused to be delivered, to the obligation Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel, each of the Lender to issue following (with sufficient copies for each of the first Letter Lenders):
(i) A duly executed copy of Credit is subject to this Agreement;
(ii) A duly executed copy of the receipt by the Lender Security Agreement, of each of the following, in Proper Form:
(a) Guaranties and of the Note, executed by the BorrowerSubordination Agreement;
(biii) Duly executed copies of each of the Security Documents executed by the BorrowerNotes;
(civ) Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Administrative Agent, in its reasonable discretion, to obtain for the Administrative Agent on behalf of the Lenders a perfected, first priority security interest in and lien upon the Collateral;
(v) Such credit applications, financial statements, authorizations and such information concerning the Company or either of the Guarantors or the business, operations and conditions (financial and otherwise) of the Company or either of the Guarantors as any Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Company and the Guarantors approving the execution and delivery of the Credit Documents to which such Person is a party, the performance of the Obligations and any other obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate executed by of the Secretary or an Assistant Secretary of each of the Borrower Company and the Guarantors certifying the names and true signatures of the officers of such Person authorized to execute and deliver the Credit Documents to which such Person is a party;
(viii) A copy of the Articles of Incorporation of each of the Company and the Guarantors, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Company and the Guarantors, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(x) A certificate (A) of the Secretary of State of the State of South Carolina, certifying as of a recent date that the Company is in good standing; (B) of the Secretary of State of the State of South Carolina, certifying as of a recent date that EGI is in good standing; and (C) of the Secretary of State of the State of South Carolina, certifying as of a recent date that Sterling is in good standing;
(xi) An opinion of counsel for the Company and the Guarantors substantially in the form of Exhibit D attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(xii) Evidence satisfactory to the Administrative Agent that each of the Funding Account and the Settlement Account has been opened;
(xiii) A duly completed Borrowing Base Schedule dated as of the date thereof, substantially of the first Loan hereunder and certified by the Company to be true in the form attached hereto as EXHIBIT Fall respects;
(dxiv) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as A Covenant Compliance Certificate demonstrating in detail satisfactory to the continued existence of Administrative Agent and the Borrower Lenders that (A) the Company is in compliance with the State of Texas;
covenants set forth in Paragraphs 7(j) and 7(k) below, and (fB) a certificate from EGI is in compliance with the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower covenants set forth in the State of Texas;
(gParagraphs 11(l) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate11(m) of the Borrower in such jurisdictions;Parent Guaranty; and
(hxv) A written selection by the most recent schedule and aging Company of Receivables of either the Borrower (dated within thirty (30) days of Applicable Corporate Base Rate or the Closing Date), Applicable Fed Funds Rate as well as a current Borrowing the Alternate Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;Rate.
(i2) a copy of the field examinationAll acts and conditions (including, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the further conditions thatexecution, at the time delivery and performance of the initial LoanCredit Documents and to constitute the same legal, (1) the ownershipvalid and binding obligations, corporate structureenforceable in accordance with their respective terms, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Credit Documents shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); Administrative Agent and its counsel.
(34) all such actions as All fees required to be paid on or before the Lender shall reasonably require to perfect the Liens created date hereof pursuant to Paragraph 2(r) above and any other accrued and unpaid fees or commissions due hereunder or in connection herewith, and all expenses due to the Security Documents Administrative Agent or First Union Capital Markets Corporation which are required to be paid on or before the date hereof, shall have been taken, including without limitation, the delivery paid prior to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4or will be paid concurrently with) the Lender shall also have received evidence reasonably satisfactory to it that making of the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); Loan hereunder.
(5) the Borrower EGI shall have paid all fees owing contributed no less than $5,000,000 of paid-in capital to the Lender by the Borrower under this AgreementCompany no later than February 28, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and 1997.
(6) all other legal matters incident The Company shall have delivered to the transactions herein contemplated shall be reasonably satisfactory to counsel for Administrative Agent and each Lender a copy of each of EGI's and the LenderCompany's audited consolidated and consolidating financial statements bearing an unqualified opinion from KPMG Peat Marwick.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
First Loan. In addition As conditions precedent to any Lender's obligation to fund the first Loan hereunder:
(1) The Company and the Parent, as applicable, shall have delivered or shall have had delivered to the matters described Administrative Agent, in SECTION 4.1 hereofform and substance satisfactory to the Lenders and their counsel, the obligation of Lender to make the initial Loan or the obligation each of the Lender to issue following (with sufficient copies for each of the first Letter Lenders):
(i) A duly executed copy of Credit is subject to this Agreement;
(ii) A duly executed copy of the receipt by the Lender Security Agreement;
(iii) Duly executed originals of each of the following, in Proper Form:
(a) the Note, executed by the BorrowerNotes;
(biv) A duly executed copy of the Security Documents executed by the BorrowerGuaranty;
(cv) Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Administrative Agent, in its reasonable discretion, to create and/or continue in favor of the Administrative Agent for the pari passu benefit of the Lenders a first priority perfected security interest in and lien upon the Collateral;
(vi) Acknowledgment copies of all UCC-1 financing statements filed with respect to the Collateral, accompanied by a search report showing such financing statements as duly filed and evidencing that the security interest of the Administrative Agent for the pari passu benefit of the Lenders in the Collateral is prior to all security interests of record;
(vii) Certified copies of resolutions of the Board of Directors of each of the Company and the Parent approving the execution and delivery of the Loan Documents, the performance of the Obligations and the consummation of the transactions contemplated thereby;
(viii) A certificate executed of the Secretary or an Assistant Secretary of each of the Company and the Parent certifying the names and true signatures of the officers of the Company and the Parent, as applicable, authorized to sign the Loan Documents;
(ix) An opinion of counsel for the Company and the Parent, which counsel shall be satisfactory to the Administrative Agent, in substantially the form of Exhibit D attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(x) A copy of the Articles of Incorporation of the Company and the Certificate of Incorporation of the Parent, certified by the Secretaries of State of the State of California and the State of Delaware, respectively, as of a recent date;
(xi) A copy of the Bylaws of each of the Company and the Parent, certified by the Secretary or an Assistant Secretary of the Borrower Company and the Parent, as applicable, as of the date of this Agreement as being accurate and complete;
(xii) Certificates of the Secretary of State of the State of California and the State of Delaware certifying that each of the Company and the Parent, respectively, are in good standing as of a recent date;
(xiii) A certificate of an executive officer of each of the Company and the Parent in the form of that attached hereto as Exhibit E dated as of the date thereof, substantially in the form attached hereto as EXHIBIT Fof this Agreement;
(dxiv) certified copies A certificate of a Responsible Financial Officer of each of the Organizational Documents of Parent and the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as Company demonstrating in detail satisfactory to the continued existence of Administrative Agent the Borrower in Parent's or the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the BorrowerCompany's business makes it necessary or desirable to be qualified to do business as a foreign corporationcompliance, as to applicable, with the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower financial covenants set forth in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing DateParagraphs 12(i), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i12(j) a copy of the field examination, including a takeover field examination, of the Borrower's books and records 12(k) below at and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Datelast day of October, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;1996; and
(lxv) certificates of insurance Evidence satisfactory to the Lender in Administrative Agent that upon the funding of the first Loan hereunder all respects evidencing Obligations outstanding under (and as the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(mterm "Obligations" is defined in) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change Existing Credit Agreement will be paid in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lenderfull.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Aames Financial Corp/De)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the Lender's obligation of Lender to make the initial first Loan or hereunder:
(1) The Company shall have delivered to the obligation of Lender, in form and substance satisfactory to the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of and its counsel, each of the following, in Proper Form:
(a) the Note, executed by the Borrower;
(b) the Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a A duly executed copy of this Agreement;
(ii) A duly executed copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examinationSecurity Agreement;
(jiii) evidence that A duly executed copy of the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing DateNote;
(kiv) a legal opinion from counsel Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Lender, in its reasonable discretion, to obtain for the Borrower Lender a perfected, first priority security interest in and lien upon the Collateral and, within sixty (said counsel to be reasonably acceptable to Lender)60) days following the date hereof, dated acknowledgments and consents duly executed by each investor under a Servicing Contract covering Assigned Rights and by the Company, as of the Closing Date, addressed to the Lender and acceptable more particularly set forth in all respects to the Lender in its sole and absolute discretionParagraph 3(a)(3) above;
(lv) certificates of insurance satisfactory to Such credit applications, financial statements, authorizations and such information concerning the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement Company and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the its business, assets, operations, or operations and conditions (financial condition of the Borrower since April 30, 1997;
(tand otherwise) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of the Company approving the execution and delivery of the Credit Documents to which the Company is a party, executed the performance of the Obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to execute and deliver the Credit Documents to which the Company is a party;
(viii) A copy of the Articles of Incorporation of the Company, certified by the Borrower respective Secretary or any an Assistant Secretary of the Company as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of the Company, certified by the respective Secretary or an Assistant Secretary of the Company as of the date of this Agreement as being accurate and complete;
(x) A certificate of the Secretary of State of the Commonwealth of Massachusetts, certifying as of a recent date that the Company is in good standing;
(xi) An opinion of counsel for the Company substantially in the form of EXHIBIT C attached hereto and covering such other Person required matters as the Lender may reasonably request;
(xii) Evidence satisfactory to the Lender that each of the Funding Account and the Settlement Account has been opened;
(xiii) A schedule of the initial Approved Investors duly approved by the Lender;
(xiv) A duly completed Borrowing Base Schedule dated as of the date of the first Loan hereunder and certified by the Company to be true in all respects; and
(xv) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender that the Company is in compliance with the covenants set forth in Paragraphs 7(j), including 7(k) and 7(l) below.
(2) All acts and conditions (including, without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the further conditions thatexecution, at the time delivery and performance of the initial LoanCredit Documents and to constitute the same legal, (1) the ownershipvalid and binding obligations, corporate structureenforceable in accordance with their respective terms, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Credit Documents shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); and its counsel.
(34) all such actions as All fees required to be paid on or before the Lender shall reasonably require to perfect the Liens created date hereof pursuant to the Security Documents Paragraph 2(l) above shall have been taken, including without limitation, the delivery paid prior to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4or will be paid concurrently with) the Lender shall also have received evidence reasonably satisfactory to it that making of the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderLoan hereunder.
Appears in 1 contract
First Loan. In addition the case of the first Loan, to the matters described in SECTION 4.1 hereofextent not previously delivered to the Bank, to the obligation of Lender to make the initial Loan or the obligation satisfaction of the Lender to issue Bank, in connection with the first Letter of Previous Credit is subject to the Agreement:
(i) receipt by the Lender Bank of each of the following, in Proper Form:
(a) the a duly executed Note, executed by dated on or before the Borrowerdate of such Loan, complying with the provisions of Section 2.4;
(bii) all legal matters incident to this Agreement, the Security Note and the Collateral Documents executed by and the Borrowertransactions contemplated hereby and thereby shall be reasonably satisfactory to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Bank;
(ciii) receipt by the Bank of (A) a copy of each Borrower’s certificate of incorporation, as amended, certified by the appropriate office of the state of its incorporation; (B) a certificate executed by of such office, dated as of a recent date, as to the good standing and charter documents of said Borrower on file; and (C) a certificate of the Secretary or an Assistant Secretary of the said Borrower dated as the date of such Loan and certifying (1) that the certificate of incorporation of said Borrower has not been amended since the date of the last amendment thereto indicated on the certificate furnished pursuant to clause (B) above, (2) as to the absence of dissolution or liquidation proceedings by or against said Borrower, (3) that attached thereto is a true and complete copy of the by-laws of said Borrower as in effect on the date thereofof such certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of said Borrower authorizing the execution, delivery and performance of this Agreement, the Note and the Collateral Documents to which said Borrower is a party and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (5) as to the incumbency and specimen signatures of each officer of said Borrower executing this Agreement, the Note and any other Collateral Documents to which it is a party, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of executed copies of the Collateral Documents granting to the Bank a first Lien in all the Collateral described therein, subject to Permitted Liens;
(v) receipt by the Bank of certificates representing the shares of stock pledged under the Pledge Agreement, duly indorsed in blank or accompanied by stock powers duly executed in blank (Bank agrees to provide the Borrowers with written confirmation, delivered promptly after the Effective Date, of the foregoing certificates that the Bank has in its possession);
(vi) receipt by the Bank of an opinion of ▇▇▇▇ and ▇▇▇▇, LLP, counsel for the Borrowers, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as Exhibit E to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Previous Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and covering such additional matters relating to the transactions contemplated hereby as the Lender Bank may reasonably request, executed by the Borrower ;
(vii) on or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject prior to the further conditions that, at the time date of the initial such Loan, each document (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed each Uniform Commercial Code financing statements; (4statement, but excluding filings with the U.S. Patent and Trademark Office or the Register of Copyrights) required by law or reasonably requested by the Lender Bank to be filed, registered or recorded with a governmental authority in order to create in favor of the Bank a perfected first priority security interest in the Collateral shall also have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and the Bank shall have received an acknowledgment copy, or other evidence reasonably satisfactory to it that the Liens created it, of each such filing, registration or recordation;
(viii) receipt by the Security Documents constitute first priority Liens Bank of certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing the financing statements referred to in clause (vii) above and all other effective financing statements that name each Borrower (under its present names and any previous names) as debtors or sellers and that are filed in the jurisdictions referred to in clause (vii) above, together with copies of such other financing statements (none of which shall cover the Collateral, except for any Liens expressly provided for as otherwise disclosed in SECTION 7.2 belowwriting to, and accepted by, the Bank, and Permitted Liens); ;
(5ix) receipt by the Borrower shall have paid all fees owing Bank of evidence of the insurance required by the Collateral Documents;
(x) receipt by the Bank of a certificate signed by the chief financial officer, treasurer, or president of each Borrower, to the Lender effect set forth in clauses (ii) and (iii) of Section 3.1; and
(xi) receipt by the Bank of all documents it may reasonably request relating to the existence of each Borrower under and its corporate authority to execute, deliver and perform this Agreement, including without limitationthe Note and the Collateral Documents and the validity of this Agreement, legal fees the Note and expenses described the Collateral Documents and any other matters relevant hereto or thereto, all in SECTION 9.09 or otherwise form and (6) all other legal matters incident substance satisfactory to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderBank.
Appears in 1 contract
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation funding of the Lender to issue the first Letter of Credit is subject Loan hereunder:
(1) The Company shall have delivered or shall have had delivered to the receipt Agent, in form and substance reasonably satisfactory to the Agent and its counsel, each of the following (with sufficient copies for each of the Lenders):
(i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the Stock Pledge Agreement and the other Initial Collateral Documents;
(iii) The Negative Pledge Agreement, duly executed by each of the Lender Pledged Subsidiaries;
(iv) Certified copies of resolutions of the Board of Directors of the Company approving the execution and delivery of the Loan Documents to which the Company is party;
(v) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign the Loan Documents to which the Company is party;
(vi) Certified copies of resolutions of the Boards of Directors of each of the following, in Proper Form:
(a) Pledged Subsidiaries approving the Note, execution and delivery of the Negative Pledge Agreement to be executed by the Borrowersuch Pledged Subsidiary;
(bvii) A certificate of the Security Documents Secretary or an Assistant Secretary of each of the Pledged Subsidiaries certifying the names and true signatures of the officer(s) of the Pledged Subsidiary authorized to sign the Negative Pledge Agreement to be executed by the Borrowersuch Pledged Subsidiary;
(cviii) A copy of the Certificate of Incorporation of the Company, certified by the Secretary of State of the State of Delaware as of a certificate executed recent date;
(ix) A copy of each of the Certificate of Incorporation and Bylaws of the Company, certified by the Secretary or an Assistant Secretary of the Borrower Company as of the date of this Agreement as being accurate and complete;
(x) A certificate of good standing or status of the Company from the Secretary of State of the States of Delaware and California as of a recent date;
(xi) A Closing Certificate, duly executed by an Authorized Officer, dated as of the date thereofof the first Loan hereunder, substantially confirming the accuracy and completeness of the representations and warranties of the Company set forth in the form attached hereto as EXHIBIT FLoan Documents and the fact that there does not exist a Potential Default or an Event of Default;
(dxii) certified copies A Financial Covenant Compliance Certificate, duly executed by an Authorized Officer, dated at and as of June 30, 1998 and evidencing compliance by the Organizational Documents appropriate Persons with the requirements of the BorrowerParagraphs 9(g)(3), 9(g)(4), 9(g)(5), 9(g)(7), 9(g)(8), 9(j), 9(k), 9(l), 9(m), 9(n), 9(o) and 9(p) below;
(exiii) a certificate from the Secretary An opinion of State or other appropriate public official of the State of Texas as Stra▇▇▇▇▇ ▇▇▇c▇ ▇▇▇l▇▇▇ & Raut▇, ▇▇unsel to the continued existence of Company and the Borrower in the State of TexasPledged Subsidiaries;
(fxiv) a certificate For each of the Pledged Subsidiaries, consents to the pledge of the Pledged Shares thereof (or written waiver of the requirement for any such consent) from the Office of Applicable Insurance Regulatory Authority, in form and substance to the Comptroller Agent and the Lenders, or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lenderevidence, including without limitation, the Lockbox Agreements; and subject an opinion of counsel to the further conditions thatCompany and the Pledged Subsidiaries satisfactory to the Agent and the Lenders, at that such filing or waiver is not required;
(xv) Evidence satisfactory to the time Agent and the Lenders that upon the funding of the initial first Loan, (1) the ownership, corporate structure, solvency and capitalization all Indebtedness of the Borrower Company to Sanwa with respect to the Existing Bridge Facility shall have been paid in full, the credit facility evidenced thereby terminated and any and all Liens in favor of Sanwa securing the Existing Bridge Facility released; and
(xvi) The Agent's Fee Letter, duly executed by the Company.
(2) The Agent shall have delivered to the Company and each of the Lenders the initial Commitment Schedule, which shall be acceptable to the Company and each of the Lenders.
(3) All acts and conditions (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(4) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents, shall be reasonably satisfactory in form and substance to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account Agent and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lenderits counsel.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Financial Inc /De/)
First Loan. In addition to the matters described in SECTION Section 4.1 hereof, the obligation of the Lender to make the initial Loan or the obligation of the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of each of the following, in Proper Form:
(a) the Note, Note executed by the Borrower;
(b) the Security Documents executed by the BorrowerBorrower and all other necessary Parties, as applicable;
(c) a certificate executed by the Secretary or an Assistant Secretary of the Borrower dated as of the date thereofhereof, substantially in the form attached hereto as EXHIBIT FExhibit E;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(ie) a copy of the field examination, including a takeover field examination, of the BorrowerLender's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(mf) the Borrower and the Lender shall have entered into the Lockbox AgreementsAgreement;
(ng) copies of all major customer and supplier contracts with respect to manufacturing servicing agreements of the BorrowerBorrower which the Lender shall have requested;
(oh) copies of all employment agreements, management fee agreements and tax sharing agreementsagreements which the Lender shall have requested;
(pi) copies of all lease and warehouse agreements entered into by the Borrower's Annual Audited Financial Statements for the fiscal year ending March 27, 1999;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(uj) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox AgreementsAgreement; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects)thereof; (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 belowSections 7.2(c); , (5d) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.and
Appears in 1 contract
Sources: Credit Agreement (Xetel Corp)
First Loan. In addition to the matters described in SECTION 4.1 Section 5.1 hereof, the obligation of the Lender to make the initial Revolving Loan or the obligation of the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of each of the following, in Proper Form:
(a) the NoteNotes, executed by the BorrowerBorrower and Ultimate Parent, as applicable;
(b) the Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary General Partner of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT FExhibit G;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas Delaware as to the continued existence of the Borrower in the State of TexasDelaware;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, Texas and Delaware as to the existence, good standing and qualification as a foreign corporation limited partnership (as may be appropriate) of the Borrower in such jurisdictions;
(hg) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower General Partner in the form attached hereto as EXHIBIT GExhibit H;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has [$700,000 700,000] or more of Availability, after giving effect to the Revolving Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to the Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of Tidel Engineering, Inc. between February 28, 1999 and the Borrower since April 30merger of Tidel Engineering, 1997Inc. into Borrower;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate partnership structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing pre-closing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 Section 8.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 Section 10.9 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.
Appears in 1 contract
First Loan. In addition to the matters described in SECTION 4.1 hereof, the obligation of Lender to make the initial Loan or the obligation of the Lender to issue the first Letter of Credit is subject to the (i) receipt by the Lender Bank of each a duly executed Note, dated on or before the date of such Loan, complying with the following, in Proper Form:provisions of Section 2.3;
(aii) all legal matters incident to this Agreement and the Note, executed by and the Borrowertransactions contemplated hereby and thereby shall be reasonably satisfactory to ▇▇▇▇ & Valentine, L.L.P., counsel for the Bank;
(biii) the Security Documents executed receipt by the Bank of (A) a copy of the Borrower;
's certificate of incorporation, as amended, certified by the appropriate office of the State of Delaware; (cB) a certificate executed by of such office, dated as of a recent date, as to the good standing and charter documents of the Borrower on file; and (C) a certificate of the Secretary or an Assistant Secretary of the Borrower dated as the date of such Loan and certifying (1) that the certificate of incorporation of the Borrower has not been amended since the date thereofof the last amendment thereto indicated on the certificate furnished pursuant to clause (B) above, (2) as to the absence of dissolution or liquidation proceedings by or (to the Borrower's knowledge) against the Borrower, (3) that attached thereto is a true and complete copy of the by-laws of the Borrower as in effect on the date of such certification, (4) that attached thereto is a true, correct and complete copy of resolutions adopted by the board of directors of the Borrower authorizing the execution, delivery and performance of this Agreement and the Note and that said resolutions have not been amended and are in full force and effect on the date of such certificate and (5) as to the incumbency and specimen signatures of each officer of the Borrower executing this Agreement and the Note, or any other document delivered in connection herewith or therewith;
(iv) receipt by the Bank of an opinion of ▇▇▇▇ and ▇▇▇▇, LLP, counsel for the Borrower, substantially in the form attached of Exhibit C hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in covering such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and additional matters relating to the transactions contemplated hereby as the Lender Bank may reasonably request, executed ;
(v) receipt by the Borrower or any other Person required Bank of a certificate signed by the LenderPresident of the Borrower, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at effect set forth in clauses (ii) and (iii) of Section 3.1; and
(vi) receipt by the time Bank of all documents it may reasonably request relating to the initial Loan, (1) the ownership, corporate structure, solvency and capitalization existence of the Borrower shall be and its authority to execute, deliver and perform this Agreement, the Note and the Applications and the validity of this Agreement, the Note and the Applications and any other matters relevant hereto or thereto, all in form and substance reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderBank.
Appears in 1 contract
Sources: Credit Agreement (Microstrategy Inc)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the any Lender's obligation of Lender to make the initial first Loan hereunder:
(1) The Companies shall have delivered, or shall have caused to be delivered, to the obligation Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel, each of the Lender to issue following (with sufficient copies for each of the first Letter Lenders):
(i) A duly executed original of Credit is subject to this Agreement;
(ii) A duly executed original of the receipt by Security Agreements, of the Lender Guaranties, of the Custodian Agreement and of the Subordination Agreement;
(iii) Duly executed originals of each of the following, in Proper Form:
(a) the Note, executed by the BorrowerNotes;
(bA) the Security Documents Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the BorrowerAdministrative Agent, in its reasonable discretion, to obtain for the Administrative Agent on behalf of the Lenders a perfected, first priority security interest in and lien upon the Collateral, (B) searches identifying all of the financing statements on file with respect to each Company in all jurisdictions in which the financing statements referred to in subclause (A) of this clause (iv) will be filed and (C) duly executed copies of all financing termination statements (UCC-3) relating to the termination of the First Union Facility and the Prudential Facility;
(cv) a certificate A Pledge Agreement, duly executed by EGI and each Company together with (A) the stock certificates representing (1) all of the common stock of the Companies and Sterling, in the case of EGI, and (2) all of the common stock of EMC-TN in the case of HomeGold, (B) all inter-company promissory notes and (C) other documents and instruments required to be pledged and delivered to the Administrative Agent by the terms of each such Pledge Agreement, in each case accompanied by undated stock powers or bond powers (as applicable) executed in blank or other instruments of transfer;
(vi) Such credit applications, financial statements, authorizations and such information concerning the Companies taken as a whole or any of them or the Guarantor or the business, operations and conditions (financial and otherwise) of the Companies taken as a whole or any of them or the Guarantor as any Lender may reasonably request;
(vii) Certified copies of resolutions of the Board of Directors of each of the Companies and of the Guarantor Sterling, and EMC-TN approving the execution and delivery of the Credit Documents to which such Person is a party, the performance of the Obligations and any other obligations thereunder and the consummation of the transactions contemplated thereby;
(viii) A certificate of the Secretary or an Assistant Secretary of each of the Borrower Companies and of the Guarantor Sterling, and EMC-TN certifying the names and true signatures of the officers of such Person authorized to execute and deliver the Credit Documents to which such Person is a party, and the other documents to be delivered by each Company, the Guarantor, Sterling and EMC-TN to which such Person is a party, including, without limitation, each Loan Request;
(ix) A copy of the Articles of Incorporation of each of the Companies and of the Guarantor, Sterling and EMC-TN, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(x) A copy of the Bylaws of each of the Companies and of the Guarantor Sterling, and EMC-TN, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(xi) A certificate (A) of the Secretary of State of the State of South Carolina, certifying as of a recent date that HomeGold is in good standing; (B) of the Secretary of State of the State of South Carolina, certifying as of a recent date that CII is in good standing; and (C) of the Secretary of State of the State of South Carolina, certifying as of a recent date that EGI is in good standing;
(xii) An opinion of counsel for the Companies, the Guarantor, Sterling and EMC-TN substantially in the form of Exhibit K attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(xiii) Evidence satisfactory to the Administrative Agent that each of the Funding Accounts and the Settlement Accounts has been opened;
(xiv) A duly completed Borrowing Base Certificate dated as of the date thereofof the first Loan hereunder, substantially and certified by the Administrative Company on behalf of the Companies to be true in the form attached hereto as EXHIBIT Fall respects;
(dxv) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporationAn Exception Report, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer from the Custodian duly completed relating to the Eligible Mortgage Loans to be pledged to the Administrative Agent, on behalf of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examinationLenders, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(kxvi) a legal opinion from counsel for A certificate of insurance evidencing insurance as is required by Section 6.08 hereof, naming the Borrower (said counsel to be reasonably acceptable to Lender)Administrative Agent as loss payee or additional insured, dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretionappropriate;
(lxvii) certificates A form of insurance satisfactory the Wet Closing Agent Agreement certified by the Administrative Company as a true and correct copy thereof shall be delivered to and approved by the Lender in all respects evidencing Administrative Agent; and
(xviii) Such other approvals, opinions or documents as the existence Administrative Agent may reasonably request.
(2) All acts and conditions (including, without limitation, the obtaining of all insurance any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be maintained done and performed and to have happened precedent to the execution, delivery and performance of the Credit Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, including, without limitation, documentation for corporate and legal proceedings in connection with the transactions contemplated by the Borrower Credit Documents shall be satisfactory in form and substance to the Administrative Agent and its counsel.
(4) All fees required to be paid on or before the date hereof pursuant to Section 2.07(f) above and any other accrued and unpaid fees or commissions due hereunder or in connection herewith, and all expenses due to the terms Administrative Agent which are required to be paid on or before the date hereof, shall have been paid prior to (or will be paid concurrently with) the making of this Agreement and the Security Documents;first Loan hereunder.
(m5) the Borrower and the Lender The Companies shall have entered into delivered to the Lockbox Agreements;Administrative Agent and each Lender a copy of each of EGI's, HomeGold's and CII's audited consolidated and consolidating financial statements for the fiscal year ended December 31, 1997, bearing an unqualified opinion from KPMG Peat Marwick.
(n6) copies of After giving effect to all major customer and supplier contracts with respect to Loans outstanding on the Borrower;
Closing Date (o) copies of including all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents ), the Availability, calculated on a combined basis for the Companies, shall not be less than $30,000,000 and any other instruments or documents consistent with the terms of this Agreement and relating Companies shall deliver to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time Administrative Agent a certificate of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization Designated Financial Officer of the Borrower shall be reasonably satisfactory to Administrative Company certifying that the Lender in all respects; (2) the Lender shall have had the opportunityAvailability, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct calculated on a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary combined basis for the purpose of perfecting such LiensCompanies, is not less than $30,000,000 and with respect to Collateral covered by containing the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lendercalculation thereof.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the any Lender's obligation of Lender to make the initial first Loan hereunder:
(1) The Company shall have delivered, or shall have caused to be delivered, to the obligation Administrative Agent, in form and substance satisfactory to the Administrative Agent and its counsel, each of the Lender to issue following (with sufficient copies for each of the first Letter Lenders):
(i) A duly executed copy of Credit is subject to this Agreement;
(ii) A duly executed copy of the receipt by the Lender Security Agreement, of each of the following, in Proper Form:
(a) Guaranties and of the Note, executed by the BorrowerSubordination Agreement;
(biii) Duly executed copies of each of the Security Documents executed by the BorrowerNotes;
(civ) Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Collateral Agent, in its reasonable discretion, to obtain for the Collateral Agent on behalf of the Lenders a perfected, first priority security interest in and lien upon the Collateral;
(v) Such credit applications, financial statements, authorizations and such information concerning the Company or any of the Guarantors or the business, operations and conditions (financial and otherwise) of the Company or any of the Guarantors as any Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Company and the Guarantors approving the execution and delivery of the Credit Documents to which such Person is a party, the performance of the Obligations and any other obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate executed by of the Secretary or an Assistant Secretary of each of the Borrower Company and the Guarantors certifying the names and true signatures of the officers of such Person authorized to execute and deliver the Credit Documents to which such Person is a party;
(viii) A copy of the Articles of Incorporation of each of the Company and the Guarantors, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Company and the Guarantors, certified by the respective Secretary or an Assistant Secretary of such Person as of the date of this Agreement as being accurate and complete;
(x) A certificate (A) of the Secretary of State of the State of South Carolina, certifying as of a recent date that the Company is in good standing; (B) of the Secretary of State of South Carolina, certifying as of a recent date that EFC is in good standing; (C) of the Secretary of State of the State of South Carolina, certifying as of a recent date that EGI is in good standing; and (D) of the Secretary of State of the State of South Carolina, certifying as of a recent date that CII is in good standing;
(xi) An opinion of counsel for the Company and the Guarantors substantially in the form of Exhibit D attached hereto and covering such other matters as the Administrative Agent may reasonably request;
(xii) Evidence satisfactory to the Administrative Agent that each of the Funding Account and the Settlement Account has been opened;
(xiii) A duly completed Borrowing Base Schedule dated as of the date thereof, substantially of the first Loan hereunder and certified by the Company to be true in the form attached hereto as EXHIBIT Fall respects;
(dxiv) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as A Covenant Compliance Certificate demonstrating in detail satisfactory to the continued existence of Administrative Agent and the Borrower Lenders that (A) the Company is in compliance with the State of Texas;
covenants set forth in Paragraphs 7(j) and 7(k) below, (fB) a certificate from EGI is in compliance with the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower covenants set forth in the State of Texas;
(gParagraphs 11(l) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate11(m) of the Borrower Parent Guaranty to which EGI is a party, and (C) CII is in such jurisdictions;compliance with the covenants set forth in Paragraph 11(l) of the Affiliate Guaranty; and
(hxv) A written selection by the most recent schedule and aging Company of Receivables of either the Borrower (dated within thirty (30) days of Applicable Corporate Base Rate or the Closing Date), Applicable Fed Funds Rate as well as a current Borrowing the Alternate Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;Rate.
(i2) a copy of the field examinationAll acts and conditions (including, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the further conditions thatexecution, at the time delivery and performance of the initial LoanCredit Documents and to constitute the same legal, (1) the ownershipvalid and binding obligations, corporate structureenforceable in accordance with their respective terms, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Credit Documents shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); Administrative Agent and its counsel.
(34) all such actions as All fees required to be paid on or before the Lender shall reasonably require to perfect the Liens created date hereof pursuant to the Security Documents Paragraph 2(r) above shall have been taken, including without limitation, the delivery paid prior to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4or will be paid concurrently with) the Lender shall also have received evidence reasonably satisfactory to it that making of the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); Loan hereunder.
(5) the Borrower The Company shall have paid all fees owing delivered to the Lender Administrative Agent a true and complete copy of the CII Management Agreement duly executed by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lenderparties thereto.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Emergent Group Inc)
First Loan. In addition As conditions precedent to any Lender's obligation to fund the first Loan hereunder:
(1) The Company shall have delivered or shall have had delivered to the matters described Administrative Agent, in SECTION 4.1 hereofform and substance reasonably satisfactory to the Lenders and their counsel, the obligation of Lender to make the initial Loan or the obligation each of the Lender to issue following:
(i) A duly executed copy of this Agreement;
(ii) A duly executed copy of the first Letter of Credit is subject to the receipt by the Lender Security Agreement;
(iii) Duly executed originals of each of the following, in Proper Form:
(a) the Note, executed by the BorrowerNotes;
(biv) the Security Documents Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the BorrowerAdministrative Agent, in its reasonable discretion, to create and/or continue in favor of the Collateral Agent for the pari passu benefit of the Lenders a first priority perfected security interest in and lien upon the Collateral;
(cv) Certified copies of resolutions of the Board of Directors of the Company approving the execution and delivery of the Loan Documents, the performance of the Obligations and the consummation of the transactions contemplated thereby;
(vi) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to execute the Loan Documents;
(vii) [Intentionally Omitted]
(viii) A copy of the Articles of Incorporation of the Company, certified by the Secretary of State of the State of California as of a certificate executed recent date;
(ix) A copy of the Bylaws of the Company, certified by the Secretary or an Assistant Secretary of the Borrower Company as of the date of this Agreement as being accurate and complete;
(x) A certificate of the Secretary of State of the State of California certifying that the Company is in good standing as of a recent date;
(xi) A certificate of an executive officer of the Company in the form of that attached hereto as Exhibit D dated as of the date thereof, substantially in the form attached hereto as EXHIBIT Fof this Agreement;
(dxii) certified copies A certificate of a Responsible Financial Officer of the Organizational Documents Company, demonstrating in detail satisfactory to the Administrative Agent the Company's compliance with the financial covenants set forth in Paragraph 10(m) below at and as of December 31, 1998 and the Borrowerfinancial covenants set forth in Paragraphs 10(i), (j), (k) and (1) at and as of April 30, 1999;
(exiii) a certificate from the Secretary of State or other appropriate public official A Loan Request requesting Loans hereunder in an amount not less than all Indebtedness of the State of Texas Company under the Existing Credit Facilities as to the continued existence of the Borrower in the State of Texas;if such date; and
(fxiv) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be Evidence reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance satisfactory to the Lender in Administrative Agent that upon the funding of the first Loan hereunder all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;Company outstanding under the Existing Credit Facility will be paid in full and the credit facility evidenced thereby terminated.
(s2) evidence satisfactory to the Lender that there has been no material adverse change in the businessAll acts and conditions precedent (including, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the further conditions thatexecution, at the time delivery and performance of the initial LoanLoan Documents and to constitute the same legal, (1) the ownership, corporate structure, solvency valid and capitalization binding obligations of the Borrower shall be reasonably satisfactory to the Lender Company, enforceable in all respects; (2) the Lender accordance with their respective terms, shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Loan Documents, shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); Lenders and their counsel.
(34) all such actions as the Lender shall reasonably require All fees required to perfect the Liens created be paid pursuant to Paragraph 40) above on the Security Documents Effective Date shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lenderpaid.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (First Mortgage Corp /Ca/)
First Loan. In addition to the matters described in SECTION 4.1 hereof, the The obligation of the Lender to make a Loan shall be subject to satisfaction of the initial following conditions, unless waived in writing by the Lender:
(a) all legal matters and Loan Documents incident to the transactions contemplated hereby shall be satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer of the Company, upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying (1) all requisite action taken in connection with the transactions contemplated hereby and (2) the names, signatures, and authority of the Company's authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, the Company; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer of the Company; (d) the Company shall have paid to the Lender the fee(s) then due and payable in accordance with ARTICLE II of this Agreement; (e) the Lender shall have received the written opinion of legal counsel selected by the Company and satisfactory to the Lender, dated the date of this Agreement, in the form of Exhibit C attached to this Agreement, and covering such other matter(s) as the Lender may reasonably require; (f) the Lender shall have received written instructions by the Company with respect to disbursement of the proceeds of the Loan; (g) the Lender shall have received all Security Instruments duly executed by all parties thereto; provided, the obligation of the Lender to issue make any Loan under the first Letter Advised Line of Credit is subject to the receipt by the Lender of each of the following, in Proper Form:
(a) the Note, executed by the Borrower;
(b) the Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l) certificates discretion of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.
Appears in 1 contract
Sources: Credit Agreement (Collaborative Clinical Research Inc)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, the Lender's obligation of Lender to make the initial first Loan or hereunder:
(1) The Companies shall have delivered to the obligation of Lender, in form and substance satisfactory to the Lender to issue the first Letter of Credit is subject to the receipt by the Lender of and its counsel, each of the following, in Proper Form:
(a) the Note, executed by the Borrower;
(b) the Security Documents executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a A duly executed copy of this Agreement;
(ii) A duly executed copy of the field examination, including a takeover field examination, Security Agreement and of the Borrower's books and records and the results of such field examinationGuaranty;
(jiii) evidence that A duly executed copy of the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing DateNote;
(kiv) a legal opinion from counsel Duly executed copies of all financing statements and other documents, instruments and agreements, properly executed, deemed necessary or appropriate by the Lender, in its reasonable discretion, to obtain for the Borrower (said counsel to be reasonably acceptable to Lender)Lender a perfected, dated as of first priority security interest in and lien upon the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretionCollateral;
(lv) certificates of insurance satisfactory to Such credit applications, financial statements, authorizations and such information concerning the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement Companies and the Security Documents;
their respective businesses, operations and conditions (mfinancial and otherwise) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request;
(vi) Certified copies of resolutions of the Board of Directors of each of the Companies and of NFI Holding approving the execution and delivery of the Credit Documents to which such Company or NFI Holding, executed as applicable, is a party, the performance of the Obligations thereunder and the consummation of the transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant Secretary of each of the Companies and of NFI Holding certifying the names and true signatures of the officers of such Company or NFI Holding, as applicable, authorized to execute and deliver the Credit Documents to which such Company or NFI Holding, as applicable, is a party;
(viii) A copy of the Articles of Incorporation of each of the Companies and of NFI Holding, certified by the Borrower respective Secretary or any an Assistant Secretary of such Company or NFI Holding, as applicable, as of the date of this Agreement as being accurate and complete;
(ix) A copy of the Bylaws of each of the Companies and of NFI Holding, certified by the respective Secretary or an Assistant Secretary of such Company or NFI Holding, as applicable, as of the date of this Agreement as being accurate and complete;
(A) A certificate of the Secretary of State of the Commonwealth of Virginia, certifying as of a recent date that NovaStar Mortgage is in good standing and (B) a certificate of the Secretary of State of the State of California certifying as of a recent date that NovaStar Mortgage is in good standing as a foreign corporation in such jurisdiction;
(A) A certificate of the Secretary of State of the State of Maryland, certifying as of a recent date that NovaStar Financial is in good standing and (B) a certificate of the Secretary of State of the State of Kansas certifying as of a recent date that NovaStar Financial is in good standing as a foreign corporation in such jurisdiction;
(xii) A certificate of the Secretary of State of the State of Delaware, certifying as of a recent date that NFI Holding is in good standing;
(xiii) An opinion of counsel for the Companies and NFI Holding substantially in the form of Exhibit D attached hereto and covering such other Person required matters as the Lender may reasonably request;
(xiv) Evidence satisfactory to the Lender that each of the Funding Account and the Settlement Account has been opened;
(xv) A schedule of the initial Approved Investors duly approved by the Lender;
(xvi) A duly completed Borrowing Base Schedule dated as of the date of the first Loan hereunder and certified by the Companies to be true in all respects; and
(xvii) A Covenant Compliance Certificate demonstrating in detail satisfactory to the Lender that the Companies are in compliance with the covenants set forth in Paragraphs 7(h) and 7(i) below.
(2) All acts and conditions (including, including without limitation, the Lockbox Agreements; obtaining of any necessary regulatory approvals and subject the making of any required filings, recordings or registrations) required to be done and performed and to have happened precedent to the further conditions thatexecution, at the time delivery and performance of the initial LoanCredit Documents and to constitute the same legal, (1) the ownershipvalid and binding obligations, corporate structureenforceable in accordance with their respective terms, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunitybeen done and performed and shall have happened in due and strict compliance with all applicable laws.
(3) All documentation, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall includeincluding, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer documentation for corporate and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (legal proceedings in connection with the results of such examination transactions contemplated by the Credit Documents shall be satisfactory in form and audits to have been satisfactory substance to the Lender in all respects); and its counsel.
(34) all such actions as All fees required to be paid on or before the Lender shall reasonably require to perfect the Liens created date hereof pursuant to the Security Documents Paragraph 2(l) above shall have been taken, including without limitation, the delivery paid prior to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4or will be paid concurrently with) the Lender shall also have received evidence reasonably satisfactory to it that making of the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the LenderLoan hereunder.
Appears in 1 contract
Sources: Mortgage Loan Warehousing Agreement (Novastar Financial Inc)
First Loan. In addition As conditions precedent to the matters described in SECTION 4.1 hereof, Effective Date and the obligation of Lender to make the initial Loan or the obligation funding of the Lender to issue the first Letter of Credit is subject Loan hereunder: (1) There shall have been delivered to the receipt by Lead Administrative Agent, in form and substance and in quantities reasonably satisfactory to the Lender Lenders and their counsel, each of the following: (i) A duly executed copy of this Agreement; (ii) A duly executed copy of each of the followingGuaranty and the Subordination Agreement; (iii) A duly executed copy of the Fee Letter; (iv) Such credit applications, in Proper Form:
financial statements, pro forma financial statements, authorizations and information concerning the Company and its business, operations and condition (afinancial and otherwise) as the Note, executed Lead Administrative Agent or any Lender may reasonably request; (v) Certified copies of resolutions of the Boards of Directors of the Company and the Parent approving the execution and delivery of all documents required to be delivered by the Borrower;
Company and the Parent hereunder; (bvi) the Security Documents executed by the Borrower;
(c) a certificate executed by Certificates of the Secretary or an Assistant Secretary of each of the Borrower Company and the Parent certifying the names, incumbency and true signatures of the officers of the Company and the Parent authorized to sign the documents required to be executed and delivered by the Company and the Parent hereunder; (vii) An opinion of counsel for the Company and the Parent (which counsel may be in-house counsel) in form and substance satisfactory to the Lenders and covering such matters as the Lenders may reasonably request; (viii) A certificate of an executive officer of each of the Company and the Parent in the form of that attached hereto as Exhibit A dated as of the date thereof, substantially in the form attached hereto as EXHIBIT F;
of this Agreement; and (dix) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas as to the continued existence of the Borrower in the State of Texas;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas as to the good standing of the Borrower in the State of Texas;
(g) certificates from the appropriate public officials of those jurisdictions where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base A Covenant Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT G;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
(j) evidence that the Borrower has $700,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel for the Borrower (said counsel to be reasonably acceptable to Lender)Certificate, dated as of February 28, 1998, for each of the Closing Date, addressed to Company and the Lender and acceptable Parent demonstrating in all respects to the Lender in its sole and absolute discretion;
(l) certificates of insurance detail satisfactory to the Lender Lenders the Company's compliance with the covenants set forth in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement Paragraphs 10(g), 10(i) and 10(j) below, and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where BorrowerParent's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent compliance with the terms of this Agreement financial covenants set forth in Paragraphs 11(d) and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects11(e); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall be reasonably satisfactory to counsel for the Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Countrywide Credit Industries Inc)
First Loan. In addition to the matters described in SECTION Section 4.1 hereof, the obligation of any Lender to make the initial Loan or the obligation of the Lender Agent to issue the first Letter of Credit is subject to the receipt by the Lender Agent of each of the following, in Proper Form:
(a) the NoteNotes, executed by the Borrower;
(b) the Security Documents Documents, executed by the Borrower;
(c) a certificate executed by the Secretary or Assistant Secretary of the Borrower dated as of the date thereof, substantially in the form attached hereto as EXHIBIT FExhibit G;
(d) certified copies of the Organizational Documents of the Borrower;
(e) a certificate from the Secretary of State or other appropriate public official of the State of Texas Delaware 104 as to the continued existence of the Borrower in the State of TexasDelaware;
(f) a certificate from the Office of the Comptroller or other appropriate public official of the State of Texas Delaware as to the good standing of the Borrower in the State of TexasDelaware;
(g) certificates from the appropriate public officials of those jurisdictions jurisdictions, including without limitation, the State of Texas, where the nature of the Borrower's business makes it necessary or desirable to be qualified to do business as a foreign corporation, as to the existence, good standing and qualification as a foreign corporation (as may be appropriate) of the Borrower in such jurisdictions;
(h) the most recent schedule and aging of Receivables of the Borrower (dated within thirty (30) days of the Closing Date), as well as a current Borrowing Base Compliance Certificate executed by a Responsible Officer of the Borrower in the form attached hereto as EXHIBIT GExhibit H;
(i) a copy of the field examination, including a takeover field examination, of the Borrower's books and records and the results of such field examination;
; 105 (j) evidence that the Borrower has $700,000 4,000,000 or more of Availability, after giving effect to the Loans occurring and the Letters of Credit issued on the Closing Date;
(k) a legal opinion from counsel , together with sufficient evidence and written projections to confirm to the Agent's reasonable satisfaction that the projected Availability for the Borrower next twelve (said counsel to be reasonably acceptable to Lender), dated as of the Closing Date, addressed to the Lender and acceptable in all respects to the Lender in its sole and absolute discretion;
(l12) certificates of insurance satisfactory to the Lender in all respects evidencing the existence of all insurance required to be maintained by the Borrower pursuant to the terms of this Agreement and the Security Documents;
(m) the Borrower and the Lender shall have entered into the Lockbox Agreements;
(n) copies of all major customer and supplier contracts with respect to the Borrower;
(o) copies of all employment agreements, management fee agreements and tax sharing agreements;
(p) copies of all lease and warehouse agreements entered into by Borrower;
(q) waivers or subordinations of any and all landlord and warehousemen liens (whether statutory or contractual) held by any owner, or warehousemen, of each real Property leased by the Borrower or where Borrower's Property is warehoused;
(r) copies of all loan agreements, notes and other documentation evidencing any Indebtedness of the Borrower;
(s) evidence satisfactory to the Lender that there has been no material adverse change in the business, assets, operations, or financial condition of the Borrower since April 30, 1997;
(t) an executed disbursement authorization letter from the Borrower to the Lender with respect to the disbursement of the proceeds of the Loans and the issuance of the Letters of Credit, if any, to be made or issued on the Closing Date;
(u) all other Loan Documents and any other instruments or documents consistent with the terms of this Agreement and relating to the transactions contemplated hereby as the Lender may reasonably request, executed by the Borrower or any other Person required by the Lender, including without limitation, the Lockbox Agreements; and subject to the further conditions that, at the time of the initial Loan, (1) the ownership, corporate structure, solvency and capitalization of the Borrower shall be reasonably satisfactory to the Lender in all respects; (2) the Lender shall have had the opportunity, if they elect, to examine the books of account and other records and files of the Borrower and to make copies hereof, and to conduct a preclosing audit which shall include, without limitation, verification of Eligible Receivables, verification of satisfactory status of customer and supplier accounts, payment of payrolls taxes and accounts payable and formulation of an opening Borrowing Base as of months after the Closing Date (with the results of such examination and audits to have been satisfactory to the Lender in all respects); (3) all such actions as the Lender shall reasonably require to perfect the Liens created pursuant to the Security Documents shall have been taken, including without limitation, the delivery to the Lender of all Property with respect to which possession is necessary for the purpose of perfecting such Liens, and with respect to Collateral covered by the Security Agreements, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements; (4) the Lender shall also have received evidence reasonably satisfactory to it that the Liens created by the Security Documents constitute first priority Liens (except for any Liens expressly provided for in SECTION 7.2 below); (5) the Borrower shall have paid all fees owing to the Lender by the Borrower under this Agreement, including without limitation, legal fees and expenses described in SECTION 9.09 or otherwise and (6) all other legal matters incident to the transactions herein contemplated shall will be reasonably satisfactory to counsel for the Lender.no less than $4,000,000;
Appears in 1 contract