Condition Subsequent. As a condition subsequent to initial closing hereunder, Borrower shall perform or cause to be performed the following (the failure by Borrower to so perform or cause to be performed constituting an Event of Default): (a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction; (b) within 30 days of the Closing Date, deliver to Foothill the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel; (c) on or before December 31, 1999, Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect: (i) The IPS Copyright Security Agreement; and (ii) The IPS Trademark Security Agreement; (d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date of such request: (i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located; (ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property; (iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and (iv) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion; (e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) required to be registered under Section 6.17 have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement; (f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and (g) [intentionally omitted] (h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of the Closing Date, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that with respect to any "Pledged Foreign Issuer" (as defined in the Pledge Agreement) as of the Closing Date, the Obligors need not (i) deliver or cause to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Default.
Appears in 1 contract
Condition Subsequent. As a condition subsequent to the initial closing hereunder, Borrower Borrowers shall perform or cause to be performed the following (the failure by Borrower Borrowers to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill Agent the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Foothill Agent and its counsel;
(b) within 45 days of the Closing Date, deliver to Agent duly executed originals of the Mortgages, in form and substance satisfactory to Agent and its counsel;
(c) on or before December 31, 1999, Foothill shall have received each within 45 days of the following documents, duly executed, and each such document shall be in full force and effect:
(i) The IPS Copyright Security Agreement; and
(ii) The IPS Trademark Security Agreement;
(d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date deliver to Agent copies of such request:
(i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and
(iv) Foothill shall have received a all previous completed phase-I environmental report reports that are available and a real estate survey shall have been completed surveys with respect to such after acquired the Real Property and copies thereof delivered to FoothillCollateral; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill Agent in its sole reasonable discretion;
(ed) within 90 45 days following of the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) required deliver to be registered under Section 6.17 have been registered with the United States Copyright Office Agent mortgagee title insurance policies (or are marked commitments to issue the subject of same) for the Real Property Collateral issued by a diligently prosecuted application therefor)title insurance company satisfactory to Agent (each a "Mortgage Policy" and, and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either casecollectively, the "IG Australia Payoff DateMortgage Policies"), execute and deliver an appropriate supplement ) in amounts satisfactory to Agent assuring Agent that the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien Mortgages on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien Real Property Collateral are valid and enforceable second priority mortgage Liens on such shares will not Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the Mortgage Policies shall otherwise be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holderAgent; and
(ge) [intentionally omitted]
(h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of after the Closing Date, establish with banks acceptable to the original certificates representing Agent, one or evidencing all more depository accounts, under the dominion and control of the Pledged Shares (as defined in Agent and otherwise acceptable to the Pledge Agreement)Agent, together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that with respect to any "Pledged the Collections of each Eligible Foreign Issuer" (as defined in the Pledge Agreement) as of the Closing Date, the Obligors need not (i) deliver or cause to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of DefaultGuarantor.
Appears in 1 contract
Samples: Loan and Security Agreement (General Datacomm Industries Inc)
Condition Subsequent. As a condition subsequent to the making of the initial closing hereunderAdvance, Borrower shall perform or cause to be performed the following (the failure by Borrower to so perform or cause to be performed constituting constituting, in the case of SECTIONS 3.3(a) AND (c), an Event of DefaultDefault hereunder, and, in the case of SECTION 3.3(b), an event that would entitle Foothill thenceforth and at all times thereafter to exclude from Eligible Accounts, and from the Borrowing Base, all Canadian Accounts, without such exclusion being considered an Availability Reduction hereunder):
(a) within sixty (i60) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10SECTION 6.10 hereof, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel;
(cb) on or before December 31, 1999, Foothill shall have received each within ninety (90) days of the following documentsClosing Date, deliver to Foothill a duly executedexecuted original of the Lockbox Agreement with The Royal Bank of Canada, and each or such document other bank reasonably acceptable to Foothill, which shall be in full force and effect:;
(ic) The IPS Copyright Security Agreement; and
prior to the sixtieth (ii60th) The IPS Trademark Security Agreementday following the Closing Date, Borrower shall have prepared and provided to Foothill a formalized written contingency plan for backup computer operations, in reasonable detail and including cost estimates and feasibility analysis, which plan shall be reasonably satisfactory to Foothill;
(d) upon the request within thirty (30) days of Foothill (if ever) after the Closing Date, within 30 days after deliver to Foothill possession of the date Pledged Shares in respect of such request:
each of (i) WXL Holdings, Ltd., a Mortgage on any Real Property acquired by Borrower after corporation organized under the laws of the United Kingdom, and (ii) WorldXChange Ltd., a corporation organized under the laws of the United Kingdom, together with duly executed blank stock powers with respect thereto;
(e) within twenty-one (21) days of the Closing Date shall have been date, deliver to Foothill possession of the Pledged Shares in respect of WorldXChange Pty Limited, a corporation organized under the laws of Australia, together with duly executed and delivered by Borrowerblank stock powers with respect thereto;
(f) within ninety (90) days of the Closing Date, deliver to Foothill possession of the Pledged Shares in respect of WorldXChange Communications SARL, a corporation organized under the laws of France together with duly executed blank stock powers with respect thereto or otherwise grant a security interest in such shares to the satisfaction of Foothill, in its reasonable discretion; and
(g) for the period of sixty (60) days following the Closing Date, use its reasonable best efforts to open a credit card collection account with a bank reasonably acceptable to Foothill, and the same enter into a Lockbox Agreement with such depositary bank which shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and
(iv) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;
(e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) required to be registered under Section 6.17 have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and
(g) [intentionally omitted]
(h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of the Closing Date, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that with respect to any "Pledged Foreign Issuer" (as defined in the Pledge Agreement) as of the Closing Date, the Obligors need not (i) deliver or cause to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Default.
Appears in 1 contract
Samples: Loan and Security Agreement (Communication Telesystems International)
Condition Subsequent. As a condition subsequent to initial closing hereunder, Borrower shall perform or cause to be performed the following (the failure by Borrower to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel;.
(cb) on or as soon as possible after the Closing Date (and, in any event, within 30 days of the Closing Date):
(i) to the extent not available on or before December 31, 1999the Closing Date under Section 3.1, Foothill shall have received each a Mortgage Policy in respect of the following documentsHuntsville Property assuring Foothill that the Mortgage on the Huntsville Property is a valid and enforceable first priority mortgage Lien on the Huntsville Property free and clear of all defects and encumbrances except Permitted Liens, and such Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to Foothill; and
(ii) Foothill shall have received a phase- I environmental report and a real estate survey shall have been completed with respect to the Huntsville Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion; and
(iii) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received the Lockbox Agreements, duly executed, and each such document shall be in full force and effect.
(c) upon the request of Foothill (if ever) after the Closing Date, within 60 days after the date of such request:
(i) The IPS Copyright Security Agreementthe Mortgage on the Chelmsford Property shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for Middlesex County, Massachusetts;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on the Chelmsford Property;
(iii) Foothill shall have received a preliminary title report in respect of the Chelmsford Property in form and substance reasonably satisfactory to Foothill; and
(iiiv) The IPS Trademark Security Agreement;Foothill shall have received a phase- I environmental report and a real estate survey shall have been completed with respect to the Chelmsford Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion.
(d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date of such request:
(i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and
(iv) Foothill shall have received a phase-phase- I environmental report and a real estate survey shall have been completed with respect to the such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;.
(e) in the event the Reston Sale/Leaseback is not consummated within 90 180 days following of the Closing Date:
(i) the Mortgage on the Reston Property shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for Fairfax County, Virginia;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory evidence that all existing copyrights to Foothill in its sole discretion, in respect of Borrower the Mortgage on the Reston Property;
(other than Exempt Copyrightsiii) required Foothill shall have received a preliminary title report in respect of the Reston Property in form and substance reasonably satisfactory to be registered under Section 6.17 Foothill; and
(iv) Foothill shall have received a phase- I environmental report and a real estate survey shall have been registered completed with respect to the United States Copyright Office (Reston Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or are surveys, the subject scope of a diligently prosecuted application therefor)the reports or surveys, and that all such copyrights (other than Exempt Copyrights) and any proceeds the results thereof are specifically encumbered by the Copyright Security Agreement;shall be acceptable to Foothill in its sole discretion.
(f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and.
(g) [intentionally omitted]within 90 days of the Closing Date, Foothill shall have completed appraisals of the Equipment and the results of such appraisals shall be satisfactory to Foothill.
(h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of the Closing Date, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, ;
(i) from and after the Closing Date up until the date that with respect to any "Pledged Foreign Issuer" (as defined in the Pledge Agreement) as of is 90 days after the Closing Date, the Obligors need not (i) deliver or cause Borrower shall use its continued best efforts to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuerobtain Collateral Access Agreements from lessors, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfectingwarehousemen, under such foreign lawbailees, the Lien of and other third persons as Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Defaultmay require.
Appears in 1 contract
Condition Subsequent. As a condition subsequent to initial closing hereunder, Borrower Borrowers shall perform or cause to be performed the following (the failure by Borrower Borrowers to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 60 days of the Closing Date, deliver to Foothill the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel;
(cb) on or before December 31, 1999, Foothill shall have received each within 60 days of the following documents, duly executed, and each such document shall be in full force and effect:
(i) The IPS Copyright Security Agreement; and
(ii) The IPS Trademark Security Agreement;
(d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date of such request:
(i) hire a Mortgage on any new chief financial officer of Celebrity, and (ii) deliver to Foothill mortgagee title insurance policies (or marked commitments to issue the same) for the Real Property acquired Collateral issued by Borrower after a title insurance company satisfactory to Foothill (each a "Mortgage Policy" and, collectively, the Closing Date shall have been duly executed "Mortgage Policies") in amounts satisfactory to Foothill assuring Foothill that the Mortgages on such Real Property Collateral are valid and delivered by Borrowerenforceable second priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the same Mortgage Policies shall otherwise be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill;
(c) within 30 days of the Closing Date, terminate the lockbox arrangements in place in North Carolina;
(d) within 21 days of the Closing Date, deliver original stock certificates, with stock powers endorsed in blank, for the largest whole number of shares of stock that is less than 66.5% of the outstanding shares of Celebrity Hong Kong, together with an opinion of Hong Kong counsel to the effect that all necessary legal steps have been taken in connection with the perfection of Foothill's Lien on the Celebrity Hong Kong shares, and the practical realization of such collateral; and
(ive) by April 15, 1998 Foothill shall have received from Celebrity a phase-I environmental report and a real estate survey shall have been completed business plan (with respect to such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained projections) for such reports or surveysBorrowers reflecting periods through June 30, the scope 1999, all of the reports or surveys, and the results thereof which shall be acceptable to Foothill in its sole discretion;
(e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) required to be registered under Section 6.17 have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and
(g) [intentionally omitted]
(h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of the Closing Date, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that with respect to any "Pledged Foreign Issuer" (as defined in the Pledge Agreement) as of the Closing Date, the Obligors need not (i) deliver or cause to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Default.
Appears in 1 contract
Condition Subsequent. As a condition subsequent to initial closing hereunder, Borrower Borrowers shall perform or cause to be performed the following (the failure by Borrower Borrowers to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill the shall have received certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, including, without limitation, earthquake insurance policy for the Vernon, California location, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel;
(cb) on or before December 31, 1999During each year of the term of this Agreement, Foothill shall have received each the results of the following documentsfull physical inventory performed at Borrowers on or about the immediately preceding June 30, duly executedas soon as the same becomes available, and but in no event later than September 30 of each such document year, which shall be in full force and effect:satisfactory to Foothill;
(ic) The IPS Copyright Security Agreement; and
(ii) The IPS Trademark Security Agreementwithin 60 days of the Closing Date, Foothill shall have received a follow-up audit of the Inventory of Xxxxxxx, Xxxx, Vanguard and CSL, which shall be satisfactory to Foothill;
(d) upon the request within 60 days of Foothill (if ever) after the Closing Date, within 30 days after the date of such request:
(i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions the results of Borrower's counselan audit of all Borrowers which shall be satisfactory to Foothill;
(e) as soon as available, but no later than November 30, 2000, Foothill shall have received the Management Letter issued by Borrowers' accountants, Xxxxxx Xxxxxxxx, LLP, in conjunction with the audited financial statements prepared by such accountants for Parent and its subsidiaries for their fiscal year ending June 30, 2000, which letter shall be in form and substance satisfactory to Foothill; and
(f) on or before fourteen (14) days after Closing Date, Foothill in its sole discretionshall have received evidence reasonably satisfactory to Foothill that Windsor and Vanguard shall have consummated a merger, in respect with one of such Borrowers as the Mortgage on such after acquired Real Propertysurviving corporation;
(iiig) on or before fourteen (14) days after Closing Date, Foothill shall have received a preliminary Lockbox Agreement executed by Concepts and a Lockbox Bank that receives Concepts' Collections;
(h) on or before sixty (60) days after Closing Date, Foothill shall have received (i) a survey for the Hernando Property, prepared and certified to Foothill by a registered land surveyor reasonably satisfactory to Foothill, and (ii) an ALTA form mortgagee title report insurance policy with respect to the Mortgage by Stylecraft in respect favor of such after acquired Real Property Foothill covering the Hernando Property, in form and substance reasonably satisfactory to Foothill; and
(ivi) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to such on or before ten (10) days after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;
(e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that UCC-3 termination statements with respect to the following UCC-1 financing statements filed of record: (A) all existing copyrights UCC-1 financing statements filed against Concepts by Xxxxxxx Xxxxx Business Financial Services, Inc., (B) all UCC-1 financing statements filed against Stylecraft by Mississippi Business Finance Corporation, (C) Maryland Secretary of Borrower State filing no. 40178487 against MHI by NationsBank, N.A. or by Bank of America, N.A., as successor in interest to Suburban Bank, (other than Exempt CopyrightsD) required to be registered under Section 6.17 have been registered with the United States Copyright Office California Secretary of State filing no. 9515060109 against Vanguard by Orix Credit Alliance, Inc. and (or are the subject E) Delaware Secretary of a diligently prosecuted application therefor), and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered State filing no. 198806727 against Petals by the Copyright Security AgreementPeople's Westchester Savings Bank;
(fj) within 60 on or before five (5) days of either after Closing Date, Foothill shall have received (iA) the date that Borrower makes Stock certificate issued by MHI to Parent, (B) the Permitted Repayment Investment Stock certificate issued by Xxxxxxxxx.xxx in respect favor of the indebtedness of IG Australia owing to the IG Australia Existing Lender or Parent, and (iiC) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding Stock certificate no. 18 for 50,000 shares of stock Preferred Stock issued by Decor in favor of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance Parent or evidence reasonably satisfactory to Foothill that such certificate is not issued and such holderheld by Parent or any other Person;
(k) on or before thirty (30) days after Closing Date, Foothill shall have received Credit Card Acknowledgments from all of the following Credit Card Issuers and Credit Card Processors (as applicable) with respect to Credit Card Agreements to which the following Borrowers are party: (A) Petals: Discover Financial, Diners Club and Petals' private label credit card; (B) Artisan: Superior Bank (MasterCard); (C) XX Xxxxxxxx Services (MasterCard); (D) Windsor: Sanwa Bank and American Express; and (E) Stylecraft: Bank of America (Visa and MasterCard); and
(gl) [intentionally omitted]
(h) to the extent not available on or before the thirty (30) days after Closing Date under Section 3.1Date, Foothill shall have receivedreceived evidence satisfactory to Foothill that arrangements have ben completed for automatic wire transfers from all depository accounts maintained by each of Petals-CT, within 30 days of the Closing DatePetals-FL, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that with respect Petals-NY and Petal-PA to any "Pledged Foreign Issuer" (as defined in the Pledge Agreement) as of the Closing Date, the Obligors need not (i) deliver or cause to be delivered the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause to be complied with all applicable foreign law registration requirements for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Defaulta Lockbox Bank.
Appears in 1 contract
Condition Subsequent. As a condition conditions subsequent to initial closing hereunder, Borrower shall perform or cause to be performed the following (the failure by Borrower to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section SECTION 6.10, the form and substance of which shall be reasonably satisfactory to Foothill and its counsel;
(cb) on or before December 31, 1999, Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) The IPS Copyright Security Agreement; and
(ii) The IPS Trademark Security Agreement;
(d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date of such request:
(i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill shall have received a preliminary title report in respect of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and
(iv) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;
(e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights Intellectual Property of Borrower any of Borrower's Subsidiaries shall have been assigned to Borrower;
(c) within 30 days of the Closing Date, Foothill shall have received satisfactory evidence that all of Borrower's copyrightable material (other than Exempt Copyrights) required ), including copyrightable material assigned to be registered under Section 6.17 Borrower pursuant to SECTION 3.3(b), shall have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor)Office, and that all such copyrights (other than Exempt Copyrights) copyrightable material and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(fd) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto endorsed in blank; provided, however, that to the extent, if any, that such shares are required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and
(g) [intentionally omitted]
(h) to the extent not available on or before the Closing Date under Section 3.1, Foothill shall have received, within 30 days of the Closing Date, the original certificates representing or evidencing Foothill shall have received satisfactory evidence that all of the Pledged Shares Borrower's patentable inventions (as defined in the Pledge Agreementother than Exempt Patents), together including patentable inventions assigned to Borrower pursuant to SECTION 3.3(b), shall have been registered with stock powers or equivalent assignments with respect thereto duly endorsed in blank; providedthe United States Patent and Trademark Office, however, and that with respect to all such patentable inventions and any "Pledged Foreign Issuer" proceeds thereof are specifically encumbered by the Patent Security Agreement;
(as defined in the Pledge Agreemente) as within 30 days of the Closing Date, each Foreign Currency Bank shall establish and maintain tri-party blocked-on-demand account agreements with Foothill and Borrower or its Subsidiaries in accordance with SECTION 2.7(d);
(f) within 90 days of the Obligors need not (i) Closing Date, deliver or cause to be delivered such agreements, instruments, or other documents, including an opinion of counsel in form and substance satisfactory to Foothill, as Foothill shall request in order to perfect its security interest in Borrower's Inventory and other property located in The Netherlands; and
(g) upon Foothill's request, within 90 days of the original certificates (to the extent any exist) representing or evidencing the Pledged Shares issued by such Pledged Foreign IssuerClosing Date, nor (ii) comply deliver or cause to be complied with all applicable foreign law registration requirements for perfectingdelivered such agreements, under such foreign lawinstruments, the Lien or other documents, including an opinion of counsel in form and substance satisfactory to Foothill, as Foothill on such Pledged Shares, shall request in each case, until the date 60 days following the Closing Date before the failure order to do so would constitute an Event of Default.perfect its security interest in Borrower's Inventory and other property located in Thailand; and
Appears in 1 contract
Samples: Loan and Security Agreement (Network Computing Devices Inc)
Condition Subsequent. As a condition subsequent to initial closing hereunder, Borrower shall perform or cause to be performed the following (the failure by Borrower to so perform or cause to be performed constituting an Event of Default):
(a) (i) within 10 Business Days following the Closing Date, Borrower shall have ordered certificates of status with respect to Borrower from the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change and paid all fees necessary to obtain such certificates of status, and (ii) within 5 Business Days of receipt by Borrower or its counsel of any such certificate, deliver such certificate to Foothill, which certificate shall indicate that Borrower is in good standing in the applicable jurisdiction;
(b) within 30 days of the Closing Date, deliver to Foothill Agent (i) Subsidiary Guaranties and Subsidiary Security Agreements duly executed and delivered by GLI Corporate Risk Solutions, Inc., Crucero U.S.A., L.L.C., Greyhound Shore Services, L.L.C., and Greyhound XPress Delivery, L.L.C., (ii) the certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be reasonably satisfactory to Foothill Agent and its counsel;
(c) on or before December 31, 1999, Foothill shall have received each of the following documents, duly executed, and each such document shall be in full force and effect:
(i) The IPS Copyright Security Agreement; and
(ii) The IPS Trademark Security Agreement;
(d) upon the request of Foothill (if ever) after the Closing Date, within 30 days after the date of such request:
(i) a Mortgage on any Real Property acquired by Borrower after the Closing Date shall have been duly executed and delivered by Borrower, and the same shall be in full force and effect, and such Mortgage shall have been recorded in the office of the county recorder for the county in which such Real Property is located;
(ii) Foothill shall have received supplemental opinions of Borrower's counsel, in form and substance satisfactory to Foothill in its sole discretion, in respect of the Mortgage on such after acquired Real Property;
(iii) Foothill with respect to Additional Vehicles set forth on Schedule 5.3(b), all releases of liens and applications as Agent shall have received a preliminary require to enable the prompt processing of each such title report by the appropriate governmental agency in respect order to properly reflect Agent's Lien (for the benefit of such after acquired Real Property in form and substance reasonably satisfactory to Foothill; and
the Lender Group) thereon, (iv) Foothill shall have received a phase-I environmental report and a real estate survey shall have been completed with respect to such after acquired Real Property and copies thereof delivered to Foothill; the environmental consultants and surveyors retained for such reports or surveys, the scope of the reports or surveys, and the results thereof shall be acceptable to Foothill in its sole discretion;
(e) within 90 days following the Closing Date, Foothill shall have received satisfactory evidence that all existing copyrights of Borrower (other than Exempt Copyrights) required to be registered under Section 6.17 have been registered with the United States Copyright Office (or are the subject of a diligently prosecuted application therefor), and that all such copyrights (other than Exempt Copyrights) and any proceeds thereof are specifically encumbered by the Copyright Security Agreement;
(f) within 60 days of either (i) the date that Borrower makes the Permitted Repayment Investment in respect of the indebtedness of IG Australia owing to the IG Australia Existing Lender or (ii) one or more Letters of Credit are issued to IG Australia Existing Lender in support of the indebtedness of IG Australia owing to IG Australia Existing Lender and IG Australia Existing Lender releases its Lien on the capital stock of IG Australia (in either case, the "IG Australia Payoff Date"), execute and deliver an appropriate supplement to the Pledge Agreement and deliver to Foothill possession of the original stock certificates, respecting 65% of the issued and outstanding shares of stock of IG Australia, together with stock powers with respect thereto (endorsed in blank; provided), however, that to the extent, if any, that such shares for all Collateral consisting of certified securities (other than those held in an Excluded Account or which are otherwise not required to be pledged to the holder of any project financing indebtedness of IG Australia incurred after the IG Australia Payoff Date as security for such indebtedness, then, upon Borrower's written request therefor and with Foothill's prior written consent thereto (not to be unreasonably withheld), Foothill agrees to release its Lien on such shares; provided further, that if such holder will permit such subordination, then, notwithstanding the foregoing proviso, Foothill's Lien on such shares will not be released and will become a subordinate Lien delivered pursuant to documentation in form and substance reasonably satisfactory to Foothill and such holder; and
Section 4.2) owned by Borrower, (gv) [intentionally omitted]
(h) original promissory notes, together with duly executed endorsement allonges, for all notes receivable owned by Borrower, to the extent not available on required to be delivered pursuant to Section 4.2, (vi) a certificate of status with respect to Borrower and each Restricted Subsidiary of Borrower executing a Subsidiary Security Agreement, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction, and (vii) certificates of status with respect to Borrower and each Restricted Subsidiary of Borrower executing a Subsidiary Security Agreement, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or before the Closing Date under Section 3.1licensed would constitute a Material Adverse Change, Foothill which certificates shall have receivedindicate that such Person is in good standing in such jurisdictions;
(b) Borrower shall use commercially reasonable efforts to cause to be delivered to Agent, within 30 60 days of the Closing Date, the original certificates representing or evidencing all of the Pledged Shares (as defined in the Pledge Agreement), together with stock powers or equivalent assignments with respect thereto duly endorsed in blank; provided, however, that Control Agreements with respect to (i) any "Pledged Foreign Issuer" Securities Account (as defined in other than an Excluded Account), (ii) the Pledge AgreementSpecified Local Collection Accounts and (iii) as any other deposit account (other than an Excluded Account);
(c) within 45 days of the Closing Date, the Obligors need not Date Borrower shall have delivered to Agent (i) deliver or a duly executed amendment to each Mortgage in respect of each parcel of Real Property Collateral, and (ii) in respect of each parcel of Core Real Property Collateral, used its commercially reasonable efforts to cause to be delivered the original certificates (to the extent any exist) representing Agent such environmental reports and title insurance policies or evidencing the Pledged Shares issued by such Pledged Foreign Issuer, nor (ii) comply or cause endorsements as Agent determines to be complied with all applicable foreign law registration requirements necessary for perfecting, under such foreign law, the Lien of Foothill on such Pledged Shares, parcel to be considered Core Real Property Collateral as defined in each case, until the date 60 days following the Closing Date before the failure to do so would constitute an Event of Defaultthis Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Texas New Mexico & Oklahoma Coaches Inc)
