Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent: (a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable. (b) Lender shall have received all searches and good standing certificates required by Section 3.5. (c) Borrower shall then be in compliance with all the terms, covenants and conditions of the Loan Documents. (d) There shall exist no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default. (e) The representations and warranties contained in Article IV shall be true and correct in all material respects. (f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require. (g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents. (h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C. (i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base. (j) Lender shall have received the remainder of the Commitment Fee. (k) The Lockbox and the Concentration Account shall have been established. (l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 3 contracts
Samples: Loan and Security Agreement (Phymatrix Corp), Loan and Security Agreement (Phymatrix Corp), Loan and Security Agreement (Phymatrix Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.Exhibit D.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 3 contracts
Samples: Loan and Security Agreement (Numed Home Health Care Inc), Loan and Security Agreement (National Diagnostics Inc), Loan and Security Agreement (Numed Home Health Care Inc)
Conditions Precedent to Agreement. The obligation effectiveness of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is any obligations of the Purchaser hereunder other than those contained in Section 8.08, which the Purchaser shall be subject to whether or not the conditions in this Section 3.01 are met, are subject to each of the following conditions precedent:precedent being satisfied in all material respects (except with respect to the condition precedent set forth in Section 3.01(g) which shall be satisfied in all respects) or waived (in each case, as determined by the Purchaser in its reasonable discretion):
(a) Lender shall have received two (2) originals the conditions precedent to the execution, delivery and effectiveness of this Agreement and all each of the other Loan Transaction Documents required to be executed and delivered at or before Closing (other than a condition precedent in any such other Transaction Document relating to the Note, as to which Lender effectiveness of this Agreement) shall receive only one original), executed by Borrower and any other required Persons, as applicable.have been fulfilled;
(b) Lender Purchaser shall have received all searches satisfactory legal opinions and/or bring down reliance letters in respect of certain corporate and good standing certificates required by Section 3.5.enforceability matters;
(c) Borrower Purchaser shall then be in compliance with all have received closing certificates (officer’s certificates certifying to and attaching each party’s constituent documents, resolutions indicating the termsauthority to execute the Transaction Documents, covenants good standing certificate (or equivalent) and conditions incumbency of relevant officers scheduled to consummate the Loan transactions contemplated by the Transaction Documents.) satisfactory to the Purchaser from the Seller and Imperial;
(d) There notwithstanding the provisions of Section 4.01(d), Seller shall exist no Event of Default have made an arrangement, satisfactory to the Purchaser, in connection with filing and no event whichrecording, with at the giving of notice Seller’s own expense, all UCC-1 financing statements necessary or advisable to perfect the lapse of time, or both, could constitute such an Event of Default.Purchaser’s ownership interest in the Purchased Assets in each applicable jurisdiction;
(e) The Imperial shall have duly executed and delivered to the Purchaser a letter reaffirming its guarantee of Seller’s obligations under this Agreement and the other Transaction Documents in form satisfactory to the Purchaser;
(f) Purchaser shall have received copies of reports of a UCC lien search conducted in the central filing office and any relevant local offices of the Seller with respect to the Receivables reflecting the absence of Liens on the Receivables and Related Assets, except for Permitted Liens or Liens created hereunder in favor of the Purchaser or except for Liens as to which Purchaser has received UCC termination statements; and
(g) the representations and warranties of Seller contained in Article IV Section 4.01 are true and correct in all material respects (except (A) to the extent such representations and warranties expressly related to an earlier date, in which case as of such earlier date and (B) for such representations and warranties which are qualified by their terms by references to “materiality” or “Material Adverse Effect,” which such representations and warranties as so qualified shall be true and correct in all material respects).
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Imperial Holdings, Inc.)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving advances under any Credit Loans Facility on the Closing Date and the Restatement Date is subject to completion of the following conditions precedent, each to the satisfaction of Lender in its reasonable discretion:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be fully executed and delivered at copies or before Closing (other than the Noteamendments or updates, as to which Lender shall receive only one original)applicable, of the following documents, executed by Borrower and any other required Persons:
(i) this Agreement;
(ii) the Information Certificate;
(iii) the Notes;
(iv) the Pledge Agreement and any other documents necessary or desirable for Lender to create and perfect its first priority security interest in the Collateral;
(v) the Warrant;
(vi) the list of all assets located in Iceland, prepared in reasonable detail, together with all documents and deposit account balances necessary to create in favor of Lender “fixed and floating charges” against all assets located in Iceland, including, but not limited to cash balances in the Icelandic Accounts sufficient to allow Lender to perfect its security interest in such Icelandic Accounts in an amount of not less than $400,000;
(vii) the Intercompany Notes and any related intercompany subordination agreement;
(viii) UCC financing statements in the correct form for filing in each respective filing office;
(ix) IRS form 8821 for each Domestic Borrower; and
(x) such other agreements and documents as applicable.Lender may reasonably require
(b) Lender shall have received all searches and good standing certificates required by Section 3.55.7.
(c) A certificate of an Authorized Officer stating that (i) no Default shall have occurred and be continuing, (ii) that Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of this Agreement and the other Loan Documents.
, (diii) There shall exist no Event of Default and no event which, with that the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct and (iv) the names and providing specimen signatures of the officers of Borrower authorized to execute documents on its behalf in all material respectsconnection with the Loan.
(fd) Lender shall have received copies of all board of directors resolutions of each entity comprising Borrower, and other corporate action taken by Borrower to authorize authorizing the execution, delivery and performance of the Loan Documents and the borrowing of the Loan Loans and the granting of security interests under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and the other Loan Documents and such other papers approvals, authorizations and consents as Lender may reasonably require.
(ge) Lender shall have received (i) a copy copy, certified by the applicable state of organization of each entity comprising Borrower of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each entity comprising Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an Authorized Officer, member or partner of each entity comprising Borrower, of Borrower's bylaws and all other documents documents, including bylaws, limited liability company agreements or operating agreements, necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each entity comprising Borrower issued by the state of organization of each such entity and by each state in which each such entity is doing business except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.
(hf) Lender shall have received a written opinion opinions of counsel for Borrower, including, without limitation, counsel authorized to practice under the laws of Iceland, dated the date of this Agreement, substantially in the form of EXHIBIT C.and substance satisfactory to Lender.
(ig) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement.
(h) Lender shall have received payment of all fees and expenses, including without limitation an initial Borrowing Base Certificate calculating all commitment fees, provided for herein.
(i) Lender shall have received a Landlord’s Waiver and Consent, in form and substance substantially similar to the Borrowing BaseLandlord’s Waiver and Consent, attached hereto as Exhibit E, from Borrower’s landlord with respect to the premises locate at One Science Court, Madison, Wisconsin.
(j) Evidence in form and substance satisfactory to Lender shall have received the remainder that (i) all of the Commitment Feeobligations of Borrower to any prior lender (other than lenders of Indebtedness permitted pursuant to Section 6.1), including without limitation, the Wisconsin Department of Commerce, have been performed and paid in full, or will be performed and paid in full from the proceeds of the initial advances under the Credit Facilities on the Closing Date, and (ii) all Liens of any such prior lender on any property of Borrower in respect thereof have been or will be terminated immediately upon such payment.
(k) The Lockbox Lender shall have received evidence satisfactory to it that the insurance policies required under Section 5.6 are in full force and effect, together with written evidence showing loss payable or additional insured clauses and the Concentration Account shall have been establishedassociated endorsements in favor of Lender as required under such Section 5.6.
(l) Lender shall have received a certificate of Borrower's ’s chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section 3.1 have been fulfilled, that there shall not have been any event, act, condition or occurrence which would be reasonably likely to result in a Material Adverse Effect since the December 31, 2004 financial statement delivered by Borrower to Lender, and that both before and after giving effect to the transactions contemplated by the Loan Documents, each entity comprising Borrower is Solvent.
(m) Lender shall have received fully executed Deposit Account Control Agreements from each Depository Bank with respect to each Deposit Account held by such Depository Bank and fully executed Securities Account Control Agreements from each Securities Intermediary with respect to each Securities Account held by such Securities Intermediary.
(n) Lender shall have received and is satisfied with each Material Borrower Contract.
(o) Such other documents and materials as Lender shall reasonably deem necessary or appropriate.
(p) Borrower shall have raised at least $12,500,000 through the issuance of Stock of NimbleGen pursuant to the transactions contemplated in that certain Term Sheet for Series F Preferred Stock Financing of NimbleGen Systems, Inc., dated December 4, 2006 (the “December 2006 Offering”).
Appears in 2 contracts
Samples: Loan and Security Agreement (Nimblegen Systems Inc), Loan and Security Agreement (Nimblegen Systems Inc)
Conditions Precedent to Agreement. The obligation satisfaction (or waiver in writing by Administrative Agent) of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject each of the following shall constitute conditions precedent to the following conditions precedent:effectiveness of the Agreement (such date being the “Agreement Effective Date”):
(a) Lender Administrative Agent shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before Closing (other than the NoteAgreement, as to which Lender shall receive only one original), duly executed by Borrower the parties hereto, and any other required Persons, as applicablethe same shall be in full force and effect.
(b) Lender Administrative Agent shall have received all searches the Amended and good standing certificates required Restated Fee Letter, dated as of the date hereof, duly executed by Section 3.5the Borrowers and Administrative Agent, and the same shall be in full force and effect.
(c) Borrower Administrative Agent shall then have received the Amendment Agreement to Canadian Security Agreement, dated as of the date hereof, duly executed by the parties thereto, and the same shall be in compliance with all the terms, covenants full force and conditions of the Loan Documentseffect.
(d) There Administrative Agent shall exist no Event have received immediately available funds the fees required to be paid on the First Amendment Closing Date per the Amended and Restated Fee Letter, dated as of Default the date hereof, duly executed by the Borrower and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of DefaultAdministrative Agent.
(e) Administrative Agent shall have received satisfactory evidence, in form and substance satisfactory to the Administrative Agent, evidencing that, after giving effect to the payment of fees and expenses associated with the closing of this Agreement, Excess Availability shall exceed $40,000,000.
(f) The Administrative Agent shall have received certificates as of a recent date of the good standing, existence or status, as applicable, of each Borrower and each Subsidiary Guarantor under the laws of its jurisdiction of organization.
(g) After giving effect to this Agreement, the representations and warranties contained in Article IV this Agreement, the Credit Agreement, the Security Agreement and the other Loan Documents shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, on and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.hereof;
(h) Lender No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have received a written opinion of counsel for been issued and remain in force by any Governmental Authority against any Borrower, dated any Subsidiary Guarantor, any Obligor, Administrative Agent, any other member of the date of this AgreementLender Group, substantially in the form of EXHIBIT C.or any Bank Product Provider.
(i) Lender No Default or Event of Default shall have received such financial statementsoccurred and be continuing as of the Agreement Effective Date, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating nor shall either result from the Borrowing Baseconsummation of the transactions contemplated herein.
(j) Lender shall have received All other documents and legal matters in connection with the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account transactions contemplated by this Agreement shall have been establisheddelivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Administrative Agent.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 2 contracts
Conditions Precedent to Agreement. The obligation Each of Lender the following is a condition precedent, except as may be waived in accordance with Section 11.3, to enter into and perform the effectiveness of this Agreement and to make Revolving Credit Loans is subject to this Agreement amending and restating the following conditions precedentOriginal Loan Agreement in its entirety:
(a) Lender shall have received two (2) originals of this Agreement all requisite corporate or company action and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf proceedings in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received all information and copies of all documents, including, without limitation, records of requisite corporate or company action and proceedings which Agent may have requested in its Permitted Discretion in connection therewith, such documents where requested by Agent in its Permitted Discretion or its counsel to be certified by appropriate corporate or company officers or Governmental Authorities;
(b) no material adverse change shall have occurred in the assets, business or prospects of Borrowers since the date of Agent’s latest field examination and no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(c) Agent shall have received, in form and substance reasonably satisfactory to Agent, the Term Notes duly executed and delivered by Borrowers;
(d) Agent shall have received an Information Certificate duly executed and delivered by each Borrower;
(e) Agent shall have received, in form and substance reasonably satisfactory to Agent, and reviewed to its reasonable satisfaction, UCC, tax lien, litigation, bankruptcy and intellectual property searches from all offices that Agent deems appropriate in its sole discretion;
(f) Agent shall have received, in form and substance satisfactory to Agent, an opinion letter of counsel to Borrowers and Obligors with respect to the Financing Agreements and such other matters as Agent may reasonably request;
(g) Agent shall have received such endorsements to its loan policy of title insurance for its deed of trust against the Real Estate, as amended, as it shall reasonably request;
(h) Lender Agent shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.Fee Letter duly executed and delivered by Borrowers;
(i) Lender Borrowers shall have received such financial statements, reports, certifications, and other operational information required Excess Availability of at least $10,000,000 after giving effect to be delivered under the effectiveness of this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.; and
(j) Lender shall have received All other documents and legal matters in connection with the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account transactions contemplated by this Agreement shall have been establisheddelivered, executed or recorded and shall be in form and substance reasonably satisfactory to Agent.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation Each of Lender the following is a condition precedent, except as may be waived in accordance with Section 11.3, to enter into and perform the effectiveness of this Agreement and to make Revolving Credit Loans is subject to this Agreement amending and restating the following conditions precedentOriginal Loan Agreement in its entirety:
(a) Lender all requisite corporate or company action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Agent, and Agent shall have received two (2) originals all information and copies of this Agreement all documents, including, without limitation, records of requisite corporate or company action and all other Loan Documents required proceedings which Agent may have requested in its Permitted Discretion in connection therewith, such documents where requested by Agent in its Permitted Discretion or its counsel to be executed and delivered at certified by appropriate corporate or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.company officers or Governmental Authorities;
(b) Lender no material adverse change shall have received all searches occurred in the assets, business or prospects of Borrowers since the date of Agent’s latest field examination and good standing certificates required by Section 3.5.no change or event shall have occurred which would impair the ability of any Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent to enforce the Obligations or realize upon the Collateral;
(c) Borrower Agent shall then be have received, in compliance with all form and substance reasonably satisfactory to Agent, the terms, covenants Term Notes duly executed and conditions of the Loan Documents.delivered by Borrowers;
(d) There Agent shall exist no Event of Default have received an Information Certificate duly executed and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Defaultdelivered by each Borrower.
(e) The representations Agent shall have received, in form and warranties contained substance reasonably satisfactory to Agent, and reviewed to its reasonable satisfaction, UCC, tax lien, litigation, bankruptcy and intellectual property searches from all offices that Agent deems appropriate in Article IV shall be true and correct in all material respectsits sole discretion; *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(f) Lender Agent shall have received copies a letter duly executed by Borrowers authorizing Agent to file appropriate financing statements in such office or offices as may be necessary or, in the reasonable opinion of all board of directors resolutions of BorrowerAgent, and other corporate action taken by Borrower desirable to authorize perfect the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized security interests to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.be created hereunder;
(g) Lender Agent shall have received a copy evidence that appropriate financing statements have been duly filed in such office or offices as may be necessary or, in the reasonable opinion of Agent, desirable to perfect the charter documents of each Borrower, with any amendments Agent’s Liens in and to any of the foregoing, certified by the Secretary of State of the state of each such entity's formationCollateral, and copies, certified as true, correct and complete by a corporate officer Agent shall have received searches reflecting the filing of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.such financing statements;
(h) Lender Agent shall have received a written received, in form and substance satisfactory to Agent, an opinion letter of counsel for Borrower, dated to Borrowers and Obligors with respect to the date of this Agreement, substantially in the form of EXHIBIT C.Financing Agreements and such other matters as Agent may reasonably request;
(i) Lender Agent shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this the Bank Products Provider Letter Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender Agent shall have received such endorsements to its loan policy of title insurance for its deed of trust against the Real Estate, as amended, as it shall reasonably request;
(k) Agent shall have received the remainder of the Commitment Fee.
(k) The Lockbox Fee Letter duly executed and the Concentration Account shall have been established.delivered by Borrowers;
(l) Lender Agent shall have received a certificate of Borrower's chief financial officerreceived, dated in form and substance satisfactory to Agent, the Closing Date, certifying that all Apple Intercreditor Agreement duly executed by Apple Computer and certain of the conditions specified Borrowers; and
(m) All other documents and legal matters in connection with the transactions contemplated by this Section Agreement shall have been fulfilleddelivered, executed or recorded and shall be in form and substance reasonably satisfactory to Agent.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Intensiva Healthcare Corp)
Conditions Precedent to Agreement. The effectiveness of this Agreement and the obligation of Lender the Banks to enter into make Accommodations hereunder are subject to the prior or contemporaneous fulfilment of each of the following conditions:
(a) The Agent and the Banks shall have completed their due diligence investigation and examination of the Borrower's operation and affairs and shall have determined, in their sole discretion, acting reasonably, that the results of such investigation and examination are satisfactory, including, without limitation, in respect of matters relating to (i) current business plans, (ii) financial projections, and (iii) the operations of the Borrower Group on a consolidated basis;
(b) The Agent and the Banks shall have received each of the following:
(i) the loan certificate of the Borrower dated as of the Restatement Date, in substantially the form attached hereto as Exhibit D, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate and Articles of Incorporation and by-laws of the Borrower as in effect on the Restatement Date, or confirmation that there have been no amendments to such articles and by-laws since the Agreement Date, (B) certificates of status, compliance or good standing for the Borrower issued by the appropriate government officials of the jurisdiction of incorporation of the Borrower and for each jurisdiction in which the Borrower carries on business, (C) a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to execute, deliver and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents to which it is a party and the transactions contemplated hereby and thereby, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Capital Stock of the Borrower;
(ii) a loan certificate of each Subsidiary of the Borrower dated as of the Restatement Date, in substantially the form attached hereto as Exhibit E, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate and Articles of Incorporation and by-laws of such Person as in effect on the Restatement Date, or confirmation that there have been no amendments to such articles and by-laws since the Agreement Date, (B) certificates of status, compliance or good standing for such Person issued by the appropriate government officials of the jurisdiction of incorporation or formation, as applicable, of such Person and for each jurisdiction in which such Person is required to be executed qualify to do business, (C) a true, complete and delivered at or before Closing (other than correct copy of the Notecorporate resolutions of such Person authorizing such Person to execute, as deliver and perform the Loan Documents to which Lender shall receive only one original)it is party and the transactions contemplated thereby, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Capital Stock of such Person;
(iii) duly executed by acknowledgements and confirmations from the Borrower and any other of its Affiliates that had previously granted security in connection with this Agreement prior to its amendment and restatement, that such security (A) remains in full force and effect, unamended, and (B) secures the obligations of the Borrower under this Agreement (it being acknowledged that no such document is required Personsfrom Paging Network, as applicable.Inc. because it has been released from any obligations it had in connection with security it previously delivered);
(biv) Lender shall have received evidence of the registration and continued perfection of the Security Documents in all searches offices where such registration, filing or recording is necessary or desirable to protect any rights or remedies of the Agent and good standing the Banks thereunder;
(v) copies of insurance binders or certificates required covering the assets of the Borrower and its Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof, together with copies of the underlying insurance policies;
(vi) a legal opinion of Blakx Xxxxxxx & Xrayxxx, Xxnadian counsel to the Borrower and its Subsidiaries, addressed to each Bank and the Agent, and dated as of the Restatement Date;
(vii) audited year-end financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal year ending December 31, 1998, and unaudited financial statements for the Borrower Group on a combined basis for the fiscal year ending December 31, 1998 and the fiscal quarter ending March 31, 1999, certified by Section 3.5(A) in the case of the audited statements, an independent auditor acceptable to the Agent, and (B) in the case of the unaudited statements, the Chief Financial Officer or the Chief Executive Officer of the Borrower; 40
(viii) lien search results with respect to the Borrower and its Subsidiaries from appropriate jurisdictions; and
(ix) all such other documents as the Agent or any Bank may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(c) Borrower shall then be in compliance with all The Agent and the terms, covenants and conditions of the Loan Documents.
(d) There shall exist no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender Banks shall have received copies evidence satisfactory to them that all Necessary Authorizations, including any consent or authorization of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws Industry Canada and all other documents necessary for performance consents to the closing of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall , have received a written opinion been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of counsel for the Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certificationsthreatened reversal or cancellation, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox Agent and the Concentration Account shall have been established.
(l) Lender Banks shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilledan Authorized Signatory so stating.
Appears in 1 contract
Samples: Loan Agreement (Paging Network Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, an updated the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing by Lender in connection with the amendment and restatement of the Original Loan Agreement (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5Lender, if any.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all resolutions of Borrower's board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the certificate of incorporation of Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into Loto and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower Borrowers and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower Borrowers shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and the General Partner or other corporate action taken by Borrower Borrowers to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower Borrowers authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by each Borrower's chief financial officerofficer or Borrower's general partner (as the case may be), and such other papers as Lender may reasonably require.
(g) Lender shall have received copies, certified as true, correct and complete by a copy corporate officer or the corporate officer of the charter documents general partner (as the case may be)of each Borrower, of the articles of incorporation or formation and bylaws of the general partner, (as the case may be) of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.Exhibit D.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder first installment of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l1) Lender shall have received a an estoppel certificate substantially in the form of Exhibit E attached hereto from Borrower's chief financial officerlandlord or sublandlord, dated as the Closing Datecase may be, certifying that all with respect to each of the conditions specified in this Section have been fulfilledfacilities identified on Schedule 4.15 which is a leased facility.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of the Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the certificate of incorporation of Borrower's bylaws , with any amendments thereto and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.D.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox Depository Accounts and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (BMJ Medical Management Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date hereof by an officer of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the articles of incorporation and bylaws of Borrower's bylaws , with any amendments thereto, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Raintree Healthcare Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals 2)originals of this Agreement Agreement,the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrowerresolutions, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including including, without limitation an initial Borrowing Base Certificate limitation, a borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
(m) On or before February 15, 2001, Lender shall have received Landlord Estoppel Certificates from the landlords of both facilities operated by Borrower in the form of Exhibit D attached hereto.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, Borrower and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.D.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received evidence that the remainder Pappajohn Group has made a $1 million capital contribution to Allion in exchange for a 50% interest in the equity of the Commitment Fee.Allion;
(k) Borrower shall be in material compliance with the terms and conditions of the Plan of Reorganization;
(l) The Lockbox and the Concentration Account shall have been established.;
(lm) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Allion Healthcare Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, Borrower and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, the Warrant and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, Documents as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's ’s chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received copies, certified as true, correct and complete by a copy corporate/limited liability company officer of each Borrower, of the charter documents certificate of incorporation/organization of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, Borrower dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l1) Lender shall have received a an estoppel certificate substantially in the form of Exhibit D from Borrower's chief financial officer’s landlord or sublandlord, dated as the Closing Datecase may be, certifying that all with respect to each of the conditions specified in this Section have been fulfilledfacilities identified on Schedule 4.15.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Sunlink Health Systems Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform extend to Borrower the Loan as described in this Agreement and to make Revolving Credit Loans is are subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable; and
(iii) Certified copies of all necessary resolutions of the Board of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Note; and
(v) A certificate, as of the date of signing of the Agreement, by the President, a Vice President or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention;
(B) Enforceability of this Agreement, the Note, Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to Trustee signed by Borrower, Lender and the Trustee to the effect set forth in Section 2.7(b); and
(ix) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Excess Cash Flow Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Excess Cash Flow Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving advances under any Credit Loans Facility is subject to the satisfaction of each and every one of the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (I) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.55.34.
(c) Borrower and any Guarantor shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions resolutions, consents of Borrowermembers and managers and consents of partners of each Borrower and Guarantor, and other corporate action taken by Borrower and any Guarantor to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of Borrower and Guarantor authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's ’s or Guarantor’s, as applicable, chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower and Guarantor, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each BorrowerBorrower and Guarantor, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of Borrowereach Borrower and Guarantor, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower and Guarantor under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower and Guarantor issued by the state of organization of each Borrower and Guarantor and by each state in which each Borrower and Guarantor is doing and currently intends to do business for which qualification is required.
(h) Lender shall have received a written opinion of counsel for BorrowerBorrower and any Guarantor, dated the date of this Agreement, substantially in the form of EXHIBIT C.and substance satisfactory to Lender.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Feeall commitment fees provided for herein.
(k) The Lockbox and the Concentration Account Any lockboxes, lockbox accounts or blocked accounts provided for herein or in any Loan Document shall have been established.
(l1) If any of the Credit Facilities is a revolving credit facility, Lender shall have received a certificate of an estoppel certificate, in form and substance satisfactory to Lender, from Borrower's chief financial officer’s landlord or sublandlord. as the case may be, dated the Closing Date, certifying that all with respect to each of the conditions specified in this Section have been fulfilledLocations identified on Schedule 3.1
(1) of the Information Certificate.
Appears in 1 contract
Conditions Precedent to Agreement. The effectiveness of this Agreement and the obligation of Lender the Banks to enter into make Accommodations hereunder are subject to the prior or contemporaneous fulfilment of each of the following conditions:
(a) The Agent and the Banks shall have completed their due diligence investigation and examination of the Borrower's operation and affairs and shall have determined, in their sole discretion, acting reasonably, that the results of such investigation and examination are satisfactory, including, without limitation, in respect of matters relating to (i) current business plans, (ii) financial projections, and (iii) the operations of the Borrower Group on a consolidated basis;
(b) The Agent and the Banks shall have received each of the following:
(i) the loan certificate of the Borrower dated as of the Restatement Date, in substantially the form attached hereto as Exhibit D, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate and Articles of Incorporation and by-laws of the Borrower as in effect on the Restatement Date, or confirmation that there have been no amendments to such articles and by-laws since the Agreement Date, (B) certificates of status, compliance or good standing for the Borrower issued by the appropriate government officials of the jurisdiction of incorporation of the Borrower and for each jurisdiction in which the Borrower carries on business, (C) a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to execute, deliver and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents to which it is a party and the transactions contemplated hereby and thereby, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Capital Stock of the Borrower;
(ii) a loan certificate of each Subsidiary of the Borrower dated as of the Restatement Date, in substantially the form attached hereto as Exhibit E, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate and Articles of Incorporation and by-laws of such Person as in effect on the Restatement Date, or confirmation that there have been no amendments to such articles and by-laws since the Agreement Date, (B) certificates of status, compliance or good standing for such Person issued by the appropriate government officials of the jurisdiction of incorporation or formation, as applicable, of such Person and for each jurisdiction in which such Person is required to be executed qualify to do business, (C) a true, complete and delivered at or before Closing (other than correct copy of the Notecorporate resolutions of such Person authorizing such Person to execute, as deliver and perform the Loan Documents to which Lender shall receive only one original)it is party and the transactions contemplated thereby, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Capital Stock of such Person;
(iii) duly executed by acknowledgements and confirmations from the Borrower and any other of its Affiliates that had previously granted security in connection with this Agreement prior to its amendment and restatement, that such security (A) remains in full force and effect, unamended, and (B) secures the obligations of the Borrower under this Agreement (it being acknowledged that no such document is required Personsfrom Paging Network, as applicable.Inc. because it has been released from any obligations it had in connection with security it previously delivered);
(biv) Lender shall have received evidence of the registration and continued perfection of the Security Documents in all searches offices where such registration, filing or recording is necessary or desirable to protect any rights or remedies of the Agent and good standing the Banks thereunder;
(v) copies of insurance binders or certificates required covering the assets of the Borrower and its Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof, together with copies of the underlying insurance policies;
(vi) a legal opinion of Blakx Xxxxxxx & Xrayxxx, Xxnadian counsel to the Borrower and its Subsidiaries, addressed to each Bank and the Agent, and dated as of the Restatement Date;
(vii) audited year-end financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal year ending December 31, 1998, and unaudited financial statements for the Borrower Group on a combined basis for the fiscal year ending December 31, 1998 and the fiscal quarter ending March 31, 1999, certified by Section 3.5(A) in the case of the audited statements, an independent auditor acceptable to the Agent, and (B) in the case of the unaudited statements, the Chief Financial Officer or the Chief Executive Officer of the Borrower;
(viii) lien search results with respect to the Borrower and its Subsidiaries from appropriate jurisdictions; and
(ix) all such other documents as the Agent or any Bank may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(c) Borrower shall then be in compliance with all The Agent and the terms, covenants and conditions of the Loan Documents.
(d) There shall exist no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender Banks shall have received copies evidence satisfactory to them that all Necessary Authorizations, including any consent or authorization of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws Industry Canada and all 38 - 34 - other documents necessary for performance consents to the closing of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall , have received a written opinion been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of counsel for the Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certificationsthreatened reversal or cancellation, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox Agent and the Concentration Account shall have been established.
(l) Lender Banks shall have received a certificate of Borrower's chief financial officer, dated an Authorized Signatory so stating.
(d) The Borrower shall certify to the Closing Date, certifying Agent and the Banks that all each of the conditions specified representations and warranties in this Section Article 4 hereof are true and correct as of the Agreement Date and that no Default or Event of Default then exists or is continuing.
(e) There shall not exist as of the Restatement Date any action, suit, proceeding or investigation pending against, or, to the knowledge of the Borrower, threatened against or in any manner relating adversely to, the Borrower, any of its Subsidiaries, any of their respective properties, which, in the judgment of the Agent, could be expected to have been fulfilleda Materially Adverse Effect.
(f) No event shall have occurred and no condition shall exist which, in the judgment of the Agent, has had or could be expected to have a Materially Adverse Effect.
(g) The Agent and the Banks shall have received evidence satisfactory to them of the simultaneous closing of the PageNet Canada Agreement dated as of even date hereof.
(h) The Agent and the Banks shall have received all agreements entered into, in connection with the Business, by PageNet and Madison Venture Corporation and their respective Subsidiaries, which agreements shall be in form and substance satisfactory to the Agent and the Banks and shall each be collaterally assigned to the Agent for the benefit of the Banks.
(i) The Agent and the Banks and their counsel shall have received payment of all fees due and payable on the Restatement Date.
Appears in 1 contract
Samples: Loan Agreement (Paging Network Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedentprecedent the satisfaction of which shall be determined by Lender in its sole discretion:
(a) Lender shall have received two (2) originals of this Agreement Agreement, an updated Certificate of Validity, the Guaranty Agreements and all other Loan Documents required to be executed and delivered at or before Closing by Lender in connection with the amendment and restatement of the Prior Loan Agreement (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower the Loan Parties, the Guarantors and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5Lender, if any.
(c) Borrower Each Loan Party shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist no No Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of DefaultDefault shall have occurred and be continuing or would result from the Loan Parties entering into the Loan Documents.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all resolutions of each Loan Party’s board of directors resolutions of Borrower, and other corporate action taken by Borrower each Loan Party to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower each Loan Party authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial such Loan Party’s officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrowereach Loan Party, of Borrower's bylaws the certificate of incorporation of each Loan Party, with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower the Loan Parties under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion completed its business and legal due diligence review of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.Loan Parties.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including including, without limitation limitation, an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.[Reserved]
(k) The Lockboxes, Lockbox Accounts and the Concentration Account shall have been establishedestablished and the Lockbox Agreements entered into with the Lockbox Bank.
(l) Lender shall have received a an estoppel certificate of Borrower's chief financial officerin form and substance satisfactory to Lender in its commercially reasonable discretion from each Loan Party’s landlord or sublandlord, dated as the Closing Datecase may be, certifying that all with respect to each of the conditions specified facilities identified on Schedule 4.15.
(m) Lender shall have received an opinion from legal counsel to the Loan Parties, in this Section have been fulfilledform and substance, as required by Lender in its sole discretion.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform extend to Borrower the Loan as described in this Agreement and to make Revolving Credit Loans is subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Promissory Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of each of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable, for each of Borrower, Guarantor and AMC; and
(iii) Certified copies of all necessary resolutions of each of the Boards of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Promissory Note; and
(v) A certificate, as of the date of signing of this Agreement, by the President, a Vice President, the Chief Financial Officer or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention, substantially in the form attached hereto as EXHIBIT E;
(B) Enforceability of this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to the Trust Collateral Agent signed by Borrower to the effect set forth in Section 2.7(b);
(ix) The duly executed, original Omnibus Amendment No. 4; and
(x) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement, the Certificate of Validity, the Guaranty, the Environmental Indemnity, the Mortgages, the Pledge Agreement and all other Loan Documents and Term Loan Documents required to be executed and delivered at or before Closing (other than the Note and the Term Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board consents of directors resolutions of Borrowershareholders, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the shareholders and officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of formation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(k) Lender shall have received two (2) originals of that certain Secured Unconditional Guaranty of Payment and Performance of even date herewith made by Borrower in favor of Lender (the "BORROWER GUARANTY");
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.;
Appears in 1 contract
Conditions Precedent to Agreement. The obligation obligations of Lender to enter into and perform extend to Borrower any Loan as described in this Agreement and to make Revolving Credit Loans is are subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Promissory Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of each of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable for each of Borrower, Guarantor and AMC; and
(iii) Certified copies of all necessary resolutions of each of the Boards of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Promissory Note; and
(v) A certificate, as of the date of signing of the Agreement, by the President, a Vice President, the Chief Financial Officer or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention, substantially in the form attached hereto as EXHIBIT E;
(B) Enforceability of this Agreement, the Promissory Note, Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to the Trust Collateral Agent signed by Borrower to the effect set forth in Section 2.7(b); and
(ix) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation obligations of Lender to enter into and perform this Agreement and each Purchaser to make Revolving Credit Loans is a Bridge Loan are subject to the following conditions precedent:
(a) Lender The Purchasers shall have received two one (21) originals original of this Agreement Agreement, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original)Bridge Loan Closing, executed by Borrower and any other required Persons, as applicablethe Company.
(b) Lender Each Purchaser shall have received all searches and good standing certificates required by Section 3.54.3.
(c) Borrower The Company shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations Each Purchaser shall have executed a subordination agreement with PFG with respect to the PFG Obligations, the PFG Subsequent Obligations and warranties contained the Obligations in Article IV form and substance satisfactory to the Purchasers, and each Purchaser shall be true have received copies of a written consent of PFG to (i) the issuance of the Bridge Notes, (ii) the grant by the Company of a continuing second priority security interest in the Collateral as contemplated hereby and correct in (iii) the performance by the Company of all material respectsother transactions contemplated hereby.
(f) Lender Each Purchaser shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower the Company to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Bridge Loan under the Loan DocumentsDocuments and the issuance of the Warrants, as well as the names and signatures of the officers of Borrower the Company authorized to execute documents on its behalf in connection herewithwith the transactions contemplated hereby, all as also certified as of the date of this Agreement by Borrower's the Company’s chief financial officer, or equivalent, and such other papers as Lender Purchaser may reasonably require.
(g) Lender Each Purchaser shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (i) copies, certified as true, correct and complete by a corporate the applicable state of organization of the Company, of the Articles and ByLaws, each as amended to date, (ii) copies, certified as true, correct and complete by an authorized officer of Borrowerthe Company, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower the Company under this Agreement and the other Loan Documents, and (iii) certificates of valid existence for the Company, each Existing Subsidiary issued by the respective states of organization and by each state in which the Company is doing and currently intends to do business for which qualification is required.
(h) Lender The Company shall have received a written opinion delivered to each Purchaser reports and lists satisfactory to the Purchaser in their sole reasonable discretion, with respect to the value and nature of counsel for Borrowerany property which is Collateral, dated including, without limitation, the date of this AgreementAccounts, substantially in the form of EXHIBIT C.Inventory and the Equipment.
(i) Lender Each Purchaser shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating or with respect to the Borrowing BaseCollateral, such additional information as may be reasonably requested by a Purchaser.
(j) Lender shall have received The representations and warranties on the remainder part of the Commitment FeeCompany contained in Article V of this Agreement shall be true and correct in all material respects (except to the extent that such representations and warranties expressly relate solely to an earlier date).
(k) The Lockbox and No material adverse change in the Concentration Account condition (financial or otherwise), properties, business, or operations of the Company shall have been establishedoccurred and be continuing with respect to the Company since the date of this Agreement.
(l) Lender The Company shall have received obtained all necessary blue sky law permits and qualifications, or secured exemptions therefrom, required by any state or foreign or other jurisdiction for the issuance of the Notes, the Warrants and the Issuable Common Stock (defined below).
(m) The Company shall have filed with Nasdaq a certificate Notification Form: “Listing of Borrower's chief financial officerAdditional Shares” covering the shares of the Company’s Common Stock issuable upon exercise of the Warrants (the “Issuable Common Stock”).
(n) The Company shall have delivered to such Purchaser an opinion, dated as of the Bridge Loan Closing Date, certifying that all from Stoel Rives LLP, counsel to the Company, in substantially the form attached hereto as Exhibit C.
(o) No proceeding challenging this Agreement or the Securities Purchase Agreement and the Related Agreements or the transactions contemplated hereby or thereby, or seeking to prohibit, alter, prevent or materially delay the Bridge Loan Closing, shall have been instituted or be pending before any court, arbitrator, governmental body, agency or official.
(p) Subject to Section 2.7, the issuance of the conditions specified in this Section Bridge Notes, the Warrants and the Issuable Common Stock by the Company shall not be prohibited by any law or governmental order or regulation and any governmental, regulatory or third party consents of approvals, if any, necessary for the sale of the Bridge Notes, the Warrants and the Issuable Common Stock shall have been fulfilledobtained.
(q) The following documents, in a form satisfactory to Purchasers, shall have been duly executed, acknowledged and delivered by all parties thereto, and shall be in full force and effect:
(i) The Securities Purchase Agreement;
(ii) This Agreement;
(iii) The Bridge Notes;
(iv) The Warrants;
(v) A certificate from an officer of the Company with respect to incumbency and resolutions authorizing the execution and delivery of this Agreement and the Related Agreements;
(vi) A Security Agreement of even date herewith, the form of which is attached hereto as Exhibit D (the “Security Agreement”); and
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Bioject Medical Technologies Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement Agreement, to advance sums in respect of the Term Loan, to make the initial Revolving Credit Advances and to make Revolving issue any Letter of Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the NoteNotes, as to which Lender shall receive only one original(1) original of each), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower and any Guarantor shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectsrespects as of the Closing Date (except to the extent such representations and warranties expressly relate to a date other the Closing Date).
(f) Lender shall have received copies of all board of directors resolutions resolutions, consents of Borrowermembers and managers and consents of partners of each Borrower and any Guarantor, and other corporate action taken by Borrower and any Guarantor to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan Loans under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of Borrower and any Guarantor authorized to execute documents on its behalf in connection herewithwith the Loans, all as also certified as of the date of this Agreement by Borrower's ’s or any Guarantor’s, as applicable, chief financial officer or other officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of each Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower issued by the state of organization of each Borrower and by each state in which each Borrower is doing and currently intends to do business for which qualification is required.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation internal financial statements for the six months ended June 30, 2002 (showing results satisfactory to Lender) and an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) Lender shall have received an estoppel certificate substantially in the form of Exhibit D from Borrower’s landlord or sublandlord, as the case may be, with respect to each of the leased Facilities identified on Schedule 4.15.
(m) Lender shall have received a certificate of Borrower's ’s chief financial officer or other officer, dated the Closing Date, certifying that all of the conditions specified in this subsections (c), (d), (e), (f), (g), (i) and (k) of this Section 5.1 have been fulfilled.
(n) The state of title to the Real Property shall be satisfactory to Lender and Lender’s Mortgages shall, except in the case of the Real Property located in Texas and Florida, be insured by a mortgagee title insurance policy (or binding commitment therefor) in form and substance and from a title insurer acceptable to Lender. Such title insurance policy shall be on an American Land Title Association (“ALTA”) form designated by Lender, shall specifically contain no exception as to survey matters (but only with respect to the Florence, Arizona and Xxxxxxx, Puerto Rico properties) or creditors rights, must contain affirmative coverage against mechanics’, contractors’, suppliers’ and/or materialmen’s liens, filed or unfiled, must affirmatively insure that the security instrument is a valid first lien against the fee simple, marketable estate, insuring Lender for a sum not less than an amount acceptable to Lender at Closing and must contain such endorsements as may be required by Lender (including, but not limited to, endorsements covering zoning (ALTA 3.1), variable interest rates, revolving credit, no violations of covenants, conditions and restrictions, street address, no usury violation, environmental liens, tie-in, access, contiguity, encroachment, tax parcel, doing business, mortgage tax, first loss and last dollar) to the extent the same are reasonably available in the jurisdiction where the particular parcel of Real Property is located, and, with respect to the Real Property located in Florence, Arizona and Salinas, Puerto Rico only, shall contain no exceptions for matters which a land survey may have indentified. Fee simple title to the Real Property and to the fixtures, equipment, furniture and personal property encumbered by the Loan Documents shall be marketable, and free and clear of all defects, liens, encumbrances, security interests, assessments, restrictions and easements which are not acceptable to and approved in writing by Lender. If access to the Real Property is by means of easements or leases, said 37 easements or leases shall be satisfactory in form and substance to Lender, shall be insured under the mortgagee’s title insurance policy issued to Lender as part of the insured estate and shall not be subject to any prior liens, encumbrances, covenants or restrictions. All streets necessary to serve the Owned Facilities for the use represented by Borrower shall have been completed and shall be serviceable and all streets to be dedicated shall have been dedicated and accepted for public use and maintenance. A search of the state and local public records shall disclose no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title retention agreements filed and/or recorded against Borrower or the property other than liens which are expressly permitted or otherwise disclosed under this Agreement.
(o) Lender shall have received the following, all in form and substance satisfactory to Lender in its sole and absolute discretion, prior to any disbursement under the Loans:
(1) with respect to each Owned Facility, (i) a Phase I Environmental Site Assessment and (ii) such other documents and materials as Lender shall deem reasonably necessary or appropriate.
(2) with respect to Borrower’s Owned Facilities located in Florence, Arizona and Xxxxxxx, Puerto Rico, (i) such property appraisals, property as-built surveys complying in all respects with the “Minimum Standard Detail requirements for ALTA/ACSM Land Title Surveys,” jointly established and adopted in 1999 by ALTA, the American Congress on Surveying and Mapping and the National Society of Professional Surveyors, and meeting the accuracy requirements of an urban survey, and including items 1 through 16 of Table A thereof (except for item 5 relating to contours of the land), physical and structural inspection reports and other third party reports as Lender shall deem necessary or appropriate and (ii) evidence that the Real Property and all improvements thereon comply with applicable codes, regulations and ordinances, are zoned for their current use, are structurally sound, are adequately served by necessary utilities or self-contained systems, are free of mechanics and materialmens liens, are not the subject to any pending or threatened litigation, are not the subject of any pending or threatened condemnation proceeding and have not been damaged by fire or other casualty.
(p) The Real Property shall be owned by Borrower and shall not be the subject of any transaction whereby the legal or beneficial title to all or any part thereof shall be transferred to anyone other than Borrower, except as otherwise disclosed in the Schedules to this Agreement.
(q) All real estate taxes and assessments, special or otherwise, which are due and payable must be paid in full on or before Closing, unless being contested in accordance with Section 6.6. Borrower shall submit to Lender prior to Closing copies of all recent real estate tax bills, with proof of payment, together with evidence that the mortgaged premises is a separately identifiable tax lot.
(r) Lender shall have received evidence reasonably satisfactory to Lender that the Real Property located in Florence, Arizona and Salinas, Puerto Rico is not within a special flood hazard area and is not eligible for flood insurance under the U.S. Flood Disaster Protection Act of 1973, as amended, or that Borrower is adequately insured against flood damages at such locations.
(s) Borrower shall have received at least $7,500,000.00 in net proceeds from the sale of its Phoenix, Arizona facility.
(t) Borrower shall have a minimum excess availability of at least $3,500,000.00 at Closing.
(u) There shall be no material adverse changes (individually or in the aggregate) in the business or financial conditions or prospects of Borrower, the Facilities or the Collateral, each from what was reflected in the financial statements and other information given to Lender as part of Lender’s underwriting of the Loans.
(v) Lender shall have completed all legal and credit due diligence with respect to Borrower, as described in the Commitment Letter relating to the Loans dated as of July 24, 2002 (“Commitment Letter”).
(w) Borrower shall have complied with all terms and conditions set forth in the Commitment Letter, and all representations and warranties contained therein shall be true and correct.
Appears in 1 contract
Samples: Loan and Security Agreement (Correctional Services Corp)
Conditions Precedent to Agreement. The obligation obligations of Lender to enter into and perform extend to Borrower any Loan as described in this Agreement and to make Revolving Credit Loans is are subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Promissory Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of each of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable, for each of Borrower, Guarantor and AMC; and
(iii) Certified copies of all necessary resolutions of each of the Boards of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Promissory Note; and
(v) A certificate, as of the date of signing of this Agreement, by the President, a Vice President, the Chief Financial Officer or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention, substantially in the form attached hereto as EXHIBIT E;
(B) Enforceability of this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to the Trust Collateral Agent signed by Borrower to the effect set forth in Section 2.7(b);
(ix) The duly executed, original Omnibus Amendment No. 6; and
(x) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation of the Lender Group (or any member thereof) to enter into and perform this Agreement and to make Revolving Credit Loans provide the Commitments hereunder is subject to the following fulfillment, to the satisfaction of Agent as determined in its Permitted Discretion, of each of the conditions precedentprecedent set forth below:
(a) Lender the Closing Date shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at occur on or before Closing (other than the NoteXxxxx 00, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.0000,
(bx) Lender Agent shall have received all searches and good standing certificates financing statements required by Section 3.5.Agent, in form and content satisfactory to Agent, with respect to the Collateral and authorized to be filed by the Borrowers,
(c) Borrower Agent shall then have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in compliance full force and effect:
(i) the Due Diligence Letter responses with all respect to the termsBorrowers,
(ii) the Fee Letter,
(iii) the Guarantee and Debenture duly executed by HH UK, covenants and conditions of and
(iv) the Loan DocumentsOfficers' Certificate for each Borrower.
(d) There Agent shall exist no Event have received a certificate from the Secretary of Default each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and no event which, with performance of this Agreement and the giving other Loan Documents to which such Borrower is a party and authorizing specific officers or agents of notice or such Borrower to execute the lapse of time, or both, could constitute such an Event of Default.same;
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender Agent shall have received copies of all board of directors resolutions of each Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan 's Governing Documents, as well as amended, modified, or supplemented to the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoingClosing Date, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.;
(hf) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender Agent shall have received a certificate of status with respect to each Borrower's chief financial officer, dated within 10 days of the Closing Date, certifying such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received copies of the executed TMP Documents in form and substance satisfactory to Agent, certified as true and correct and in full force and effect by an authorized officer of Parent;
(i) TMP and Parent shall have received all necessary consents to the Spin-Off and the Spin-Off shall have become effective;
(j) Agent shall have received opinions of counsel to Borrowers in form and substance satisfactory to Agent;
(k) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(l) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent;
(m) TMP shall have agreed to provide or continue all letters of credit required by Borrower as of the conditions specified Closing Date;
(n) Parent shall have in place a capital and legal structure satisfactory to Agent in all respects;
(o) Agent shall have received Borrowers' Closing Date Business Plan and projections together with a certificate of the chief financial officer of Parent stating that the Closing Date Business Plan has been prepared on a reasonable basis and in good faith and is based on assumptions believed by Parent to be reasonable at the time made and from the best information then available to Parent;
(p) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers of this Section Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(q) that certain Third Amended and Restated Accounts Receivable Management and Security Agreement by and among GMAC Commercial Finance LLC as successor in interest to BNY Financial Corporation and TMP dated November 5, 1998, as modified, amended, or supplemented, shall have been fulfilledterminated;
(r) No Default or Event of Default shall have occurred and be continuing on the Closing Date, nor shall either result from the effectiveness of this Agreement;
(s) no Material Adverse Change shall have occurred; and
(t) Borrowers shall pay all costs, fees and expenses owing to Agent and Lenders on and as of the Closing Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to Agreement. The obligation of --------------------------------- Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of an executed Officer's Certificate, together with all board of directors resolutions of Borrowerattachments thereto, and other corporate action taken by Borrower in a form acceptable to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably requireLender.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(ih) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(ji) Lender shall have received the remainder of the Commitment Fee.
(kj) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(k) Lender shall have received an estoppel certificate substantially in the form of Exhibit D from Borrower's landlord or sublandlord, as the case may be, with respect to the two facilities located in Winter Park, Florida and the one facility located in Earth City, Missouri.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation obligations of Lender to enter into and perform extend to Borrower any Loan as described in this Agreement and to make Revolving Credit Loans is are subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Promissory Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable; and
(iii) Certified copies of all necessary resolutions of the Board of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Promissory Note; and
(v) A certificate, as of the date of signing of the Agreement, by the President, a Vice President, the Chief Financial Officer or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention substantially in the form attached hereto as EXHIBIT E;
(B) Enforceability of this Agreement, the Promissory Note, Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to the Trust Collateral Agent signed by Borrower to the effect set forth in Section 2.7(b); and
(ix) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform extend to Borrower the Loan as described in this Agreement and to make Revolving Credit Loans is are subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable.; and
(biii) Lender shall have received Certified copies of all searches necessary resolutions of the Board of Directors of Borrower, Guarantor and good standing certificates required by Section 3.5.AMC authorizing the execution and delivery and performance under this Agreement, the Note, the Guarantee and the AMC Guarantee, as applicable; and
(civ) Borrower shall then be in compliance with all the termsThe duly executed, covenants and conditions original Note; and
(v) A certificate, as of the Loan Documents.
(d) There shall exist no Event date of Default and no event whichsigning of the Agreement, with by the giving of notice President, a Vice President or the lapse Treasurer of timeeach of Borrower, or both, could constitute such an Event of Default.
(e) The Guarantor and AMC certifying that the representations and warranties contained in Article IV shall be Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions correct, that each of Borrower, Guarantor and other corporate action taken by Borrower to authorize AMC, as the executioncase may be, delivery is in compliance with the covenants set forth in Sections 5 and performance 6 hereof or in Section 10 of the Loan Documents AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.AMC Guarantee; and
(gvii) Lender shall have received a copy The following opinions of the charter documents of each Borrower, with any amendments counsel in form and substance satisfactory to any of the foregoing, certified by the Secretary of State of the state of each such entityLender's formation, and copies, certified as true, correct and complete by a counsel:
(A) Standard corporate officer opinions of Borrower, of Borrower's bylaws Guarantor and all other documents necessary for performance of the obligations of Borrower under this Agreement AMC regarding due authorization, execution, consents, material litigation and the other Loan Documents.noncontravention;
(hB) Lender shall have received a written opinion of counsel for Borrower, dated the date Enforceability of this Agreement, substantially in the form of EXHIBIT C.Note, Guarantee and the AMC Guarantee;
(iC) Lender shall have received such financial statementsLien, reports, certifications, priority and other operational information required perfection opinions relating to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.pledge of Collateral pledged on the date hereof by Borrower to Lender;
(jD) Lender shall have received the remainder of the Commitment Fee.Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(kE) The Lockbox and the Concentration Account Such other opinions as Lender's counsel shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.reasonably request;
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation of Lender --------------------------------- to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, time or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the articles of incorporation of Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.Exhibit ------- C attached hereto. -
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment FeeFee pursuant to Section 2.4(a)(i)-(iii).
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established, or, with respect to the initial Revolving Credit Loan made hereunder only, Borrower shall have agreed in writing that the Lockbox and the Lockbox Account shall be established, and an agreement executed with the Lockbox Bank, within thirty (30) days of the date of execution of this Agreement; provided that, in such event, during such 30-day period or prior to the Lockbox and the Lockbox Account having been established hereunder, whichever is later (provided that the foregoing language shall not constitute a waiver by Lender of the covenant set forth in this Section 5.1(k)), all collections of Accounts or proceeds of other Collateral, except Private Pay Accounts, received by Borrower during such period shall be held in trust for the benefit of Lender and immediately remitted, in the form received, to the bank designated by Lender.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
(m) Lender shall have received an executed Payoff Letter and Release from the Bank of New York, substantially in the form of Exhibit D --------- attached hereto.
Appears in 1 contract
Samples: Loan and Security Agreement (New York Health Care Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.;
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.;
(c) Borrower and any Guarantor shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.;
(d) There there shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.;
(e) The the representations and warranties contained in Article IV shall be true and correct in all material respects.;
(f) Lender shall have received two (2) duly executed copies of a certificate of the Secretary of Borrower substantially in the form previously provided to Borrower, together with all attachments thereto which attachments shall include, at a minimum, (i) copies, certified as true, correct and complete by the secretary of state of the state of incorporation of Borrower, of the certificate of incorporation of Borrower, together with any and all amendments thereto, (ii) copies, certified by the Secretary of Borrower of the Bylaws of Borrower, together with any and all amendments thereto, (iii) the names and signatures of the officers of the Borrower authorized to execute documents on its behalf in connection with this Agreement and the Loan, including but not limited to any Borrowing Base certificates submitted to Lender by Borrower, and (iv) copies of all board of directors resolutions of Borrower, Borrower and any other corporate action taken by or on behalf of Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.;
(g) Lender shall have received a copy certificates of the charter documents of each Borrower, with any amendments to any of the foregoing, certified good standing for Borrower by the Secretary of State of the state of incorporation of Borrower and by each such entity's formation, state in which Borrower is doing and copies, certified intends as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.date hereof to do business for which qualification is required;
(h) Lender shall have received a written opinion of counsel for BorrowerBorrower and any Guarantor, dated the date of this Agreement, substantially in the form of EXHIBIT C.Exhibit C;
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.;
(j) Lender shall have received the remainder of the Commitment Fee.;
(k) The the Lockbox, Lockbox Account and the Concentration Account shall have been established.established and all of the Lockbox Agreements shall have been executed by each of Borrower and the Lockbox Bank and delivered to Lender;
(l) the transactions described in that certain Asset Purchase Agreement dated April 13, 2001 by and among IVonyx Group Services, Inc. ("IVonyx"), IVonyx, Inc. ("IVonyx Sub" and, together with IVonyx, the "IVonyx Parties"), drkxxx.xxx, Xnc. ("Parent") and Infusion Acquisition Sub, Inc. ("Acquisition Sub"), as amended by that certain Amendment No. 1 to Asset Purchase Agreement dated as of July 30, 2001 and that certain Amendment No. 2 to Asset Purchase Agreement dated as of August 8, 2001 (as amended, the "Asset Purchase Agreement") shall have been consummated;
(m) Borrower shall have provided Lender with evidence establishing to Lender's sole satisfaction that the Assets (as defined in the Asset Purchase Agreement) have been sold, transferred or assigned to Borrower;
(n) Borrower shall have provided Lender with evidence establishing to Lender's sole satisfaction that Borrower has, following the consummation of the Asset Purchase Agreement, received a minimum of One Million and No/100 Dollars ($1,000,000) in capital contributions from drkxxx.xxx, Xnc.;
(o) Lender shall have received a mutually acceptable Intercreditor Agreement duly executed by each of Borrower, the IVonyx Parties and DVI Business Credit Corporation, a Delaware corporation (the "Intercreditor Agreement"); and
(p) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date hereof by an officer of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the articles of incorporation and bylaws of Borrower's bylaws , with any amendments thereto, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Raintree Healthcare Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, Borrower and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of the certificate of incorporation of Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of ---------------------------------- Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct; provided, however, that with respect to the obligation of -------- ------- Lender to make Revolving Credit Loans, the representations and warranties on the part of Borrower contained in Article IV of this Agreement shall be true and correct in all material respectsrespects at and as of the date of disbursement or advance, as though made on and as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date and except that the references in Section 4.7 to financial statements shall be deemed to be a reference to the then most recent annual and interim financial statements of Borrower furnished to Lender pursuant to Section 6.1 hereof).
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.Exhibit C. ---------
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Healthcor Holdings Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied in all material respects and shall then be in compliance in all material respects with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could would constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.for
Appears in 1 contract
Samples: Loan and Security Agreement (Rockwell Medical Technologies Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower and any Guarantor shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions resolutions, consents of Borrowermembers and managers and consents of partners of each Borrower and Guarantor, and other corporate action taken by Borrower and any Guarantor to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of Borrower and Guarantor authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's ’s or Guarantor’s, as applicable, chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower and Guarantor, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each BorrowerBorrower and Guarantor, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of Borrowereach Borrower and Guarantor, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower and Guarantor under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower and Guarantor issued by the state of organization of each Borrower and Guarantor and by each state in which each Borrower and Guarantor is doing and currently intends to do business for which qualification is required.
(h) Lender shall have received a written opinion of counsel for BorrowerBorrower and any Guarantor, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) [INTENTIONALLY OMITTED]
(m) Lender shall have received a certificate of Borrower's ’s chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
(n) Lender shall have received a payoff letter and release from National Century Financial Enterprises, Inc. in a form acceptable to Lender.
(o) Lender shall have received a subordination or estoppel letter from all equipment lenders in a form or forms acceptable to Lender.
(p) Borrower shall have a minimum of $500,000 in cash available as of the Closing Date.
(q) Borrower (i) shall have be current in its payment of all payroll taxes or (ii) shall have received a payoff letter from the Internal Revenue Service and made satisfactory arrangements to discharge all payroll tax obligations immediately upon the first advance of Loan proceeds.
Appears in 1 contract
Samples: Loan and Security Agreement (Southland Health Services, Inc.)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrowerresolutions, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received copies, certified as true, correct and complete by a copy corporate officer of each Borrower, of the charter documents articles/certificate of incorporation of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formationincorporation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) The Borrowing Base Certificate shall have been received and approved by Lender.
(m) Lender shall have received an estoppel certificate substantially in the form of Exhibit E from Borrower's landlord or sublandlord, as the case may be, with respect to each of the facilities identified on Schedule 4.15 (including without limitation the facility to be occupied as set forth in such schedule), or has otherwise complied with Section 6.25 herein.
(n) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (SFBC International Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to shall not make Revolving Credit any Loans is subject to available unless the following conditions precedent:precedent have been satisfied.
(a) Lender shall have received two (2) originals There is no continuing Event of this Agreement and all other Loan Documents required to be executed and delivered at Default, Default or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.Tax Claim;
(b) Lender Borrower’s representations and warranties made in any Loan Document shall be true and correct as if made on the date of such Loan (except to the extent that (i) the facts upon which such representation are based have received all searches been changed by the extension of credit hereunder or by subsequent events and good standing certificates required by Section 3.5.circumstances not constituting violations of the other provisions of this Agreement, or (ii) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(c) Borrower shall then not be in compliance with all default under the terms, covenants and conditions terms of the Loan Documents.Documents which are required to be performed or complied with by it on or prior to the date of such Loans;
(d) There With respect to all Loans, no law, regulation, order, judgment or decree of any governmental authority is in effect or pending which shall exist no Event of Default and no event whichenjoin, with the giving of notice prohibit or the lapse of timerestrain such Loan or impose, or bothresult in the imposition of, could constitute such an Event of Default.any adverse condition upon Lender;
(e) The representations With respect to all Loans, Lender shall have received all documents and instruments which Lender has then reasonably requested as to, (i) the accuracy and validity of or compliance with all representations, warranties and covenants made by any Person in any Loan Document, (ii) the satisfaction of all conditions contained in Article IV herein or therein, and (iii) all other matters pertaining hereto and thereto. All such additional documents and instruments shall be true satisfactory to Lender in form, substance, and correct in all material respects.date;
(f) Lender shall have received copies of all board of directors resolutions of Borrowersatisfactory due diligence analysis including, but not limited to, financial and other corporate action taken by Borrower to authorize the executionoperational data, delivery title and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsenvironmental review, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithdata regarding litigation matters, all as also certified as of the date of this Agreement such data to be provided by Borrower's chief financial officer, and such other papers as Lender may reasonably require.;
(g) Lender shall have received satisfactory information regarding existing operating agreements and all existing gas sales and oil sales agreements which will include, for gas sales on a copy well-by-well basis, where applicable, transportation costs, gathering costs, processing costs, gas stream heating content, then-current market prices for gas of the charter documents similar quality and copies of each Borrowerexisting sales agreements and for oil sales, with any amendments to any individual well specific gravity of the foregoingproduced oil, certified by the Secretary transportation costs, sulfur content, purchase bonuses, then-current market prices for oil of State of the state of each such entity's formationsimilar quality, and copies, certified as true, correct and complete by a corporate officer copies of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.existing sales agreements;
(h) Lender shall have received a written opinion of counsel fully executed and notarized Royalty Interest Conveyance for Borrowereach Royalty Interest Lender is entitled to receive and Borrower is obligated to grant, dated the date of this Agreement, substantially in the form of EXHIBIT C.under Section 8.4; and
(i) Lender No event, which has had (or could reasonably be expected to have) a Material Adverse Effect, shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Baseoccurred.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, the Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's ’s chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the certificate of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l1) Lender shall have received a an estoppel certificate substantially in the form of Exhibit D from Borrower's chief financial officer’s landlord or sublandlord, dated as the Closing Datecase may be, certifying that all with respect to each of the conditions specified in this Section have been fulfilledfacilities identified on Schedule 4.15.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation effectiveness of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is any obligations of the Purchaser hereunder are subject to each of the following conditions precedent:precedent being satisfied in all material respects (as determined by the Purchaser in its reasonable discretion):
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required the conditions precedent to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance effectiveness of each of the Loan other Transaction Documents and (other than a condition precedent in any such other Transaction Document relating to the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date effectiveness of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.Agreement) shall have been fulfilled;
(gb) Lender Purchaser shall have received a copy satisfactory legal opinions from (i) Xxxxx & Xxxxxxx, LLP in respect of certain corporate and enforceability matters and (ii) Xxxxxx & Bird LLP in respect of certain UCC and corporate and enforceability matters under Georgia law;
(c) Purchaser shall have received closing certificates (officer’s certificates certifying to and attaching each party’s constituent documents, resolutions indicating the charter documents authority to execute the Transaction Documents, good standing certificate (or equivalent) and incumbency of each Borrower, with any amendments relevant officers scheduled to any of consummate the foregoing, certified transactions contemplated by the Secretary Transaction Documents) satisfactory to the Purchaser from the Seller and Imperial;
(d) notwithstanding the provisions of State Section 4.01(d), Seller shall have made an arrangement, satisfactory to the Purchaser, in connection with filing and recording, at the Seller’s own expense, all UCC-1 financing statements necessary or advisable to perfect the Purchaser’s ownership interest in the Purchased Assets in each applicable jurisdiction;
(e) Imperial shall have duly executed and delivered to the Purchaser a guarantee of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the Seller’s obligations of Borrower under this Agreement and the other Loan Documents.Transaction Documents in form satisfactory to the Purchaser;
(hf) Lender Purchaser shall have received a written opinion duly executed copies of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.each document listed on Schedule VII hereto; and
(ig) Lender Purchaser shall have received such financial statements, reports, certifications, copies of reports of a UCC lien search conducted in the central filing office and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder any relevant local offices of the Commitment Fee.
(k) The Lockbox Seller, the Transition Purchase Entity and Structured Settlement Trust 2011-A with respect to the Concentration Account shall have been established.
(l) Lender shall have received a certificate Receivables reflecting the absence of Borrower's chief financial officerLiens on the Receivables and Related Assets, dated the Closing Date, certifying that all except for Permitted Liens or Liens created hereunder in favor of the conditions specified in this Section have been fulfilledPurchaser or except for Liens as to which Purchaser has received UCC termination statements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Imperial Holdings, Inc.)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to satisfaction of the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.53.5 hereof.
(c) If a Real Estate Advance shall be made, the Borrower shall have complied with all Conditions to Real Estate Advances.
(d) If an Accounts Receivable Advance shall be made, the Borrower shall have complied with all conditions set forth herein for an Accounts Receivable Advance, including the execution and delivery of the Subordination Agreement. 42
(e) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(df) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(eg) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(fh) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(gi) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents reasonably necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(hj) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.delivered to Lender in connection with the Term Loan.
(ik) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(jl) Lender shall have received the remainder of the Commitment Fee.
(km) The Lockbox and the Concentration Account If an Accounts Receivable Advance is requested, Lender shall have been establishedreceived (i) an estoppel certificate substantially in the form of Exhibit D attached hereto from 43 Borrower's landlord or sublandlord, as the case may be, with respect to each of the Accounts Receivable Facilities; and (ii) the Depository Agreement.
(ln) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that to his/her best knowledge all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of Lender to enter into and -------------------------------------------------- perform this Agreement and to make Revolving Credit Loans Loan is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the the. Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.,
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.of
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (International Nursing Services Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower Borrowers and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower Borrowers shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and the general partner or other corporate action taken by Borrower Borrowers to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower Borrowers authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by each Borrower's chief financial officerofficer or Borrower's general partner (as the case may be), and such other papers as Lender may reasonably require.
(g) Lender shall have received copies, certified as true, correct and complete by a copy corporate officer or the corporate officer of the charter documents general partner (as the case may be)of each Borrower, of the articles of incorporation or formation and bylaws of the general partner, (as the case may be) of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT C.Exhibit D.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder first installment of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received an estoppel certificate substantially in the form of Exhibit E attached hereto from Borrower's landlord or sublandlord, as the case may be, with respect to each of the facilities identified on Schedule 4.15 which is a leased facility.
(m) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Retirement Care Associates Inc /Co/)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at or before prior to Closing (other than the Note, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documentsthereunder, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement hereof by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of each Borrower, of the articles of incorporation of each Borrower's bylaws , with any amendments to any of the foregoing, and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreementhereof, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreementhereunder, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Loan and Security Agreement (Medical Asset Management Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform extend to Borrower the Loan as described in this Agreement and to make Revolving Credit Loans is subject to satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) Lender shall have received two (2) originals The receipt by Lender, concurrently with the signing of this Agreement and all other Loan Documents required and, with respect to paragraph (v) only, together with the financial statements to be executed delivered pursuant to this Agreement, in form and delivered at or before Closing substance satisfactory to Lender, of the following:
(other than i) Evidence of the authority of the persons executing this Agreement, the Promissory Note, as to which Lender shall receive only one original), executed by Borrower the Guarantee and the AMC Guarantee and any other required Personsdocuments contemplated herein and therein, together with specimen signatures of such persons; and
(ii) A certified copy of Borrower's, Guarantor's and AMC's Certificate of Incorporation and By-Laws and a good standing certificate from the State of Delaware and/or of California, as applicable; and
(iii) Certified copies of all necessary resolutions of the Board of Directors of Borrower, Guarantor and AMC authorizing the execution and delivery and performance under this Agreement, the Promissory Note, the Guarantee and the AMC Guarantee, as applicable; and
(iv) The duly executed, original Promissory Note; and
(v) A certificate, as of the date of signing of the Agreement, by the President, a Vice President or the Treasurer of each of Borrower, Guarantor and AMC certifying that the representations and warranties contained in Section 4 hereof or in Section 9 of the AMC Guarantee, as the case may be, are true and correct, that each of Borrower, Guarantor and AMC, as the case may be, is in compliance with the covenants set forth in Sections 5 and 6 hereof or in Section 10 of the AMC Guarantee, as the case may be, and that no Default, Event of Default or Other RF Event of Default has occurred and is continuing; and
(vi) The duly executed, original of the Guarantee and the AMC Guarantee; and
(vii) The following opinions of counsel in form and substance satisfactory to Lender's counsel:
(A) Standard corporate opinions of Borrower, Guarantor and AMC regarding due authorization, execution, consents, material litigation and noncontravention substantially in the form attached hereto as EXHIBIT E;
(B) Enforceability of this Agreement, the Promissory Note, Guarantee and the AMC Guarantee;
(C) Lien, priority and perfection opinions relating to the pledge of Collateral pledged on the date hereof by Borrower to Lender;
(D) Non-consolidation opinions as between Borrower, Guarantor and AMC; and
(E) Such other opinions as Lender's counsel shall reasonably request; and
(viii) A notice to the Trust Collateral Agent signed by Borrower to the effect set forth in Section 2.7(b); and
(ix) Such other documents, certificates or financial or other information as Lender may reasonably request.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5The consummation of the Securitization Transaction.
(c) Borrower The Certificate shall then be have been delivered to Lender or its agent, together with appropriate instruments of transfer duly endorsed in compliance blank, and together with all a Medallion Guarantee with respect to the terms, covenants and conditions of signature on the Loan Documentstransfer power accompanying the Certificate delivered to Lender or its agent on the Closing Date.
(d) There shall exist no Event of Default Financing statements on Form UCC-1 naming Borrower as "debtor" and no event whichLender as "secured party" and describing the Collateral as "collateral" thereunder, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender shall have received copies of all board of directors resolutions of Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been establisheddelivered to Lender in proper form for filing in each jurisdiction in which it is necessary to file to perfect a security interest therein.
(l) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
Samples: Credit and Security Agreement (Long Beach Holdings Corp)
Conditions Precedent to Agreement. The obligation obligations of Lender Agent and each of the Lenders ------------------------------------ to enter into and perform this Agreement and Agreement, to advance sums in respect of the Term Facility, to make Revolving Credit Loans is and to issue Lender Letters of Credit are subject to the following conditions precedent:
(a) Lender Lenders shall have received two ten (210) originals of this Agreement Agreement, the Notes, the Intercreditor Agreement, the Pledge Agreement, and all other Loan Documents required to be executed and delivered at or before Closing (other than the NoteNotes, as to which Lender shall receive only one original(1) original of each), executed by Borrower and any other required Persons, as applicable.
(b) Lender Agent shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower Borrowers shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects, as though made on and as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date).
(f) Lender Agent shall have received copies of all board of directors resolutions resolutions, consents of members and managers and consents of partners of each Borrower, and other corporate action taken by Borrower Borrowers to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan Loans under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of each Borrower authorized to execute documents on its behalf in connection herewithwith the Loans, all as also certified as of the date of this Agreement by each Borrower's chief financial officer, treasurer, or equivalent, as applicable, and such other papers as Lender Agent may reasonably require.
(g) Lender Agent shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of each Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower Borrowers under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower issued by the state of organization of each Borrower and by each state in which each Borrower is doing business for which qualification is required.
(h) Lender Agent shall have received a written opinion of counsel for BorrowerBorrowers, dated the date of this Agreement, substantially Agreement in the form of EXHIBIT C.and substance satisfactory to Agent.
(i) Lender Agent shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender Lenders shall have received the remainder of the Commitment Fee.
(k) The Lockbox HHLP Concentration Account, the Intermediate Collection Account and the Agent's Concentration Account shall have been establishedestablished and Lockbox Agreements, satisfactory to Agent, in its sole discretion, shall have been entered into with the HHLP Collecting Bank and the Intermediate Collecting Bank.
(l) Lender Agent shall have received either (I) an estoppel certificate substantially in the form of Exhibit C, attached hereto, or a subordination agreement or intercreditor agreement from each landlord under --------- the Lessee Leases, or (II) an opinion from counsel to the Company that no statutory landlord's lien is prior to Lender's UCC lien.
(m) Agent shall have received a certificate of Borrower's Borrowers' chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section 5.1 have been fulfilled.
(n) The state of title to the Real Property shall be satisfactory to Agent and Lenders' mortgages, deeds to secure debt or deeds of trust shall be insured by a mortgagee title insurance policy (or binding commitment therefor) in form and substance and from a title insurer acceptable to Agent. Such title insurance policy shall be on an American Land Title Association ("ALTA") form designated by Agent, shall specifically contain no exception as to survey matters or creditors rights, must contain affirmative coverage against mechanics', contractors', suppliers' and/or materialmen's liens, filed or unfiled, must affirmatively insure that the security instrument is a valid first lien against the fee simple, marketable estate, insuring Agent for the benefit of Lenders for a sum not less than the maximum principal amount of all financing hereunder and must contain such endorsements as may be required by Agent (including, but not limited to, endorsements covering zoning (ALTA 3.1), variable interest rates, revolving credit, no violations of covenants, conditions and restrictions, street address, no usury violation, environmental liens, tie-in, access, contiguity, encroachment, tax parcel, doing business, mortgage tax, first loss and last dollar). Fee simple title to the Real Property and to the fixtures, equipment, furniture and personal property encumbered by the Loan Documents shall be marketable, and free and clear of all defects, liens, encumbrances, security interests, assessments, restrictions and easements which are not acceptable to and approved in writing by Lender. If access to the Real Property is by means of easements or leases, said easements or leases shall be satisfactory in form and substance to Lender, shall be insured under the mortgagee's title insurance policy issued to Lender as part of the insured estate and shall not be subject to any prior liens, encumbrances, covenants or restrictions. All streets necessary to serve the property for the use represented by Borrowers shall have been completed and shall be serviceable and all streets to be dedicated shall have been dedicated and accepted for public use and maintenance. A search of the state and local public records shall disclose no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title retention agreements filed and/or recorded against the Borrowers or the property other than liens which are expressly permitted under this Agreement.
(o) Agent shall have received the following, all in form and substance satisfactory to Agent in its sole and absolute discretion:
(1) such property appraisals, property as-built surveys complying in all respects with the "Minimum Standard Detail requirements for ALTA/ACSM Land Title Surveys," jointly established and adopted in 1999 by ALTA, the American Congress on Surveying and Mapping and the National Society of Professional Surveyors, and meeting the accuracy requirements of an urban survey, and including items 1 through 16 of Table A thereof (except for item 5 relating to contours of the land), environmental reports, physical and structural inspection reports and other third party reports as Lender shall deem necessary or appropriate;
(2) evidence that the Real Property and all improvements thereon comply with applicable codes, regulations and ordinances, are zoned for their current use, are structurally sound, are adequately served by public utilities, are completed free of mechanics and materialmen's liens, are not the subject to any pending or threatened litigation, are not the subject of any pending or threatened condemnation proceeding and have not been damaged by fire or other casualty;
(3) copies of all Leases pertaining to the Real Property, and copies of all Lessee Leases; and
(4) such other documents and materials as Agent shall reasonably deem necessary or appropriate.
(p) The Real Property shall be owned by a Borrower, and the leasehold estate in the Lessee Leases shall be held by a Borrower, and they shall not be the subject of any transaction whereby the legal or beneficial title to all or any part thereof shall be transferred to anyone other than a Borrower.
(q) All real estate taxes and assessments, special or otherwise, which are due and payable with respect to each Real Property must be paid in full on or before Closing. Borrowers shall submit to Agent prior to Closing copies of all recent real estate tax bills, with proof of payment, together with evidence that each Real Property is a separately identifiable tax lot.
(r) Agent shall have received evidence satisfactory to Agent that the Real Property is not within a special flood hazard area and is not eligible for flood insurance under the U. S. Flood Disaster Protection Act of 1973, as amended.
Appears in 1 contract
Samples: Loan and Security Agreement (Harborside Healthcare Corp)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving advances under any Credit Loans Facility is subject to the satisfaction of each and every one of the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Pledge Agreements, the Mortgages, the Environmental Indemnity and all other Loan Documents required to be executed and delivered at or before Closing (other than the NoteNotes, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.55.34.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event which, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions of each entity comprising Borrower, and other corporate action necessary to be taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's ’s chief financial officer, or equivalent, and such other papers related documents as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each entity comprising Borrower, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each entity comprising Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of each entity comprising Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each entity comprising Borrower issued by the state of organization of each such Person and by each state in which each such Person is doing and currently intends to do business for which qualification is required and where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.
(h) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.and substance satisfactory to Lender.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Feeall commitment fees provided for herein.
(k) The Lockbox and the Concentration Account Lender shall have been establishedreceived an estoppel certificate and landlord waiver, in form and substance satisfactory to Lender, from Borrower’s landlord or sublandlord, as the case may be, with respect to each of the Locations identified on the Information Certificate.
(l) All of the obligations of Borrower to any prior lender (other than lenders pursuant to Borrowed Money permitted under Section 6.1) as in effect immediately prior to the Closing Date will be performed and paid in full from the proceeds of the initial advances under the Credit Facilities on the Closing Date and all Liens of any such prior lender on any property of Borrower in respect thereof will be terminated immediately upon such payment;
(m) Lender shall have received evidence satisfactory to it that the insurance policies required under Article V are in full force and effect, together with written evidence showing loss payable or additional insured clauses or endorsements in favor of Lender as required under such section;
(n) Lender shall have received a certificate of Borrower's ’s chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section 3.1 have been fulfilled;
(o) Lender shall have received a complete, self-contained FIRREA compliant appraisal report for the Real Property, which appraisal shall demonstrate that the aggregate fair market value of such Real Property is no less than $15 million and which shall be otherwise in form and substance and from a qualified appraiser acceptable to Lender in its discretion;
(p) Lender shall have received not later than ten (10) days prior to the Closing Date and subsequently approved commitments for title insurance in an amount and issued by one or more title insurance companies satisfactory to Lender and on the Closing Date, Lender shall receive Title Policies covering all of the Real Property;
(q) Lender shall have received not later than ten (10) days prior to the Closing Date, and subsequently approved three (3) original surveys of the Real Property, dated no more than thirty (30) days prior to the Closing Date, prepared by a registered land surveyor in accordance with the 1999 American Land Title Association/American Congress on Surveying and Mapping National Society of Professional Surveyors Minimum Standard Detail Requirements and certified in favor of Lender and the title insurer in form and substance satisfactory to Lender, which surveys shall certify that the Real Property is not in a flood hazard area as identified by the Secretary of Housing and Urban Development and shall also be sufficient for the title insurer to remove the general survey exception;
(r) Lender shall have received, not later than ten (10) days prior to the Closing Date, (i) a Phase I environmental audit report, (ii) an asbestos inspection report, and (iii) a mechanical and structural inspection report, which reports shall (A) be performed by independent consultants retained by Lender (B) be addressed and certified to Lender, (C) state that Lender may rely thereon and (D) be acceptable to Lender in its discretion; and
(s) Lender shall have received and approved all of the Borrower Contracts.
Appears in 1 contract
Conditions Precedent to Agreement. The obligation of the Lender Group (or any member thereof) to enter into and perform this Agreement and to make Revolving Credit Loans provide the Commitments hereunder is subject to the following fulfillment, to the satisfaction of Agent as determined in its Permitted Discretion, of each of the conditions precedentprecedent set forth below:
(a) Lender the Closing Date shall have received two (2) originals of this Agreement and all other Loan Documents required to be executed and delivered at occurred on or before Closing (other than the NoteMarch 31, as to which Lender shall receive only one original), executed by Borrower and any other required Persons, as applicable.2003,
(b) Lender Agent shall have received all searches and good standing certificates financing statements required by Section 3.5.Agent, in form and content satisfactory to Agent, with respect to the Collateral and authorized to be filed by Borrowers,
(c) Borrower Agent shall then have received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in compliance full force and effect:
(i) the Due Diligence Letter responses with all respect to the termsBorrowers,
(ii) the Fee Letter,
(iii) the Guarantee and Debenture duly executed by HH UK, covenants and conditions of and
(iv) the Loan DocumentsOfficers' Certificate for each Borrower.
(d) There Agent shall exist no Event have received a certificate from the Secretary of Default each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and no event which, with performance of this Agreement and the giving other Loan Documents to which such Borrower is a party and authorizing specific officers or agents of notice or such Borrower to execute the lapse of time, or both, could constitute such an Event of Default.same;
(e) The representations and warranties contained in Article IV shall be true and correct in all material respects.
(f) Lender Agent shall have received copies of all board of directors resolutions of each Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan 's Governing Documents, as well as amended, modified, or supplemented to the names and signatures of the officers of Borrower authorized to execute documents on its behalf in connection herewith, all as also certified as of the date of this Agreement by Borrower's chief financial officer, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy of the charter documents of each Borrower, with any amendments to any of the foregoingClosing Date, certified by the Secretary of State of the state of each such entity's formation, and copies, certified as true, correct and complete by a corporate officer of Borrower, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents.;
(hf) Lender shall have received a written opinion of counsel for Borrower, dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox and the Concentration Account shall have been established.
(l) Lender Agent shall have received a certificate of status with respect to each Borrower's chief financial officer, dated within 10 days of the Closing Date, certifying such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Agent shall have received copies of the executed TMP Documents in form and substance satisfactory to Agent, certified as true and correct and in full force and effect by an authorized officer of Parent;
(i) TMP and Parent shall have received all necessary consents to the Spin-Off and the Spin-Off shall have become effective;
(j) Agent shall have received opinions of counsel to Borrowers in form and substance satisfactory to Agent;
(k) Agent shall have received satisfactory evidence (including a certificate of the chief financial officer of Parent) that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(l) Agent shall have completed its business, legal, and collateral due diligence, including a collateral audit and review of Borrowers' books and records and verification of Borrowers' representations and warranties to the Lender Group, the results of which shall be satisfactory to Agent;
(m) TMP shall have agreed to provide or continue all letters of credit required by Borrower as of the conditions specified Closing Date;
(n) Parent shall have in place a capital and legal structure satisfactory to Agent in all respects;
(o) Agent shall have received Borrowers' Closing Date Business Plan and projections together with a certificate of the chief financial officer of Parent stating that the Closing Date Business Plan has been prepared on a reasonable basis and in good faith and is based on assumptions believed by Parent to be reasonable at the time made and from the best information then available to Parent;
(p) Borrowers shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrowers of this Section Agreement or any other Loan Document or with the consummation of the transactions contemplated hereby and thereby;
(q) that certain Third Amended and Restated Accounts Receivable Management and Security Agreement by and among GMAC Commercial Finance LLC as successor in interest to BNY Financial Corporation and TMP dated November 5, 1998, as modified, amended, or supplemented, shall have been fulfilledterminated;
(r) No Default or Event of Default shall have occurred and be continuing on the Closing Date, nor shall either result from the effectiveness of this Agreement;
(s) no Material Adverse Change shall have occurred; and
(t) Borrowers shall pay all costs, fees and expenses owing to Agent and Lenders on and as of the Closing Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, any Guaranty and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower and any Guarantor shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions resolutions, consents of Borrowermembers and managers and consents of partners of each Borrower and Guarantor, and other corporate action taken by Borrower and any Guarantor to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of Borrower and Guarantor authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's or Guarantor's, as applicable, chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower and Guarantor, of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each BorrowerBorrower and Guarantor, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of Borrowereach Borrower and Guarantor, of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower and Guarantor under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower and Guarantor issued by the state of organization of each Borrower and Guarantor and by each state in which each Borrower and Guarantor is doing and currently intends to do business for which qualification is required.
(h) Lender shall have received a written opinion of counsel for BorrowerBorrower and any Guarantor, dated the date of this Agreement, substantially in the form of EXHIBIT Exhibit C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received the remainder of the Commitment Fee.
(k) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(l) Lender shall have received an estoppel certificate substantially in the form of Exhibit D from Borrower's landlord or sublandlord, as the case may be, with respect to each of the facilities identified on Schedule 4.15.
(m) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
(n) Lender shall have received evidence of that Borrower has completed the sale of its New Jersey operations and the assignment of its New York operations to Premier Home Healthcare Services, Inc.
(o) Lender shall have received payoff letters from Health Care Financing Group, Inc. relating to its asset based revolving loan to Borrower and National Home Health Care Corp. relating to Borrower's obligations thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Star Multi Care Services Inc)
Conditions Precedent to Agreement. The obligation of Lender to enter into and perform this Agreement and to make Revolving Credit Loans is subject to the following conditions precedent:
(a) Lender shall have received two (2) originals of this Agreement Agreement, the Certificate of Validity, the Stock Pledge Agreements, and all other Loan Documents required to be executed and delivered at or before Closing (other than the Note, as to which Lender shall receive only one (1) original), executed by Borrower and any other required Persons, as applicable.
(b) Lender shall have received all searches and good standing certificates required by Section 3.5.
(c) Borrower shall have complied and shall then be in compliance with all the terms, covenants and conditions of the Loan Documents.
(d) There shall exist have occurred and be continuing no Event of Default and no event whichthat, with the giving of notice or the lapse of time, or both, could constitute such an Event of Default.
(e) The representations and warranties contained in Article IV shall be true and correct in all material respectscorrect.
(f) Lender shall have received copies of all board of directors resolutions resolutions, consents of members and managers and consents of partners of each Borrower, and other corporate action taken by Borrower to authorize the execution, delivery and performance of the Loan Documents and the borrowing of the Loan under the Loan Documents, as well as the names and signatures of the officers of, members and managers of and partners of Borrower authorized to execute documents on its behalf in connection herewithwith the Loan, all as also certified as of the date of this Agreement by Borrower's chief financial officer, or equivalent, and such other papers as Lender may reasonably require.
(g) Lender shall have received a copy (i) copies, certified as true, correct and complete by the applicable state of organization of each Borrower of the charter documents certificate of incorporation, certificate of formation or certificate of limited liability partnership of each Borrower, with any amendments to any of the foregoing, certified by the Secretary of State of the state of each such entity's formation, and (ii) copies, certified as true, correct and complete by a corporate officer an authorized officer, member or partner of Borrower, each Borrower of Borrower's bylaws and all other documents necessary for performance of the obligations of Borrower under this Agreement and the other Loan Documents, and (iii) certificates of good standing for each Borrower issued by the state of organization of each Borrower and by each state in which each Borrower is doing and currently intends to do business for which qualification is required.
(h) Lender shall have received a written opinion of counsel for Borrower, Borrower dated the date of this Agreement, substantially in the form of EXHIBIT C.
(i) Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including including, without limitation limitation, an initial Borrowing Base Certificate borrowing base certificate calculating the Borrowing Base.
(j) Lender shall have received evidence of all of Borrower's applications for registration of copyrights and registration numbers of the remainder of following software products with the United States Copyright Office:
(i) IDXtend 9.0; (ii) IDXtend 2.0 for the Web; (iii) LASTWORD 4.0; and (iv) CARECAST 5.0.
(k) Lender shall have received the Commitment Fee.
(kl) The Lockbox, Lockbox Account and the Concentration Account shall have been established.
(lm) Lender shall have received a certificate of Borrower's chief financial officer, dated the Closing Date, certifying that all of the conditions specified in this Section have been fulfilled.
Appears in 1 contract
